The Week In Torts

By Julie H. Littky-Rubin

FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 4
CASES FROM THE WEEK OF JAN. 24, 2014

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT WHEN PLAINTIFF PURPOSELY WALKED THROUGH LANDSCAPING AREA BECAUSE IT WAS A SHORTER DISTANCE FROM HIS CAR TO THE ENTRANCE AND TRIPPED ON A TREE ROOT Wolf v. Sam’s East, 39 Fla. L. Weekly D157 (Fla. 4th DCA January 15, 2014):

Plaintiff went to Sam’s Club and walked through a landscape area that had dirt, trees, grass and mulch in it. The landscape area had a concrete walkway, which would have enabled him to walk through without walking into the landscape area.

The plaintiff crossed into the landscape area, did not use the walkway, and fell on a tree root. While he testified he was aware there were trees in the landscaping areas, he had not consciously noted the tree root before the accident.

Plaintiff sued Sam’s Club, alleging the store breached its duty to maintain the premises in a reasonably safe condition by allowing the tree roots to grow above ground in the landscape areas. Plaintiff also alleged Sam’s Club failed to warn him of the latent danger posed by the tree roots, which plaintiff alleged were obscured by grass and leaves.

During discovery, Sam’s Club disclosed that two other people had tripped over tree roots when crossing the landscape areas in the three years before plaintiff’s accident. An employee further testified that Sam’s Club was responsible for evaluating potential hazards to members in the parking lot.

Sam’s Club moved for summary judgment. It argued that even taking the evidence in a light most favorable to the plaintiff, plaintiff himself was solely liable for the accident, because he chose to walk across the area even though he knew there were concrete walkways for that very purpose. While the trial court initially denied the motion, Sam’s Club moved for rehearing based on Dampier v. Morgan Tire, 82 So. 3d 204 (Fla. 5th DCA 2012), and the judge granted the summary judgment.

The Fourth District affirmed. Finding the tree roots were so open and obvious so as not to constitute a dangerous condition as a matter of law, the court’s conclusion was reinforced by the fact that the plaintiff could have easily and safely crossed the landscaping area using the concrete walkway only a few feet away. The court rejected the plaintiff’s arguments that the above-ground tree roots were not easily visible stating that the precise nature of the hazard need not be observable and it was obvious to anyone that it would be a hazard for walking.

The court also rejected reversal simply because other people had tripped on those same roots in the years before. Plaintiff relied on a First District case stating that evidence of the occurrence or non-occurrence of prior accidents can serve to prove whether the proprietor of a business should have anticipated harm to his invitees despite the obviousness of the condition. Williams v. Madden, 588 So. 2d 41 (Fla. 1st DCA 1991). However, the Fourth District distinguished that case, because there the plaintiff fell in an area that was apparently intended for walking. Here, the plaintiff was knowingly cutting through landscaping area rather than using the concrete walkways designed for that purpose. Thus, the prior falls did not create a duty on the part of Sam’s Club to make the landscaping area safe for pedestrian traffic in this case, and summary judgment was proper.

PUBLIC FIGURE STATED CAUSE OF ACTION FOR LIBEL AGAINST A NEWSPAPER AND ISSUES EXISTED REGARDING THE FALSITY OF THE REPRESENTATIONS MADE BY THE NEWSPAPER AGAINST A CANDIDATE FOR THE U.S. SENATE

Greene v. Times Publishing Co., 39 Fla. L. Weekly D159 (Fla. 3rd DCA January 15, 2014):

Former senate candidate, Jeff Greene, sued the St. Petersburg Times for publishing articles containing defamatory statements shortly before the election.

There are five elements of a legally sufficient cause of action for libel involving a public figure: (1) publication; (2) falsity; (3) the defendant’s knowledge of, or reckless disregard for, the falsity (i.e., actual malice); (4) actual damages; and (5) the false statement must be defamatory. In this case, the key elements in contention were the falsity of the statements (involving sexcapades on his yacht and participation in an illegal real estate deal).

The court explicitly expressed no opinion regarding the accuracy of the plaintiff’s allegations and his ability to prove them. It did hold, though, that at the preliminary point of assessing the legal sufficiency of the claim and the attachments, the plaintiff had adequately detailed a cause of action for libel.

LETTER TO CITY DESCRIBING ACCIDENT, INJURIES, THE AMOUNT OF BILLS AND MAKING DEMAND WAS SUFFICIENT TO SATISFY STATUTORY NOTICE REQUIREMENT

Vargas v. City of Fort Meyers, 39 Fla. L. Weekly D165 (Fla. 2nd DCA January 17, 2014):

Plaintiff’s counsel sent Fort Meyers a letter informing it of an accident between the plaintiff and a Fort Meyers’ police officer. About two years later, plaintiff provided Fort Meyers with another letter describing the accident, the injuries, the cost of the medical bills and a demand for the full policy limits.

Eighteen months later, Fort Meyers sent a letter advising plaintiff that it was self-insured. It also notified plaintiff that the three year notice had expired.

Plaintiff then sued Fort Meyers and the police officer who drove the car. She filed an amended complaint attaching the demand letter sent two years after the accident. The trial court ultimately granted the city’s motion for summary judgment based on plaintiff’s failure to comply with the notice requirement of §768.28(6)(a).

The notice requirement is a condition precedent to maintaining an action. Its purpose is to provide the state and its agency sufficient notice of claims filed against them to investigate and respond. The notice must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim or the demand. It also must be sufficiently described so the agency may investigate it.

In this case, the letter sent described the accident, the injuries, the amount of medical bills and that a demand was being made. Fort Meyers was put on adequate notice and was able to investigate the claim based on the information provided in the letter. As such, the letter did satisfy the notice requirement set forth by §768.28(6)(a).

The trial court also granted summary judgment in favor of Fort Meyers on the basis that the statute of limitations had expired. Because plaintiff’s amended complaint simply dropped the police officer as a party to the action and alleged that she had satisfied the notice requirement, it related back to the original filing.

Please feel free to contact me with any questions about appellate issues you may have.

Best Regards,

Julie Littky-Rubin