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THE WEEK IN TORTS

FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 19
CASES FROM THE WEEK OF MAY 9, 2014

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANTS IN SCUBA DIVING DEATH CASE

Diodato v. Islamorada Asset Management, 39 Fla. L. Weekly D913 (Fla. 3rd DCA April 30, 2014):

The plaintiffs went scuba diving, and the wife unfortunately drowned. The plaintiffs had signed releases the year before the accident, as well as on the day before, releasing claims related to a shallow reef dive.

Despite the thorough releases (one release said it was valid for one year from the date of execution), the “activity” referred to ten times in the body of the release and contemplated and paid for by the plaintiffs the year before was a series of six open water reef dives with a maximum depth of 20 to 35 feet over four days. However, for the dive the plaintiff died on, the defendant’s procedures required a different form and release, addressing additional hazards.

Because exculpatory releases are disfavored and narrowly construed, the court found it had to reverse the final summary judgment entered based on the execution of these releases, because the ones signed did not cover the hazards the decedent ultimately had to succumb to.

TRIAL COURT PROPERLY FOUND NO COVERAGE UNDER POLICY WHERE POLICY HAD EXPIRED–INSURER COMPLIED WITH REQUIREMENT OF PROVIDING NOTICE OF PAYMENT DUE IN ADVANCE OF DUE DATE

Rodriguez v. Security National Insurance Co., 39 Fla. L. Weekly D909 (Fla. 3rd DCA April 30, 2014):

In this dec action which plaintiff filed after entering into a consent judgment for $2.5 million dollars, the plaintiff asserted that the insurer failed to put the insured on notice that his policy was about to lapse, and thus, the policy was in full force and effect on the date of the accident notwithstanding, that it had expired two months prior to the accident.

The insurer argued that it sent notice to the address on the policy prior to the policy lapse date, advising that a renewal premium was due to maintain the policy in force. Plaintiff argued that the insurer’s mailing of renewal offers and notice of expiration was insufficient to terminate the policy prior to the accident date (the insurer had mailed notices to the address on the policy declaration sheet, but because the address was missing the apartment number, the insured did not receive any of the notices).

Importantly, §627.728(5) simply requires the insurer to send notice to the named insured at the address shown in the policy. Because the insurer did this, it complied with the statute. As the insured failed to include any apartment number in his insurance application to begin with, and no apartment number appeared in the policy declarations page, that fault cannot be imputed to the insurer. The court upheld the finding of no coverage.

TRIAL COURT IMPROPERLY DENIED DEFENDANT’S MOTION TO DISMISS ON BASIS OF IMMUNITY UNDER “STAND YOUR GROUND” LAW, WITHOUT CONDUCTING AN EVIDENTIARY HEARING, NECESSITATING THE GRANTING OF A WRIT OF PROHIBITION

Professional Roofing and Sales v. Flemmings, 39 Fla. L. Weekly D910 (Fla. 3rd DCA April 30, 2014):

Because there was a question as to whether the defendant was justified in using force against the plaintiff under Florida’s Stand Your Ground law, the Third District granted a petition for writ of prohibition. It then remanded for an evidentiary hearing on that issue in the civil case the plaintiff brought against the defendant’s employer.

TRIAL COURT ERRED IN SETTING ASIDE JURY VERDICT TO OVERRIDE THE JURY’S FINDINGS, BASED ON EVIDENCE NEVER PRESENTED TO IT

Paulette v. Ulysse, 39 Fla. L. Weekly D921 (Fla. 1st DCA April 30, 2014):

In this PIP case, the trial court granted directed verdict as to entitlement to past medical expenses for four months, but reserved ruling as to the disputed amount of expenses. The court then set aside the jury verdict as to that disputed amount, notwithstanding that the record shows the jury was presented with evidence, instructed and given a verdict form permitting it to decide the issues. After the verdict though, the trial judge conducted a hearing and overrode the verdict based on evidence of questionable admissibility, and never even presented to the jury.

The court admonished that the defendant could not assert that the issue was not a jury question, when defendant did not object to the jury instructions or the verdict form giving the very issue to the jury.

Additionally, the trial judge was not authorized to completely override the jury’s verdict based on evidence the jury never even heard.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT IN SLIP AND FALL CASE AGAINST A COUNTRY CLUB, WHERE THE EVIDENCE WAS THE PATRONS ROUTINELY TOOK DRINKS ON TO THE DANCE FLOOR

Feris v. Club Country of Fort Walton Beach, 39 Fla. L. Weekly D922 (Fla. 1st DCA April 30, 2014):

The plaintiff sued the country club, asserting that he was an invitee who fell on the dance floor at the club, and the club knew or should have known of the dangerous condition because it permitted patrons to take drinks on to the dance floor in the area where he fell.

The defendant moved for summary judgment arguing that §768.0755 (2010) requires a plaintiff to establish the defendant’s knowledge of a dangerous condition. The country club agreed that while constructive knowledge may be established by showing the condition existed for such a length of time that the defendant should have known of it through the exercise of ordinary care, in this case, there was no evidence as to how long the slippery substance leading to the plaintiff’s fall had been on the floor.

The plaintiff filed affidavits and deposition transcripts of witnesses who testified that they saw the plaintiff fall, and also saw people standing on the dance floor with drinks in hand. Plaintiff also said that after he fell, his clothes smelled of alcohol, but he was not holding a drink when he fell.

Under the new statute, if a person slips on a transitory foreign substance, the injured person must prove the business establishment had actual or constructive knowledge of the dangerous condition, and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that the dangerous condition existed for a length of time that in the exercise of ordinary care, the business establishment should have known of the condition (or that the condition occurred with regularity and was therefore foreseeable).

Because the plaintiff here showed that he was a business invitee of the club, and further demonstrated circumstantial evidence from which the jury could infer that the club or its agents allowed or caused a dangerous condition to exist, and the condition existed with such regularity that the club “knew or reasonably should have known” of its existence, causing the court to reverse the entry of summary judgment for the club.

While the First District’s reversal did not necessitate a retroactivity analysis (the accident happened a month after the law was enacted), the court noted that the law contained no express statement as to the legislature’s intent on retroactive application, and no circumstances to establish clear evidence of legislative intent for retroactivity. Thus, while it was not relevant in this particular case, the court concluded the statute was not meant to be applied retroactively.

ERROR TO GRANT SUMMARY JUDGMENT IN FAVOR OF EMPLOYER ON GROUND THAT EMPLOYEE ACTED OUTSIDE THE SCOPE OF HIS EMPLOYMENT WHEN THERE WAS A FACTUAL ISSUE AS TO WHETHER THE EMPLOYEE’S PURPOSE WAS AT LEAST IN PART TO SERVE THE EMPLOYER

Trabulsy v. Publix, 39 Fla. L. Weekly D927 (Fla. 5th DCA April 30, 2014):

While plaintiff was shopping at Publix, he momentarily left his grocery cart unattended. A Publix employee noticed the unattended cart, assumed it had been abandoned, and began to reshelve the items. When the plaintiff discovered the cart had been moved, he confronted the employee, and the two got into an altercation culminating with the employee shoving the plaintiff, and causing him to fall. The trial court granted summary judgment for Publix, finding the employee acted outside the scope of his employment.

Because there is a view of these facts to support that the employee’s loss of control was motivated by his purpose to serve his employer, Publix, the record contained an issue of fact on that question. This was not a case where the employer’s business was merely incidental to the encounter; here, the dispute was directly related to the business of the employer.