FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 14

“Duty is as duty does …”

CASES FROM THE WEEK OF APRIL 3, 2015

SUPREME COURT FINDS SCHOOL DISTRICT OWED A DUTY TO A COLLAPSING AND ULTIMATELY BRAIN INJURED HIGH SCHOOL STUDENT FOR FAILING TO MAINTAIN A DEFIBRILLATOR AFTER ALL.

Limones v. School District of Lee County, 40 Fla. Law Weekly S182 (Fla. April 2, 2015):

A 15 year old boy collapsed during a high school soccer game. He lost consciousness and stopped breathing, and the coach was unable to detect a pulse. The coach, who was certified in the use of an automated external defibrillator (AED) yelled for it, and while the school had one, it was never brought on the field to the coach so he could use it to revive the boy.

When EMS came they were able to revive him, but it was 26 minutes after he collapsed. While the boy survived, he suffered a severe brain injury due to the lack of oxygen. He will require full-time care for the remainder of his life, and is now in a nearly persistent vegetative state.

Plaintiff’s expert determined that the boy had suffered from a previously undetected underlying heart condition, and found that if shocks from the AED had been administered earlier, oxygen would have been restored to the boy’s brain sooner, and he would not have suffered the brain injury that left him in this state.

The trial court granted summary judgment for the school board, finding it had no duty to use the available AED on the boy after he collapsed.

The Second District recognized that the board did owe a duty to supervise its students, which in the context of student athletes includes a duty to prevent aggravation of an injury. However, the Second District after analyzing the facts, determined there was no duty under the undertaker’s doctrine, nor under F.S. Section 1006.165, that imposed a duty to use an AED on the boy. It affirmed the entry of summary judgment.

The supreme court began by explaining how under McCain, the judicial determination of the existence of duty is a minimal threshold that merely opens the courthouse doors. While the Second District had determined that there is a clearly recognized duty under Florida law for school employees to reasonably supervise students during activities that are subject to the control of the school, the court incorrectly expanded Florida law and invaded the province of the jury, when it further considered whether post-injury efforts required the defendant to make available, diagnose the need for, or use the AED on the boy. The supreme court found that such a detailed analysis exceeded the threshold requirement that the court established in McCain.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates a duty. Schools and students have a special relationship based upon the fact that a school functions–at least partially–in the place of parents during the school day, and during school sponsored activities. This special relationship requires schools to reasonably supervise its students during all activities subject to the control of the school.

The court observed that lower courts in Florida have recognized that the duty of supervision creates specific duties to student athletes which include a) adequate instruction of student athletes; b) proper equipment; c) reasonable matching of participants; d) adequate supervision of athletic events; and e) taking appropriate measures after a student is injured to prevent aggravation of injury.

In this case, the boy was a student injured while participating in a school sponsored soccer game under the supervision of school officials. Thus, there was a duty owed to take appropriate post-injury efforts to avoid or mitigate further aggravation of injury.

The supreme court explicitly rejected the Second District’s decision to narrowly frame the issue as to whether there was a specific duty to diagnose the need for or use an AED. The court acknowledged its cognizance of the concern of defining a duty to require every high school to provide an AED at every athletic practice and contest, and the implications of incurring expenses on that, but said that the flexible nature of reasonable care delineated, can be evaluated on a case-by-case basis. The duty does not change with regard to using reasonable care to supervise and assist students, but the methods and means of fulfilling that duty will depend on the circumstances.

Because the Florida legislature has “compulsory” school requirements, and has specifically mandated that high schools that do participate in interscholastic athletics acquire an AED and train appropriate personnel on its use, this case is different from those cases involving AEDs in commercial places like health clubs (where there is no duty to have or use).

Finally, the court addressed statutory immunity pursuant to §768.13 and §768.1325 generally regulating immunity under the Good Samaritan Act and the Cardiac Arrest Survival Act. The supreme court said there is immunity for use of the AED, but not for “not using” an available AED. Because the legislature enacted the law to use an AED under §1006.165, it demonstrated an intent and the concern of the risk of cardiac arrest among high school students. Thus, to extend the shield of immunity to those who make no attempt to use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency situations.

NEW RULES FOR CERTIFICATION AND REGULATION FOR INTERPRETERS.

In re: Amendments to the Florida Rules for Certification and Regulation of Spoken Language Court Interpreters, 40 Fla. Law Weekly S177 (Fla. March 31, 2015):

For those needing to use court interpreters, the supreme court adopted new rules and amendments to the Code of Professional Conduct applying them to court interpreters.

Some of the amendments went into effect on April 1, 2015 and the remaining ones will take effect on October 1, 2015. The rules can be found in 14.210 et seq.

STATUTE OF REPOSE RUNS FROM THE DATE OF THE DEFENDANT’S LAST WRONGFUL CONDUCT–TO AVOID A STATUTE OF REPOSE DEFENSE, A PLAINTIFF NEED NOT DEMONSTRATE RELIANCE DURING THE REPOSE PERIOD.

Phillip Morris USA v. Russo, 40 Fla. Law Weekly S186 (Fla. April 2, 2015):

Pursuant to §95.031(2), fraud claims must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered. In this tobacco case, the defendant contended that the plain language of the statute required proof of reliance on an act committed no more than 12 years before the complaint was filed. However, the supreme court held that the evidence of reliance need not be established within the fraud statute of repose period under the law.

FOURTH DISTRICT DENIES MOTION FOR REHEARING AND CERTIFICATION, BUT ISSUES NEW OPINION.

In this case reported a few weeks ago, the Fourth District still affirmed the defense verdict against a road design company. The Court reiterated its findings that theSlavin doctrine (where the liability of a contractor is cut off after the owner has accepted the work performed, if the alleged defect is patent and the owner could have discovered and remedied), does apply to a road design company. Here, the design company’s duty as a subcontractor was to design the traffic signals. It had completed its duty under the contract before the construction was completed, and the F.D.O.T. did accept the plans.

Because these were patent defects, it would be wrong under Slavin to hold the contractor responsible. The trial court also did not error in permitting the jury to determine whether the defect was patent and whether the project was accepted. There were factual disputes on these issues which precluded the court from deciding them as a matter of law.

TRIAL COURT DID NOT ERR IN REFUSING TO GIVE A NEGLIGENCE PER SE INSTRUCTION FOR VIOLATIONS OF NATIONAL ELECTRIC SAFETY CODE–DECEDENT NOT AMONG CLASS OF PERSONS SUCH PROVISION WAS DESIGNED TO PROTECT.

Vitrano v. FPL, 40 Fla. Law Weekly D732 (Fla. 4th DCA March 25, 2015):

A man was electrocuted while trimming a tree. The jury found for the defendant, FPL. Prior to the man trimming trees on someone’s property, FPL had visited the property and observed that the palm fronds were in close proximity to the power lines. FPL did not warn the homeowner that the tree near the power lines was a hazard, and should not be trimmed. There was no mention of this even after the homeowner told FPL that he was having all the trees trimmed that day. FPL also did not provide any guard on the power line.

The plaintiff sued FPL asserting it had actual knowledge of the dangerous condition. The personal representative claimed that FPL was negligent for creating the dangerous condition by permitting the trees to grow up and through its power lines, and for then failing to trim and maintain them, and failure to warn about them.

At trial, plaintiff sought to prove a violation of two provisions of the NESC (dealing with inspection and testing of lines, and tree trimming). At the charge conference, the plaintiff requested an instruction that any violation by the NESC by FPL would constitute negligence per se. The trial judge declined to give the instruction because she concluded that the deceased was not in the particular class of persons those provisions were meant to protect. Instead, she instructed the jury that a violation of the code provisions would be evidence of negligence.

The jury returned a verdict finding that FPL was not the cause of the man’s death.

Like the trial court, the Fourth District questioned whether NESC applied to the case at all, because there was no case law to show that hazards constituted “defects” within the meaning of the section. Even assuming it did apply, the court further found the general regulation was not intended to protect a particular class of persons from a specific type of injury. Its general provisions create a duty on FPL to keep its equipment in good repair. However, it does not create a duty to take precautions to protect a particular class of persons from a particular type of injury.

The Fourth District affirmed the defense verdict.

ONCE THE TIME PERIOD FOR FILING A WRITTEN MOTION FOR REHEARING HAS EXPIRED, THE TRIAL COURT IS WITHOUT JURISDICTION TO VACATE A FINAL JUDGMENT UNLESS IT IS DONE UNDER RULE 1.540.

Aqua Life Corp. v. Reyes, 40 Fla. Law Weekly D752 (Fla. 3rd DCA March 25, 2015).

TRIAL COURT ERRED IN FINDING THAT NOMINAL OFFERS OF SETTLEMENT MADE BY CORPORATE CO-DEFENDANTS WERE NOT MADE IN GOOD FAITH—THERE WAS AN OBJECTIVELY REASONABLE BASIS FOR THE NOMINAL OFFER.

Isaias v. The H.T. Hackney Co., 40 Fla. Law Weekly D753 (Fla. 3rd DCA March 25, 2015):

As long as defendants’ offer has a “reasonable basis” to conclude at the time of making the offer, that exposure was nominal, the court may not find that the nominal offer was made in bad faith.

TRIAL COURT ERRED IN RULING THAT PLAINTIFF WAS FIFTY-PERCENT COMPARATIVELY NEGLIGENT FOR WEARING HIGH-HEEL SHOES IN A SLIP AND FALL CASE.

Bongiorno v. Americorp., Inc., 40 Fla. Law Weekly D760 (Fla. 5th DCA March 27, 2015):

Plaintiff sued when she slipped on an unusually slippery floor in the bathroom of the office building where she worked. The matter proceeded to a bench trial. The judge found both parties were 50% negligent for the plaintiff’s injuries.

Plaintiff appealed. She argued that the trial court reversibly erred in finding her comparatively negligent, when there were no facts in the record to even support that she was wearing high-heels to work. The only evidence in the record were statements the plaintiff made to her treating physician that she fell while wearing high-heels, as well as evidence that a co-worker was able to avoid falling on the slippery bathroom floor because she was wearing safer footwear.

To prove its affirmative defense of comparative negligence, however, the defendant had a burden of proving that the plaintiff had a duty not to wear high-heeled shoes to work. Because it failed to sustain this burden–that the plaintiff created a foreseeable zone of risk by wearing high-heeled shoes to work–the trial court erred in finding her comparatively negligent for her injuries.