FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 18

“Juror Should Not Sit.”

CASES FROM THE WEEK OF MAY 1, 2015

NEW TRIAL BECAUSE COURT FAILED TO EXCLUDE JUROR FOR CAUSE–DOCTOR COULD GIVE MEDICAL TESTIMONY EVEN THOUGH IT SEEMED “BIOMECHANICAL,” INJECTION OF INSURANCE ISSUES NOT PERMISSIBLE.

Kochalka v. Bourgeois, 40 Fla. Law Weekly D943 (Fla. 2nd DCA April 22, 2015):

The plaintiff successfully convinced the jury to award her damages for injuries suffered in a rear-end collision. However, during voir dire, one juror explained it would be hard to put aside the fact that her mother was injured in an accident and never got full justice, and another juror explained that she did not believe in the jury system after her brother was (as she believed) wrongly convicted of a crime and sent to prison for 25 years. While the trial judge did excuse the first juror for cause, he refused to do so with the second juror.

The test for juror competency includes not only the question of whether the juror can lay aside any bias or prejudice toward the parties, but also whether the juror can render a verdict based solely on the evidence presented, and the instructions on the law given by the court.

The Second District found that the juror with the convicted brother failed both tests (she had raised her hand to a question about telling the gathering things that might have one side starting out ahead of the other). Also, remarks about having no faith in the jury system should require disqualification. The court reversed the judgment on that basis.

For the purposes of retrial, the court cautioned that it was error to exclude a portion of the defendant orthopedic surgeon’s testimony for being an impermissible “biomechanical” opinion. The witness testified regarding the knee-cap injury after the plaintiff hit her dashboard, explaining how the forces and the pivot can cause injury. The Second District said this was simply a differential diagnosis analysis that shed light on a potential cause of the injury, and not an impermissible biomechanical opinion.

Finally, during voir dire, plaintiff’s counsel asked about what insurance company was involved in one of the prospective juror’s auto accidents. Defense counsel objected and moved to strike the panel. The trial court sustained the objection and instructed the attorney to stop referencing insurance (but the judge denied the motion to strike the panel).

There was then testimony admitted that the parties “exchanged insurance information” after the accident, which drew a motion for a mistrial by the defense. The Second District reminded us that the injection of any insurance issues into the case, whether deliberate or inadvertent, is improper and creates grounds for a mistrial.

NO ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON CLAIM THAT THEY BREACHED A DUTY TO WARN WHERE THE ALLEGEDLY DANGEROUS CONDITION LEADING TO THE FALL WAS OPEN AND OBVIOUS–HOWEVER COURT REVERSED SUMMARY JUDGMENT ON DUTY TO MAINTAIN.

Denson v. SM-Planters Walk Apartments, 40 Fla. Law Weekly D951 (Fla. 1st DCA April 22, 2015):

Plaintiff sued the owner of an apartment complex where she stepped on a slick and glossy stair on the top of a stairway and fell down. She alleged that the complex owed her a duty to warn of concealed perils (she was visiting someone) and that the defendant breached that duty and the duty to maintain.

The evidence was that the stairs had been painted at the end of 2009 or 2010 (this accident happened in June of 2012). The receipt for the paint showed it had an anti-skid additive. The label on the paint said that the product, if used according to label directions, helps prevent slipping and provided a slip-resistant coating.

In opposing the motion for summary judgment, the plaintiff argued that the defendant had misused the product on the stairs given that non-skid additive label stated that one unit of additive was needed for one gallon of product, the receipts showed that ten gallons of product were purchased but only four units of additive. The judge concluded that the disputed issues of fact were not material.

While the fact that a danger is obvious discharges a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain the premises. A business owner owes two duties to a business invitee: (1) a duty to warn of perils that were known or should have been known to the owner and which the invitee could not discovery; and (2) a duty to take ordinary care to keep its premises reasonably safe.

In this case, the court found there was a factual dispute created as to whether the defendant maintained its premises in a reasonably safe condition. Thus, while the court affirmed the trial judge’s order granting summary judgment in the defendant’s favor with regard to the duty to warn of a concealed danger, it reversed the order as to the duty to maintain the premises in a reasonably safe condition.

TRIAL COURT ERRED IN DENYING DEFENDANT NURSING HOME’S MOTION TO COMPEL ARBITRATION ON THE BASIS THAT THE SECOND READMISSION AGREEMENT WAS INVALID BECAUSE IT WAS EXECUTED BY THE RESIDENT’S SON WHO DID NOT HAVE POWER OF ATTORNEY OR LEGAL AUTHORITY TO ACT ON BEHALF OF THE RESIDENT–BECAUSE THE INITIAL ARBITRATION AGREEMENT SIGNED DID BIND THE RESIDENT, THE TRIAL COURT SHOULD HAVE DETERMINED WHETHER THAT ARBITRATION AGREEMENT WAS VALID ON ITS FACE.

4927 Voorhees Road v. Mallard, 40 Fla. Law Weekly D977 (Fla. 2nd DCA April 24, 2015):

A woman entered a nursing home in April of 2009. She signed the original Admission Agreement which included an agreement to arbitrate. It stated that if not cancelled, the agreement would be binding on the resident for this and all other admissions without need for further renewal.

Subsequent to the woman’s initial admission, she was hospitalized and returned to the nursing home several weeks later. She executed a “Readmission” agreement, providing that she would abide by all the terms and conditions of the initial Admission Agreement.

Following a second hospitalization, she again returned and signed another “Readmission” agreement with identical language to the first. This one was executed by her son who did not have a power of attorney or other legal authority to act on her behalf.

While the parties did not present evidence regarding their respective performances during the second Readmission to the nursing home, such evidence was unnecessary to determine whether the arbitration agreement signed by the decedent in her first admission would extend to her readmissions. The terms of the Admission Agreement expressly bound the resident from the time of her first admission, including all of her other admissions.

Arbitration provisions are contractual in nature, and construction of such provisions and the contracts in which they appear remain a matter of contract interpretation. All provisions of the arbitration agreement must be interpreted in such a way so as to prevent rendering them meaningless.

In this case, the only way to give meaning to the provision in the arbitration agreement contemplating readmissions, was to determine that the original execution of a readmission agreement was unnecessary, based upon what was stated in the first Admission Agreement. The court found the arbitration agreement executed by the decedent and included in the original Admission Agreement remained in effect at all times. However, the court did not consider whether the arbitration agreement was valid on its face, nor did the Estate concede its validity. That would be the only issue remaining–if an issue at all–on remand.