FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 13

CASES FROM THE WEEK OF APRIL 1, 2016

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ON THE GROUND THAT DEFENDANT WAS THE PLAINTIFF’S STATUTORY EMPLOYER AND THEREFORE IMMUNE UNDER WORKERS’ COMPENSATION IMMUNITY--THE RECORD WAS DEVOID OF EVIDENCE SHOWING THAT THE DEFENDANT HAD AN EXPRESS OR IMPLIED CONTRACTUAL OBLIGATION TO THE THIRD PARTY, WHICH IT SUBLET TO PLAINTIFF’S EMPLOYER.

Mathis v. Sacred Heart Health System, 41 Fla. Law Weekly D763 (Fla. 1st DCA March 24, 2016):

The defendant was the owner of a children’s clinic that contracted with a service company to provide cleaning services. Plaintiff was an employee of the cleaning services company and fell while cleaning.

After receiving workers’ compensation benefits from her cleaning company employer, she filed a suit against the hospital alleging negligence. The trial court granted summary judgment on the ground that the hospital, as the plaintiff’s statutory employer, was immune under §440.11(1).

Under §440.10(1)(b), the hospital would have been considered a statutory employer, under the provision if it was “performing contract work for a third party,” and it “sublet a part of that contract work” to the cleaning company whose employee was injured.

The hospital argued that its patients were the third party for whom it sublet contract work to the cleaning company. It argued that the contractual obligation may be implied.

However, the appellate court reversed because it found there was no evidence to support even an implied contract. The absence of evidence regarding the existence of a contract is critical because the nature of the contract between the contractor and a third party controls the resolution of the statutory employer relationship.

Because the limited record in this case did not contain any evidence of an express or implied contract between the hospital and a third party, and because the record contained no evidence showing that the hospital owed a contractual obligation to its patients to provide cleaning services, there could not be a conclusive determination that the hospital sublet “contract work” to the cleaning company.

Because there were still genuine issues of fact regarding the applicability of workers’ compensation immunity, the court reversed the entry of summary judgment.

NEW TRIAL IN A TOBACCO CASE REQUIRED BECAUSE OF IMPROPER COMMENTS MADE DURING PLAINTIFF’S CLOSING.

R.J. Reynolds Tobacco Co. v. Gafney, 41 Fla. Law Weekly D744 (Fla. 4TH DCA March 23, 2016):

During closing argument in this tobacco wrongful death case, the plaintiff’s attorney urged the jury to make its verdict “speak loud and clear.” As part of that, the attorney gave a figure he believed was required for compensation, and then said there has been enough devaluing of the full worth of human companionship. He noted again that the verdict should “speak loud and clear.”

Later in the closing, the attorney suggested that the defendant lawyers in the cases consistently act as “co-conspirators” with the tobacco companies.

In analyzing the allegation that the plaintiff’s attorney had engaged in an improper “send a message” argument, the court explained that those arguments had been defined as those that were asking the jury to award money not based on the proof supporting the proper recoverable damages allowed in a wrongful death action, but instead to remedy wrongful intentional (as opposed to negligent) conduct, and to suggest that a significant verdict will send a message to stop such experiences from happening and make others less likely to act irresponsibly.

The court then noted that urging the jury to use its verdict to “speak loud and speak clear” via a compensatory damage award was improper (even though it would not have been improper for punitive damages). Even when a case involves both claims (as it did in this case), a plaintiff may not utilize “send a message”/“conscience of the community” arguments while discussing whether the plaintiff should be compensated due to the potential for the jury to punish through the compensatory award.

Additionally, the reference to the “defense in these cases” was clearly directed towards the defendant’s attorneys and did not involve evidence or deductions or conclusions from evidence, but rather a personal attack on the defendant’s attorneys. Whether the comments were reviewed as unsubstantiated accusations, unflattering characterizations, or as a mere inadvertent or unintended flourish, they were neither reasonable nor permissible inferences to be drawn from the evidence.

Quoting to the trial judge who noted that the comment made “jumped right out at him,” the Fourth District said it was highly probable that the comment influenced the jury as well. The court also found that there was no reasonable possibility that the errors discussed in closing were harmless, thus, requiring reversal.

SUMMARY JUDGMENT PROPERLY GRANTED IN FAVOR OF PROPERTY OWNER AND LESSEE, WHEN AN INFORMED PAINTER FELL THROUGH A SKYLIGHT ON THE ROOF OF THE SUBJECT WAREHOUSE TO HIS DEATH.

Fuentes v. Sandel, Inc., 41 Fla. Law Weekly D753 (Fla. 3rd DCA March 23, 2016):

A hurricane shutters and awnings manufacturer had leased a warehouse from the property owner defendant. The hurricane manufacturer hired another company to paint the warehouse roof. The work was subcontracted to the decedent who owned a painting company and had been in that warehouse dozens of times, knowing that the roof had skylights to let in ambient light. The decedent also had experience working on high altitude jobs.

On the day of the accident, the president of the codefendants and the owner of another party met with the decedent and his coworker for thirty minutes before the painting was to start. They specifically warned him about the danger of the skylights and the need to stay fastened to the safety rope that was installed to protect them while on the roof. They were advised not to paint the skylights or step on them, and were further warned that if they did step on the skylights they would fall through the roof.

Just before the two men concluded their work for the evening, the decedent had taken off his safety harness and had accidentally stepped on a skylight and fallen through the roof and died.

As a general rule, property owners who employ independent contractors to perform work on their property, will not be held liable for injuries sustained by the employee during the performance of that work, subject to two exceptions.

First, the property owner may be held liable for an independent contractor’s employee’s injuries if the owner actively participated in the work or exercised direct control over the work and failed to exercise that control with reasonable care.

The second exception occurs where the property owner fails to warn the contractor about concealed dangers of which the owner had actual constructive knowledge, and which were unknown to the contractor and could not have been discovered through due care.

Here, the Third District affirmed the entry of summary judgment in favor of the defendants, because the evidence did not support the level of control necessary to invoke the control exception (nor was it properly pled). The defendants also did in fact warn the decedent.

Additionally, the court held that the trial judge properly excluded the affidavit of George Zimmerman discussing the owner’s alleged liability under the South Florida Building Code, because the expert’s affidavit was permeated by improper legal conclusions (the affidavit discussed how the owner “had a duty” to do various things as an example of the legal--not factual--conclusions). Thus, the Third District upheld the entry of summary judgment.

WHERE THE CUMULATIVE EFFECT OF THE OBJECTED-TO IMPROPER STATEMENTS DURING CLOSING DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, AND THE JURY VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THERE WAS NO ABUSE OF DISCRETION IN DENYING THE DEFENDANT’S MOTION FOR NEW TRIAL.

City of Miami v. Kinser, 41 Fla. Law Weekly D755 (Fla. 3rd DCA March 23, 2016):

There was no dispute that the plaintiff injured her knee and hip when she fell through a missing section of a dock, while walking backwards and sideways pulling a boat towards the shore. The plaintiff sued the City for negligence, and the City admitted it was responsible for the maintenance of the dock. The only defense it raised was that of comparative negligence.

During closing, the City objected to several arguments made by plaintiff’s counsel, which the court divided into three categories: Improper bolstering of the witness’s credibility, improper denigration of a party’s defense, and improper appeal to the conscience of the community.

Although the court concluded that the trial judge did not abuse his discretion by determining that the improper objected-to statements were not so prejudicial as to deprive the City of a fair trial, the court cautioned that under different facts and circumstances, and had the City objected to some of the other and perhaps more egregious comments made by counsel, a new trial might have been required.

The comments involved plaintiff’s counsel comparing the jury instruction on frankness and candor to how the plaintiff “looked the jury in the eye,” and did not make anything up.

As to denigrating the defense, the plaintiff’s counsel stated it’s another thing to say “we know we created this problem but we did nothing wrong. When a bear steps in a trap and breaks its leg is it the bear’s fault?” The court said that the statement was right on the border between proper and improper.

Regarding the improper appealing to the conscience of the community, counsel said it would be great if juries could take a magic wand and after hearing the case make it go away, make it like it didn’t happen. He said that technology hasn’t been invented, that all the jury has is its pen, which is a very powerful instrument because it is the instrument to deliver justice.

The court said that nothing in that comment suggested that the plaintiff’s attorney attempted to make an “us against them” argument and did not evoke a sense of community law.

However, the court pointed to the next comment about the plaintiff having only one shot, and it is all of them who have to get it right, as an impermissible conscience of the community argument. In this close case, the Third District ruled that the comments were not enough to necessitate a new trial, and affirmed the jury’s verdict for the plaintiff.

TRIAL COURT HAS DISCRETION TO EXTEND TIME FOR SERVICE OF PROCESS EVEN WHEN STATUTE OF LIMITATIONS HAS RUN--PLAINTIFFS NO LONGER NEED TO ESTABLISH GOOD CAUSE OR EXCUSABLE NEGLECT TO AVOID DISMISSAL FOR FAILURE TO SERVE WITHIN 120 DAYS.

Mitschke-Collande v. Skipworth Properties, 41 Fla. Law Weekly D757 (Fla. 3rd DCA March 23, 2016):

Rule 1.070(j) allows trial judges to dismiss cases without prejudice, even when the plaintiff fails to serve the defendant within 120 days pursuant to the rule. Where good cause or excusable neglect for failure to make timely service has been demonstrated, a trial court must extend the time for service and has no discretion not to.

However, where no good cause or excusable neglect exists, the trial court may still exercise its discretion as to which of the three options to select (service within a specified time, dismissal of the action without prejudice, or dropping the unserved defendant as a party) except when the statute of limitations has run. When the statute has run, the discretion should normally be exercised in favor of extending the time for service of process.