FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 31

CASES FROM THE WEEK OF AUGUST 5, 2016

COURT AFFIRMS NEW TRIAL IN CASE WHERE PLAINTIFF DRIVER WAS NOT FOUND TO BE AT ALL AT FAULT--HOWEVER, THE NEW TRIAL LIMITED TO ISSUES OF COMPARATIVE NEGLIGENCE ONLY.

Botta v. FPL, 41 Fla. L. Weekly D1744 (Fla. 4th DCA July 27, 2016):

FPL responded to a power outage by deploying a technician to investigate.  After parking his truck on the road, the technician did not set out any reflective warning markers or other devices in the roadway behind the truck.  While the testimony was disputed regarding the warning lights, it was also disputed whether the plaintiff driver had his headlights on.  It was undisputed, though, that the man collided with the parked FPL truck (he testified he believed it was moving rather than parked), and as a result of the accident his wife lost one of her arms.

After the jury reached a verdict for the plaintiff, finding no comparative liability on the part of the driver, the trial judge granted the motion for new trial.  He found that the “no negligence on part of the plaintiff driver” was contrary to the manifest weight of the evidence.

In asking whether a reasonable person could believe that the trial judge was correct in determining that the manifest weight of the evidence supported a finding of some negligence--however small--on the part of the plaintiff, the court found that while there was conflicting evidence, it was undisputed that the driver collided with a large parked vehicle.  Because a trial judge is in a far superior position to weigh and evaluate evidence, the appellate court said it could not find that no reasonable person would have concluded as the trial court did.  Thus, the court affirmed the trial court’s order granting a new trial.

The trial court’s order did not, however, specifically state on what issues he would conduct the new trial.  The court distinguished other cases which had granted a new trial on all issues, finding they involved evidence (or the lack thereof) that could have prejudiced the jury on all aspects of the trial. 

Because in this case, the error complained of was only the manifest weight of the evidence on comparative, and there was not a problem with any particular piece of evidence, the jury may have acted contrary to the manifest weight, but only on the issue of the comparative negligence.  In fact, FPL did not even raise a manifest weight argument related to the other issues. 

Therefore, the court held that the new trial should be only on the issue found to have been erroneous, which was the finding of no negligence on the part of the plaintiff driver.

DEFENDANTS WAIVED PRESUIT NOTICE AND INVESTIGATION REQUIREMENTS AGREEING TO ARBITRATE PLAINTIFF’S MEDICAL MALPRACTICE CLAIM UNDER THE DISCRETE FACTS OF THIS CASE.

Meridian Pain & Diagnostics v. Greber, 41 Fla. L. Weekly D1720 (Fla. 3rd DCA July 27, 2016):

In this rather unique factual case, a woman had a cosmetic procedure which went awry.  Prior to having the procedure, she had executed a consent and release which provided for mediation or arbitration of her claims.

After suffering from the use of the wrong injection, the plaintiffs contacted the defendants about mediating.  The defendants agreed, and then insisted that if the mediation were unsuccessful that the parties would then arbitrate under section 766.207.  After the unsuccessful mediation and the plaintiffs’ attempt to arrange the arbitration, plaintiffs filed a formal motion to compel which the trial court granted.  The defendants asserted that there could be no arbitration because the plaintiffs failed to comply with presuit under section 766.207.

Under these discrete facts, where the defendants expressly insisted on arbitrating plaintiffs’ claim pursuant to section 766.207, once the defendants were made aware of the claims as they were, they waived presuit and had to arbitrate without engaging in it.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WHEN IT DENIED SEMINOLE TRIBE’S MOTION TO DISMISS PLAINTIFF’S ACTION AGAINST IT FOR INJURIES RESULTING FROM A SLIP AND FALL IN A RESTROOM AT A CASINO OWNED BY THE TRIBE.

Seminole Tribe of Florida v. Schinneller, 41 Fla. L. Weekly D1745 (Fla. 4th DCA July 27, 2016):

Plaintiff filed a complaint against the Seminole tribe for injuries sustained in a slip and fall in a restroom at the Seminole Hard Rock Hotel and Casino.  In the amended complaint, the plaintiff admitted the tribe was not subject to the civil jurisdiction of the state, unless its sovereign immunity had been waived, and further acknowledged that it could only be waived by a duly enacted resolution of the Tribal Council in a legal session. 

The plaintiff argued, however, that there had been such a waiver.  After a rather complicated analysis of documents and resolutions, the court concluded that the tribe established that no resolution, ordinance or compact including a waiver of immunity was enforceable at the time the plaintiff’s claim arose, and the resolution that had been passed had been declared invalid by the Florida Supreme Court.  Therefore, it was a departure from the essential requirements of law for the trial judge to deny the tribe’s motion to dismiss (and the court agreed the harm would be irreparable if the immunity was not given as intended).