FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 49

CASES FROM THE WEEK OF DECEMBER 9, 2016

THE FOURTH DISTRICT DECIDES THAT THERE IS A LIMIT ON HOW MUCH INDEPENDENT ADULT CHILDREN WITH THEIR OWN LIVES SUFFER DUE TO THE WRONGFUL DEATH OF A PARENT IN A TOBACCO CASE.

R.J. Reynolds v. Odom, 41 Fla. L. Weekly D2670 (Fla. 4th DCA November 30, 2016):

In this rather surprising result in a tobacco case, the Fourth District found that an award of $6 million in non-economic damages for the loss of an adult’s mother was excessive as a matter of law. The court wrote that:

"[n]o matter how strong the emotional bond between an adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent’s smoking-related illness and death is not entitled to a multi-million dollar compensatory damages award, even if the child was involved in the facilitation of the parent’s treatments and suffered tremendous grief over the loss of the parent."
In this case, the evidence established that the plaintiff and her mother had a very close and unique relationship. However, the plaintiff was not living with her mother, and was not financially or otherwise dependent on her. Instead, the plaintiff was married with two children of her own and her mother lived with her longtime partner.
Although the plaintiff took her mother to many of her appointments and was devastated by her decline and subsequent death, the relationship between an adult child living independent of their parent--according to the Fourth District--is simply “not the type of relationship which can justify the magnitude of the plaintiff’s compensatory damage award” (in that case).

Notwithstanding this relatively shocking decision, it seems clear from the opinion that the court was limiting its specific analysis to tobacco cases, and hopefully, will not expand this “head-scratching” decision beyond that specific factual arena.

ERROR TO FIND PLAINTIFF’S ACTIONS WITH LOST DOGS AS AN INTERVENING CAUSE AS A MATTER OF LAW--DOG OWNERS ARE STRICTLY LIABLE FOR INJURIES CAUSED BY DOG BITES UNDER THE STATUTE, AND THE OWNER’S LIABILITY IS REDUCED ONLY BY A PERCENTAGE OF THE INJURED PARTY’S COMPARATIVE NEGLIGENCE.

Arellano v. Broward K-9/Miami K-9 Services, 41 Fla. L. Weekly D2659 (Fla. 3rd DCA November 30, 2016):

Defendant K-9 supplied two guard dogs to a commercial business. One night the business was burglarized and the dogs escaped into the plaintiff’s neighborhood.

Believing the dogs belonged to one of her neighbors, the plaintiff fed and sheltered the dogs for about five days, taking steps to find their owner. She sent emails to the neighborhood watch group and contacted county animal services to inquire about reports of missing dogs.

The plaintiff had two pets of her own. When she arrived home from work, she would let her own dogs out, securing the guard dogs in her laundry room. Several days after she brought the dogs into her home, she found them missing. She let her own two dogs into the yard.

The guard dogs soon returned to the home, breaking in and attacking one of the plaintiff’s dogs. When she went to intervene, they bit and injured her.

Plaintiff sued the defendant, but the trial court entered summary judgment for the defendant stating that while the plaintiff’s actions were well intentioned, they constituted an intervening superseding proximate cause relieving the defendant from liability.

Section 767.04, the dog bite statute, states that the owner of any dog that bites any person is liable for damages, regardless of the former viciousness of the dog or the owner’s knowledge. The only time the liability of the owner is reduced is if the bitten person’s own negligence contributed to the incident.

Here, the trial court determined that the plaintiff’s actions effectively dispossessed the defendant of ownership of the dogs and broke the chain of proximate causation so as to relieve it from strict liability. However, because the jury could easily decide that the plaintiff’s actions were a proximate cause of the incident or could find to the contrary, it was an error to grant summary judgment. In this case, the undisputed facts do not “conclusively establish” that the intervening superseding event, rather than a tortfeasor’s negligence caused the plaintiff’s damages.

APPELLATE FEES AWARDED PURSUANT TO SECTION 57.105 DENIED FOR FAILURE TO COMPLY WITH RULE 9.410(b).

Jarrett eBay Investments v. Bank United, 41 Fla. L. Weekly D2661 (Fla. 3rd DCA November 30, 2016):

The trial court assessed attorneys’ fees pursuant to section 57.105 for a frivolous filing. The order was entered during the pendency of the appeal.

Also during the pendency of the appeal, the defendant (recipient of fees) filed a motion seeking appellate fees for the appeal taken from a frivolous trial court action. The fees were sought pursuant to rules 9.300 and 9.400(b), as well as sections 57.105 and 59.46.

In 2010, the supreme court amended rule 9.410 which added subsection (b) to make the rule consistent with section 57.105. Prior to the amendment, the rule provided a procedure for the appellate court to impose sanctions, but only on its own motion.

The amendment specifically implemented section 57.105’s safe harbor provision and established a detailed procedural mechanism for parties seeking to impose sanctions against opposing parties in appellate proceedings pursuant to section 57.105.

According to the plain language of rule 9.410(b), parties seeking appellate fees pursuant to section 57.105 are required to proceed pursuant to rule 9.410(b). That rule requires that before filing a motion, the appellant/movant seeking to recover fees must serve the motion on the opposing party no later than the time for serving any permitted response to the challenged paper. The opposing party then has twenty-one days to withdraw or correct the challenged paper.

In this case, the defendant did not serve its motion on plaintiffs within 30 days of the filing of the initial brief so as to give the plaintiffs an opportunity to dismiss their appeal as required by the rule. These rules must be strictly complied with. The court denied the motion for fees.

ERROR TO ENTER JUDGMENT AGAINST FACILITY FOR NEGLIGENT SUPERVISION--INSUFFICIENT EVIDENCE THAT DEFENDANT KNEW OR SHOULD HAVE KNOWN THAT THE EMPLOYEE WAS LIKELY TO COMMIT FRAUD ON THE PLAINTIFF.

ACTS Retirement-Life Communities v. Estate of Zimmer, 41 Fla. L. Weekly D2668 (Fla. 4th DCA November 30, 2016):

ACTS is a retirement facility where the decedent lived with his wife and then lived alone after his wife passed. The facility was both an independent living and continuing care facility. The residents lived in condominium-like units with their own kitchens and living areas. The facility also had a common dining area and health center.

The decedent became friends with multiple employees and gave a variety of gifts to them, including at least $30,000 in cash and a Mercedes. At trial, the question was whether these gifts were unsolicited tips or the result of exploitation and manipulation.

When the decedent’s son became concerned about these gifts, an investigation was launched by the facility and each of the employees was terminated for violating the internal policy against accepting gratuities. Even after the terminations, the decedent continued to see some of the employees. Six months after the terminations, the man died and his estate filed claims including negligent supervision against the facility.

Negligent supervision occurs during the course of employment when the employer becomes aware or should have become aware of problems with an employee that indicate the employee’s unfitness and the employer failure to take action such as investigation, discharge, or reassignment. It exists when the defendant negligently places the plaintiff under the supervision of an employee or when the defendant knew or should have known that the employee had the propensity to commit the torts committed.

Part of the cause of action is that the underlying wrong must be a tort. The questions in this appeal then were whether the facility was aware or should have been aware of a problem with the employee related to a propensity of that employee to commit a tort, whether the facility failed to take the appropriate actions, and whether the tort was in fact committed outside the scope of employment.

There were eight employees who were terminated. The estate asserted there were certain red flags for the facility to know, e.g., that the decedent would wait for one of the employees outside of her office, that he purchased a cell phone for her, that she called him her “little stalker,” that he was behaving erratically, etc. None of the instances, however, constituted a red flag according to the court, that would suggest that the employee would have a propensity to commit a tort upon the decedent.

There was also a group of employees that the plaintiff sued who were drivers, security guards, etc. The estate asserted those persons should have known more and prevented the decedent from going places. The Fourth District concluded that the estate failed to introduce evidence sufficient to support the verdict finding the facility liable for negligent supervision. There was no instance where all elements of the tort were met with regard to any specific employer group of employees. The employees who were fired, including Employee 1, Maria, had appropriate action taken against them shortly after the facility became aware of the information reasonably putting them on notice of the employee’s potential harmful propensities. Therefore, there was no negligent supervision.

The employees who were retained did not commit any torts in providing transportation for the man or barring the other former employee from socializing with him. Therefore, the trial judge should have granted a directed verdict for the defendant.

NOTE: I must admit that I am not at all clear as to what the underlying tort was to begin with, or how the decedent died.

COURT REMANDS AN AWARD OF SECTION 57.105 FEES FOR APPORTIONMENT BETWEEN THE CLIENT AND COUNSEL.

Wash v. Ferdinand, 41 Fla. L. Weekly D2692 (Fla. 5th DCA December 2, 2016):

Because section 57.105 requires an apportionment of fees between the client and counsel, a trial court must make such an apportionment in an order awarding such fees.

MERELY ATTACHING AN UNSWORN DOCUMENT TO A MOTION FOR SUMMARY JUDGMENT DOES NOT SATISFY RULE 1.510(e).

S&M Transportation v. Northland Insurance Co., 41 Fla. L. Weekly D2696 (Fla. 5th DCA December 2, 2016):

An insurance company was trying to show that the policy had been canceled prior to a truck being stolen, thus eliminating the coverage for theft.

To obtain a summary judgment, the insurer had the burden of presenting competent evidence to support the non-existence of the genuine issue of material fact, and was required by rule 1.510(c) to identify any affidavits, answers to interrogatories, admissions, depositions, or other materials “as would be admissible in evidence.” Additionally, supporting affidavits had to be made on personal knowledge, and had to set forth facts that would be admissible in evidence, showing affirmatively that the affiant was competent to testify to the matters stated therein.

Here, the insurer attached to its motion for summary judgment documents that were neither verified nor authenticated in support of its defense of the cancellation. Merely attaching an unsworn document, without more, does not satisfy the procedural strictures inherent in rule 1.510(e). Only competent evidence that would be admissible at trial may be considered in ruling on a motion for summary judgment.

The court acknowledged that the documents offered by the insurer were also attached to the timely filed sworn deposition. Although the documents were hearsay, under certain circumstances the business record exception would render them admissible.

However, the proper showing must be made and the predicate laid for the admissibility. As that was not done in this case, and thus, these unsworn documents could not provide the basis for summary judgment.

NICA DOES NOT VIOLATE FEDERAL EQUAL PROTECTION BY VIRTUE OF THE FACT THAT A SINGLE GESTATION INFANT WITH A BIRTH WEIGHT OF LESS THAN 2,500 GRAMS IS DISQUALIFIED FOR COMPENSATION UNDER THE PLAN, WHEN A MULTIPLE GESTATION INFANT WITH A BIRTH WEIGHT OF LESS THAN 2,000 GRAMS IS--THE STATUTORY WEIGHT DISTINCTION HELPS PRESERVE THE ACTUARIAL SOUNDNESS OF THE PLAN’S NO-FAULT COVERAGE.

Putnam County Medical Center v. Florida Birth-Related Neurological Injury Compensation Association, 41 Fla. L. Weekly D2702 (Fla. 1st DCA December 5, 2016):

On behalf of an infant who suffered neurological injuries during birth, was 39.5 weeks at delivery and weighed 2,440 grams, the parents filed a petition for NICA benefits. The ALJ denied the petition based on the fact that the child did not meet the statutory threshold for compensation of having been 2,500 grams at birth. As such, she did not suffer a birth-related neurological injury.

The hospital intervenor challenged this decision as well as the constitutionality of the statute (the court limited its review to a facial challenge which may be raised for the first time on appeal, but did not address the challenge as applied because that was not preserved by the hospital in the trial court).

The court concluded there was no equal protection violation because (1) the hospital failed to show that single gestations and multiple gestations involve similar situations for equal protection purposes (lower birth weight for multiple gestations makes sense since the babies are sharing the same womb and the same nutrition); and (2) even assuming equal protection applied, the statutory weight distinction is rationally related to preserving the actuarial soundness of the plan’s no-fault coverage.

In 2004, the legislature considered and rejected reducing the weight requirement of single gestation infants from 2,500 to 2,000 grams based upon costs. Doing so furthered the legitimate governmental interest of preserving the availability of exclusive benefits on a no-fault basis for a limited class of catastrophic injuries.