FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 11

CASES FROM THE WEEK OF MARCH 18, 2016

“UNDERTAKER’S DOCTRINE” DID NOT CREATE A CAUSE OF ACTION AGAINST A BAR OWNER, IN THIS INSTANCE WHERE THE STATUTE SQUARELY PROHIBITS IT, AND THESE FACTS DID NOT CHANGE THAT.

De La Torre v. Flanigan’s, 41 Fla. Law Weekly D603 (Fla. 4th DCA March 9, 2016):

A woman became intoxicated at Flanigan’s. Flanigan’s stopped serving alcohol to her at some point, and then was giving her water in an effort to sober her up. Flanigan’s had an internal policy designed to prevent drunken patrons from driving away from the premises (either by taking their car keys or by ensuring that they left in a taxi or with a sober driver).

On the night of this accident, despite attempts at sobering her up, the driver crossed the center line on her way home, colliding with three innocent victims and causing significant harm to them.

In the action against Flanigan’s, the plaintiffs alleged that §768.125, which absolves sellers of alcoholic beverages from liability (except under limited circumstances), did not apply. Instead, plaintiffs asserted that their cause of action arose from the “undertaker’s doctrine,” based on the Flanigan’s policy about handling intoxicated patrons.

That doctrine does impose liability when one undertakes gratuitously to render services necessary for the protection of a third person or his or her things, if (a) doing so with the failure to exercise reasonable care increases the risk of such harm, or (b) if the person has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The court held that the defendant’s actions in this case were insufficient for the doctrine to apply. The actions in cutting off the driver and giving her water, did not increase the risk of harm stemming from the driver’s intoxication, nor did the defendant undertake to perform a duty owed by the driver to the third parties. Further, the court said it was unreasonable to assume--as plaintiffs did--that the driver would not have driven but for the defendant’s actions.

The plaintiffs relied heavily upon the defendant’s internal policies regarding drunken patrons and their leaving, but the court pointed out that there is ample case law stating that internal policies do not create a duty to third parties.

The court also observed that to accept the plaintiffs’ argument would encourage restaurants and bars to avoid liability by intentionally not having a policy or practice to deter drunk driving, and the “no good deed goes unpunished” theory would also extend to other parties like friends or family members who may voluntarily encourage intoxicated individuals to stop drinking or to try to sober them up.

Because the defendant’s actions did not increase the risk to the public, assume a duty owed to a third party, or create justifiable reliance by the driver, the undertaker’s doctrine did not apply.

COURT’S EVALUATION OF THE SUFFICIENCY OF A COMPLAINT AND WHETHER IT STATES A CAUSE OF ACTION LIMITED TO AN EXAMININATION OF THE COMPLAINT AND ITS RELATED ATTACHMENTS.

Santiago v. Mauna Loa Investments, 41 Fla. Law Weekly S91 (Fla. March 17, 2016):

After entry of a default by the trial court below, the Third District reversed the trial court’s refusal to vacate the default, ruling that the complaint in another action demonstrated that the main complaint did not state a cause of action.

Reaffirming its longstanding rule that the sufficiency of a complaint to state a cause of action must be determined solely by examination of the complaint and its related attachments, the Florida Supreme Court reversed the Third District, which reinstated the default.

THE FLORIDA SUPREME COURT RULES THAT INDIVIDUAL MEMBERS OF THE ENGLE CLASS ACTION MAY PROPERLY SEEK PUNITIVE DAMAGES IN THEIR INDIVIDUAL CASES--WHERE TRIAL COURT ERRONEOUSLY STRIKES PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES BEFORE THE JURY CONSIDERS THE ISSUE, THE PROPER REMEDY IS TO REVERSE AND REMAND FOR A NEW TRIAL LIMITED SOLELY TO THE ISSUE OF PUNITIVE DAMAGES.

Soffer v. R.J. Reynolds, 41 Fla. Law Weekly S101 (Fla. March 17, 2016).

ERROR TO DISMISS ACTION FOR LACK OF PROSECTION WHERE THE NOTICE OF HEARING WAS FILED WITHIN THE 60-DAY GRACE PERIOD FOLLOWING THE TRIAL COURT’S NOTICE OF LACK OF PROSECUTION.

Butler v. Innovative Marketing, 41 Fla. Law Weekly D594 (Fla. 4th DCA March 9, 2016):

Under rule 1.420(e), there is a 60-day grace period following the trial court’s notice of a lack of prosecution. Any filing of record during that time frame is sufficient to preclude dismissal without regard to a finding that the filing was intended to affirmatively move the case forward.

WRIT OF PROHIBITION GRANTED WHEN TRIAL JUDGE MADE COMMENTS WHICH REASONABLY COULD HAVE CAUSED FEAR THAT THE PETITIONER COULD NOT GET A FAIR TRIAL.

Molina v. Perez, 41 Fla. Law Weekly D614 (Fla. 3rd DCA March 9, 2016):

In determining the legal sufficiency of a motion for disqualification, the test is whether the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial. The standard is the reasonable effect on the party seeking disqualification--not the subjective intent of the judge.

In this case, the judge’s decidedly negative commentary concerning his personal opinion of the petitioner’s behavior, when viewed in the context of the dissolution proceedings, was sufficient to create in a reasonably prudent person a well-founded fear that he would not receive a fair hearing before that judge.

TRIAL COURT ERRED IN IMPOSING FEES AND COSTS BASED ON AN ATTORNEY’S DISHONEST STATEMENTS TO THE COURT.

Tenev v. Thurston, 41 Fla. Law Weekly D634 (Fla. 2nd DCA March 9, 2016):

After an attorney gave three different answers for why she knew that one of the jurors was Facebook friends with one of the litigant’s employees, the trial court found the attorney had acted in bad faith leading up to and during the trial, and further found her conduct reflected an intentional, consistent, deliberate and contumacious disregard for the court’s authority. The judge found that these actions--which included her admitted dishonesty to the court’s direct questioning--mandated sanctioning.

Reviewing the decision for an abuse of discretion, the Second District reflected on the trial judge’s understandable frustration, but still found that none of the attorney’s actions or dishonesty directly affected the defendant’s incurrence of attorney’s fees and costs in preparing for the trial and the fees the litigant did incur was a result of its own motion.

Personally, this commentator thinks sanctions deter dishonest and contumacious conduct, and wishes this case had resolved differently.

COURT REVERSES PLAINTIFF’S MEDICAL MALPRACTICE VERDICT IN INFORMED CONSENT CASE.

Santa Lucia v. LeVine, 41 Fla. Law Weekly D636 (Fla. 2nd DCA March 9, 2016):

Under the doctrine of informed consent, a physician has an obligation to advise the patient of material risks of undergoing a medical procedure. Expert testimony is thus required in informed consent cases, to establish whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstances.

In this case involving surgery on a myotubular myopathy, the expert was unfamiliar with the condition, and thus could not provide testimony as to what an adequate and accurate disclosure would have been. Nor did the expert opine that the defendant had a duty to advise the plaintiff about risks specific to anesthesia.

There was actually no testimony as to the specific risk about which the plaintiff should have been advised. At best, one doctor testified that patients with similar disorders should be advised that they are at greater risk of pulmonary complications; still, he did not testify as to what those complications might be, or the extent of the risks.

The court found that even if all of this testimony and coupled with the defendant doctor’s testimony regarding the disclosures he made to the plaintiff were sufficient to establish a standard of care or breach thereof, the plaintiff still presented no evidence of causation.

Because there was no evidence that the defendant’s failure to advise the plaintiff that he was at greater risk of pulmonary complications affected either his consent to the surgery or the injuries suffered post-surgery, the verdict was not supported by evidence.

Because a mere possibility of causation is not enough, the trial court has a duty to direct a verdict under those circumstances.

NURSING HOME ARBITRATION AGREEMENT THAT PUT A CAP ON DAMAGES INVALIDATED THE ENTIRE AGREEMENT--QUESTION CERTIFIED.

Novosett v. Arc Villages, 41 Fla. Law Weekly D652 (Fla. 5th DCA March 11, 2016):

The arbitration clause in this nursing home contract contained a limitation of liability, purporting to place a cap on non-economic damages and preclude the availability of punitive damages. The lower court correctly held that this provision was against public policy and void. The trial court still compelled arbitration, however, because the contract contained a severability clause.

The Fifth District held that the controlling issue was not necessarily whether the existence of a severability clause in an agreement was dispositive of whether a void clause invalidates the entire contract. Rather, the issue was whether an offending clause or clauses goes to the very essence of the agreement. In this case, the court held that the limitation of liability did go to the financial heart of the agreement.

While reversing the trial court’s compelling of arbitration, the court also certified the question as one of great public importance (regarding severability clauses in these types of contracts).

ARBITRATION AGREEMENT SIGNED BY RESIDENT’S DAUGHTER AS ATTORNEY-IN-FACT WAS NEITHER PROCEDURALLY NOR SUBSTANTIVELY UNCONSCIONABLE, WHERE AGREEMENT PROVIDED ACCEPTANCE OF ARBITRATION WAS NOT A PREREQUISITE TO ADMISSION AND THE AGREEMENT COULD BE CANCELED WITHIN 30 DAYS, AND THERE WAS NO EVIDENCE THAT THE DAUGHTER WAS RUSHED TO SIGN THE AGREEMENT OR WAS LED TO BELIEVE THAT THE AGREEMENT WAS A CONDITION OF HER MOTHER’S ADMISSION.

Florida Holdings III, LLC v. Duerst, 41 Fla. Law Weekly D659 (Fla. 2nd DCA March 11, 2016):

In looking at this case for both procedural and substantive unconscionability, the court first noted that whether a party is afforded a meaningful choice with regard to arbitration is the touchstone of a procedural unconscionability inquiry. It is also determined from the totality of the circumstances.

In this case, the plaintiff had a reasonable opportunity to understand the terms of the agreement and to bargain over them. The 30 day cancellation period, and the fact that signing the agreement was not a condition to admit the patient supported that. The record demonstrated perhaps some slight degree of procedural unconscionability but very little.

There was no evidence of substantive unconscionability however. Substantive unconscionability exists where the contract terms are so outrageously unfair as to shock the judicial conscience. The plaintiff asserted that the arbitration agreement’s adoption of NAF Rule 29 restricted her ability to obtain discovery, but the court said she failed to meet her burden to show that the discovery would significantly negatively affect her ability to prove her claims.

In essence, the plaintiff’s argument on substantive unconscionability boiled down to a fight with two standard features of arbitration--the fact that it involved more limited discovery than civil litigation and the fact that it afforded more limited rights of judicial review than civil litigation. Even if there were some slight measure of procedural conscionability leading to the execution of the arbitration agreement, the plaintiff failed to demonstrate that substantive unconscionability was present in any measure.