The Week in Torts – Cases from the Week of May 13, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 19

CASES FROM THE WEEK OF MAY 13, 2016

PUNITIVE DAMAGES IN AMOUNT WHICH IS EQUAL TO 100% OF THE DEFENDANT’S NET WORTH WAS SO EXCESSIVE AS TO BE UNCONSTITUTIONAL–ON REMAND TRIAL COURT MUST REMIT FOR AN AWARD OF A REASONABLE PROPORTION OF DEFENDANT’S NET WORTH OR ORDER A NEW TRIAL IF PLAINTIFFS DO NOT ACCEPT.

State Farm v. Goellner, 41 Fla. Law Weekly D1070 (Fla. 2^nd DCA May 4, 2016):

The defendant physician fell asleep at the wheel causing an accident in the early hours of the morning. There was evidence that defendant had taken prescription sleeping medication before setting out on a three-hour drive from The Villages to Sebring, which provided the basis for punitive damages.

After the jury awarded compensatory damages (which the appellate court affirmed), the doctor testified he had a net worth of approximately $284,000. The jury returned an award of punitive damages in that exact amount.

Because this award was grossly excessive, for constitutional purposes (out of proportion to the defendant’s net worth), the court had to reverse and remand. The award would have resulted in financial devastation and was unconstitutionally excessive.

Therefore, on remand the trial court could remit the punitive damages according to the court’s decision to award a reasonable portion of the defendant’s net worth, and if the plaintiffs did not wish to accept it, they could have a new trial on that issue.

ERROR TO DISMISS CASE FOR LACK OF PROSECUTION, WHERE PLAINTIFF ESTABLISHED RECORD ACTIVITY WITHIN 60-DAY GRACE PERIOD AND ALSO SHOWED GOOD CAUSE WHY THE MATTER SHOULD NOT BE DISMISSED.

Woods v. Lloyds Asset Management, 41 Fla. Law Weekly D1071 (Fla. 4^th DCA May 4, 2016):

With the defendants in bankruptcy, and a motion for clerk’s default filed against one of the defendants during the 60-day grace period there was record activity and good cause, and the trial court erred in dismissing the case for lack of prosecution.

FACTUAL ISSUES PROHIBITED SUMMARY JUDGMENT AGAINST THE CITY, THE MAINTENANCE COMPANY AND THE ADJACENT PROPERTY OWNER, WHEN THE DEFENDANT DRIVER ASSERTED THAT THE FOLIAGE AT THE INTERSECTION PRECLUDED HIM FROM SEEING THE MINOR PLAINTIFF SKATEBOARDER.

Piedra v. City of North Bay Village, 41 Fla. Law Weekly D1087 (Fla. 3^rd DCA May 4, 2016):

The appellant’s 12-year old son and his friend were riding a motorized skateboard on the streets in a sitting or crouched position as they approached the subject intersection, controlled by stop signs. The defendant driver testified he stopped before entering the intersection, but between the two streets were the City’s foliage-planted intersection bulb-outs and the property owner’s hedges. The boys testified that they could see the defendant driver, but the defendant driver testified he could not see the boys. The driver hit the boys and the plaintiff’s son suffered a broken leg.

The City asserted that the decision to plant the bulb-outs was a planning rather than operational decision which precluded liability. The court found that while the actions in designing and planting the bulb-out areas were planning level, the maintenance of the area was operational. There were questions of fact as to whether the City negligently maintained the vegetation planted in the bulb-outs, which obstructed the vision.

The groundskeeper’s company also had a contract with the City to maintain public rights of way. The record supported that that could have included the bulb-outs, also precluding summary judgment.

Finally, there were questions of fact as to whether the property owner’s hedges were within or outside the property boundaries, and whether the hedges obstructed the vision of the intersection.

Because the record had issues of fact regarding (1) whether the foliage growing in the bulb-outs was negligently maintained by the City such that at the time of the accident the vegetation was so high or overgrown as to obscure visual observation of traffic; (2) whether the vegetation in the bulb-outs at the time of the accident presented a hidden danger to the motorists, which the City knew or should have known about; (3) whether the intersections condition at the time of the accident was a cause of it; and (4) whether the property owner’s hedges at the time of the accident were subject to and violated the City ordinance regarding vegetation heights, it was error for the trial court to grant summary judgment.

QUESTION OF FACT REGARDING WHETHER THE RE-BAR PROTRUDING FROM THE GROUND IN THE LANDSCAPED AREA OF SHOPPING MALL PARKING LOT WAS OPEN AND OBVIOUS AND/OR A DANGEROUS CONDITION.

Grimes v. Family Dollar Stores, 41 Fla. Law Weekly D1089 (Fla. 3^rd DCA May 4, 2016):

Family Dollar Store was renting space in a shopping mall. The parking lot of the mall is divided into rows separated by curbed landscaped areas, and there are paved pedestrian walkways within the parking areas. The owners hired a company to maintain the landscaped areas.

The plaintiff, intending to shop at Family Dollar, walked through the parking lot and across one of the landscaped areas. While crossing, she tripped over a short steel re-bar which was protruding out of the ground, and was not tied or supported to any trees or shrubs. She alleged that the negligent failure to maintain the premises in a reasonably safe condition, negligent failure to correct a dangerous condition and a negligent failure to warn business invitees of a dangerous condition caused her fall. She also alleged that the defendants breached their duty by allowing the re-bar to protrude from the ground in a concealed dangerous condition on a well-worn path through the landscaped area used by business invitees as a short cut to Family Dollar Store.

The court, relying on the decision in Wolf v. Sam’s East, concluded that the condition was so obvious and not inherently dangerous to constitute a “non-dangerous” condition as a matter of law.

Because there was evidence in the record to suggest that the landscaped area in front of Family Dollar had become a well-trampled dirt footpath used by business invitees, the question was whether the defendant allowed the condition to exist long enough to place them on constructive notice. Therefore, there were triable issues as to whether the dangerous condition existed, whether it was open and obvious, and whether constructive knowledge could be inferred that the dangerous condition existed for a length of time, and that the exercise of reasonable care should have been known to the defendants.

Additionally, if the parties responsible for maintaining the parking lot landscape features allow the particular landscaped area to become a regularly used path into the parking lot they controlled, they may have had a duty to anticipate the harm.

The court reminded us that courts must be particularly restrained in granting summary judgments in negligence cases, and summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. If the evidence raises any material fact is conflicting or will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. This was one of those cases.

ERROR TO DISMISS ACTION AGAINST CITY WITH PREJUDICE BASED ON PLAINTIFF’S FAILURE TO GIVE TIMELY NOTICE OF THE CLAIM–AFFIRMATIVE DEFENSE OF EXPIRATION OF STATUTE OF LIMITATIONS CANNOT BE RAISED IN A MOTION TO DISMISS UNLESS THE FACE OF THE COMPLAINT INDICATES AN EXPIRATION.

Williams v. City of Jacksonville, 41 Fla. Law Weekly D1111 (Fla. 1^st DCA May 6, 2016):

Plaintiff filed her complaint four years after being struck by a City of Jacksonville police vehicle as she crossed in an intersection. She alleged that the action was timely filed, and that she complied with section 768.28(6)(a).

The City did not answer the complaint, instead filing a motion to dismiss with prejudice. Not only did it assert plaintiff failed to comply with section 768.28(6), it also asserted she failed to comply with the more specific requirement in the City’s local ordinance, that notice be served on the general counsel.

The plaintiff responded by submitting exhibits to support her factual assertions that she had complied.

When the complaint alleges compliance with conditions precedent to the suit, the burden shifts to the City to deny with specificity and particularity that the required notices were given and to properly present the issue in the context of a summary judgment motion. A bar based on accrual and alleged untimeliness whether under section 768.28 or the applicable statute of limitations, should be pled as an affirmative defense and is not appropriate for disposition on the face of the complaint.

Motions to dismiss complaints prior to a responsive pleading are allowed, but only when based on one of the grounds enumerated in rule 1.140(b) or based on an affirmative defense, that appears on the face of a prior pleading (like the statute of limitations).

Because the facts alleged on the face of the complaint do not conclusively establish that the statute for presuit notice barred the plaintiff’s complaint, the court reversed.

TRIAL COURT PROPERLY AWARDED FEES AND COSTS AGAINST INSURER JOINTLY AND SEVERALLY WITH INSURED PURSUANT TO PLAINTIFF’S PROPOSAL FOR SETTLEMENT–POLICY PROVISION STATING THAT “INSURER WOULD COVER OTHER EXPENSES INCURRED AT OUR REQUEST” INCLUDED COSTS ASSOCIATED WITH CHOOSING TO LITIGATE INSTEAD OF SETTLING.

Government Employees Insurance Co. v. Macedo, 41 Fla. Law Weekly D1114 (Fla. 1^st DCA May 6, 2016):

Geico challenged the final judgment in an auto case holding it responsible to pay the injured plaintiff’s fees and costs after rejecting plaintiff’s proposal. The jury returned a verdict four times more than the amount of the proposal.

The court affirmed based on its decision in New Hampshire Indemnity Co. v. Gray, 177 So. 3d 56 (Fla. 1^st DCA 2015). There, the court found that the insurer’s policy provision stating that it would cover “other reasonable expenses incurred or requests” including costs associated with choosing to litigate a case instead of settling it.

As in Gray, Geico’s policy in this case gave it the sole right to litigate and settle claims, and contractually obligated it to pay for all investigative and legal costs incurred as well as other reasonable costs incurred by the insured at Geico’s request. The policy did not provide a definition of “legal” or “other costs,” nor did it exclude the costs and fees awarded to a plaintiff driver pursuant to an offer of judgment.

Under these kinds of insurance policies, the insurers enjoy the sole right to settle or litigate claims against the insureds, but when its decision results in costs being incurred by the insured, those expenses are incurred at the insurer’s request.

Thus, the court affirmed the trial judge’s final judgment adjudicating Geico jointly and severally liable with its insured for the plaintiff’s taxable fees and costs. The court also certified conflict with the Second District at the same time.