FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 46

CASES FROM THE WEEK OF NOVEMBER 18, 2016

COURT UPHOLDS NEW TRIAL AS WELL AS SANCTIONS FOR ATTORNEY MISCONDUCT DURING TRIAL.

Robinson v. Ward, 41 Fla. L. Weekly D2497 (Fla. 2nd DCA November 9, 2016):

A child was injured in a car accident while riding as a passenger in a vehicle that collided with a van driven by a man working for Talbot House Ministries. The case against Talbot Ministries was voluntarily dismissed right before trial. The two attorneys who represented the driver convinced the jury not to award any future expenses for the child. The child moved for a new trial or alternatively, a mistrial and sanctions based on the alleged misconduct by the defense attorneys.

In detailing the reasons for upholding the new trial and sanctions, the court noted how defense counsel had intentionally placed an unredacted photo of the Talbot House Ministries van on the overhead projector during the defendant’s testimony (there was a motion in limine granted to that effect), and unnecessarily inserted the words “Talbot House” into his questions for the driver of the truck. Counsel also ignored a motion in limine regarding a DCF investigation and family members’ arrest records, and also displayed an excluded page from the doctor’s records on the overhead projector.

Finally, the attorney asked the child’s mother questions about her posts on Facebook made a couple of days before she testified, where she commented on being stuck at the courthouse for a week-long trial. The trial judge found the question to be improper, because there had been no related questions on direct examination, and also found it was a violation of discovery rules.

In doing a Murphy analysis because some of the acts were objected to and some were not, the trial judge concluded that the defense attorney’s conduct “so damaged the fairness of the trial that the public’s interest and our system of justice required a new trial.” Noting that the record showed that this attorney repeatedly violated the court’s directions, and exposed the jury to inadmissible evidence, and finding that the trial judge had supplied detailed oral findings at trial, it was clear that he believed that attorney Forte was acting in an effort to gain an unfair advantage and that the fairness of the trial was in fact jeopardized.

Finding the trial judge to be in the best position to assess the potential impact of the attorney’s conduct, the court said it could not say that the trial judge abused its discretion in ruling for a new trial.

Similarly, the trial judge also imposed sanctions against both attorney Forte and his associate. Based on Moakley v. Smallwood, the court observed that the supreme court has inherent authority to assess attorney’s fees made upon an express finding of bad faith conduct, along with detailed factual findings of these bad acts.

Even though the order in the case did not include the specific words “bad faith,” it did clearly state that the attorney’s actions were improper and deliberate and resulted in a miscarriage of justice. While the court did uphold the award of sanctions against the main attorney and partner in the firm, it found that the associate’s conduct did not justify such sanctions, even though she had instances of bad behavior also (but they were nothing compared to the partner’s).

INJURED MAN WHO WAS OUTSIDE OF HIS TRUCK WHEN HIT BY AN UNINSURED MOTORIST--ALBEIT DURING THE COURSE AND SCOPE OF HIS EMPLOYMENT--WAS NOT ENTITLED TO UM UNDER THE BUSINESS NAMED INSURED EDORSEMENT BECAUSE HE WAS NOT OCCUPYING THE INSURED VEHICLE.

State Farm v. Bailey, 41 Fla. L. Weekly D2493 (Fla. 2nd DCA November 9, 2016):

A man had been driving a crane truck - a flatbed vehicle with a crane attached to lift heavy items. At the time of the accident, however, he was standing between 10 and 20 feet away from the truck, observing the operation of the crane by a coworker. After standing there for approximately 30 minutes, the plaintiff was struck by an uninsured motorist who lost control of his vehicle.

The plaintiff sued State Farm, arguing that pursuant to the business named insured endorsement of the policy, he was an insured, or alternatively, that he was occupying the insured vehicle for purposes of the UM section.

State Farm asserted the plaintiff was neither a named insured nor otherwise covered because he was not occupying the vehicle as that term was defined in the policy at the time of the accident.

The court looked at the unambiguous language of the policy. The policy repeatedly stated that the insured had to be occupying the vehicle. In this case, the undisputed facts established that the plaintiff was not in, on, exiting or alighting from the insured truck when he was struck, had exited the truck some 30 minutes prior and was standing at least 10 feet away from the vehicle when he was hit.

This separation between the plaintiff and the truck and both time and distance precluded a finding that the plaintiff was occupying the vehicle at the time he was struck as a matter of law.

INDIVIDUAL LIABILITY IN A SOVEREIGN IMMUNITY CASE ESTABLISHED IF DEFENDANT’S ACTIONS WERE OUTSIDE COURSE AND SCOPE OF THE EMPLOYMENT, COMMITTED IN BAD FAITH, OR WITH MALICIOUS PURPOSE IN A MANNER EXHIBITING WILLFUL AND WANTON DISREGARD OF HUMAN RIGHTS, SAFETY OR PROPERTY.

Davis v. Baez, 41 Fla. L. Weekly D2510 (Fla. 3rd DCA November 9, 2016):

An 18-year old student was struck by a car while crossing from the west side of the street to reach the school bus stop on the east side. It was 5:50 a.m. and dark outside, and the bus had not yet arrived at the stop. The girl suffered serious injuries and sued Miami-Dade County School Board as well as the bus driver.

Plaintiff alleged that the driver and the School Board were negligent for failing to instruct the girl and her brother to wait on the west side of the street until the bus arrived at the designated stop, halted traffic, activated its lights, and allowed them to cross safely.

The plaintiffs alleged that the school bus driver on his own initiative advised the children that he was going to be picking them up on the east side, and that he failed to instruct the plaintiff and her brother to wait on the west side until he came. They also alleged that the driver required the students to cross the street before the bus arrived even though he knew that it would be dangerous for them to do so. They alleged that the driver advised that if they were not already waiting for him, he would not wait for them to cross the street to pick them up.

The School Board moved to dismiss the counts against it based on sovereign immunity, and the fact that it did not owe a duty of care. The Third District had previously PCA’d the trial court’s dismissal of the complaint on that basis.

However, the individual claim against the driver was not barred by the law of the case. An individual employee working for a sovereign has immunity, as long as he/she has acted in the scope of employment without bad faith, malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property. In this case, there was evidence that the driver acted in such a manner and thus, there were issues that precluded summary judgment in his favor on the individual liability claim.

Additionally, the court found that pursuant to the undertaker doctrine, because the driver told the plaintiff that she could not wait on the west side of the street and told her to cross to the east side before the bus arrived, the allegations and evidence supported that he voluntarily undertook to act. The driver affirmatively told the student she was required to cross the street at the bus stop. By doing so, the driver created a foreseeable zone of risk and was under a duty to act with reasonable care under those circumstances.

Still, even if there is liability against the driver pursuant to the undertaker’s doctrine, the plaintiff still has to prove that the actions of the driver were outside the course and scope of his employment, or committed in bad faith or with malicious purpose.

AN EMPLOYER IS NOT VICARIOUSLY LIABLE FOR THE INTENTIONAL TORT OF ITS EMPLOYEE, AND THE IMPACT RULE CONTINUES TO BAR NON-ECONOMIC DAMAGES FOR EMOTIONAL DISTRESS.

G4S Secure Solutions v. Golzar, 41 Fla. L. Weekly D2514 (Fla. 3rd DCA November 9, 2016):

A Wackenhut security officer who had passed its training program, drug screening and medical examination received a security guard license. The guard had marked “no” in response to a question asking whether he had any criminal convictions. While Wackenhut picked up on the charge, it was for misdemeanor disorderly conduct four years earlier in California. The defendant did not investigate the conviction.

While on patrol in a residential community, the officer was taking a video on his cell phone through the bedroom window of a young woman about to enter her senior year in high school, who was not fully dressed. She saw the camera and banged on the window to alert others in her house of the incident. The police were called and the officer was fired.

The plaintiff sued Wackenhut, alleging that it should have known the officer had been convicted of peeking and prowling in California in 2004 and was negligent in allowing him to work as a security guard. She sought damages but did not allege she had suffered any type of physical injury or that she was touched. She claimed physical problems including weight gain, nightmares and feelings of anxiety after the incident.

After the incident, plaintiff played sports, excelled academically, was accepted at Duke and awarded a full scholarship. She was involved in a number of extracurricular activities and excelled academically in college also.

The jury found for the plaintiff and awarded her over $1.3 million in damages.

The court reversed. Citing to Florida’s impact rule, it wrote that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff suffered in an impact. The rule requires some impact on the plaintiff, or in certain situations, the manifestation of severe emotional distress such as physical injuries or illness.

As a matter of first impression, the court had to decide whether torts of negligent hiring, retention and supervision exist outside of the impact rule.

The court declined to merge the guard’s intentional conduct with Wackenhut’s negligent conduct. The court observed that the torts of negligent hiring, retention and supervision are fundamentally distinct from the employee’s underlying intentional wrong, and that the impact rule does apply to those torts. Otherwise, to blur the distinction would be the functional equivalent of imposing vicarious liability on an employer for the intentional tortious conduct of its employee. This is a notion which Florida courts have consistently rejected, and this court followed suit on that.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT PARENTS ON NEGLIGENT SUPERVISION CLAIM WHEN VISITING MINOR FELL OFF AN ATV AND WAS KILLED.

Perez v. Rodriguez, 41 Fla. L. Weekly D2540 (Fla. 4th DCA November 9, 2016):

The plaintiffs brought a wrongful death case after their son fell off an ATV driven by another 16-year old boy. Neither was wearing a helmet.

The ATV was owned by defendant Mr. Rodriguez. It was surprise gift for his 16-year old son.

The decedent was over at the defendant’s home, and the defendant’s mother who never left her son home alone with a friend, told the other boy to call his parents, which he did. However, at the time she left, the decedent had convinced the defendant’s son that they could ride on the ATV. No one knew why the boy fell off the ATV (it was not driver error), but he did and the blunt force killed him.

His parents sued Mrs. Rodriguez for negligent supervision. The mother asserted she had no duty to supervise 16-year olds.

It is basic and established law that a parent is not liable for the tort of a minor child simply because of paternity. But there are four broadly defined exceptions where a parent may incur liability: 1) where the parent entrusts the child with an instrumentality because of the child’s age, judgment or experience might become a source of danger to others; 2) where the child committing the tort is acting as the servant or agent of his parents; 3) where the parent consents, directs or sanctions the wrongdoing; and 4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know injury is possible.

The court found no evidence of the first three exceptions. As to the fourth, it noted that the child must be in the habit of doing a particular type of wrongful conduct that resulted in the injury to meet it.

Here, that was not the case. The parent defendants were not aware of the specific behavior resulting in injury, and were not aware of the necessity to control their son’s behavior to that extent. Further, the boy had never taken a friend on the ATV nor did he ever ride it while his parents were not home or without their permission.

The Fourth District affirmed the summary judgment for the parents.

PARENTS OF A CHILD BORN WITH A BIRTH-RELATED NEUROLOGICAL INJURY WHO FILED A PETITION TO RESOLVE A DISPUTE WITH NICA REGARDING CUSTODIAL BENEFITS AND RECEIVED AN AWARD, WERE ENTITLED TO ATTORNEY’S FEES EVEN THOUGH THEY WERE NOT A PREVAILING PARTY.

Lampert v. Florida Birth-Related Neurological Compensation, 41 Fla. L. Weekly D2549 (Fla. 1st DCA November 14, 2016):

Under the statute, fees “incurred in connection” with a claim may be compensated. The standard is not “prevailing party” under section 766.31, and so even though the parents lost many of the issues, they were entitled to fees on the issue they did prevail upon.