FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 14

CASES FROM THE WEEK OF APRIL 7, 2017

ERROR FOR TRIAL COURT TO WEIGH EXPERT’S CREDIBILITY AND RELIABILITY BEFORE GRANTING SUMMARY JUDGMENT IN A SLIP AND FALL CASE.

McNabb v. Bay Village Club Condominium Assoc., 42 Fla. L. Weekly D719 (Fla. 2nd DCA March 29, 2017):

The trial court granted summary judgment in favor of a condominium association in this slip and fall case, determining that as a matter of law, the association did not have notice of an oil leak that allegedly caused the accident.

Plaintiff asserted that there was hydraulic oil in a hallway outside the elevator on the ground floor of the building and that he did not see it, or know how long it had been on the floor. After falling, he noticed that oil was seeping from under the door in the machine room next to the elevator and made a puddle that was 4-5 feet wide).

There were two witnesses who testified they saw oil in the hallway when they returned home a short while after the accident, and one had actually reported it to the maintenance person for Bay Village. Another witness had called the elevator corporation a few hours later and testified there was oil about a quarter of an inch deep in the machine room, and that some had leaked.

However, none of the people saw any footprints or marks in the oil indicating that it had been walked through, and none of the professionals could determine when the leak started or how long it would have taken for it to get from the machine room into the hallway where the plaintiff fell. Three days prior to the accident, the elevator had been inspected and there was no evidence of leaks in the machine room. The defendant argued that there was no evidence as to how long the oil had been in the hallway.

In opposition to the motion for summary judgment, plaintiff presented the affidavit of professional engineer (Dr. Benedict), who estimated the depth of the oil to be a quarter of an inch. He then concluded that the oil had been leaking for approximately 18 days, and said even if the depth had been less, it had been leaking for at least 4.5 days. At any rate, the witness believed the leak had been occurring at least 24 hours prior to the accident.

The trial court discounted the expert’s affidavit, finding it both lacked credibility and left open other possibilities for why it occurred.

In ruling to grant this motion for summary judgment, the trial judge discounted the expert’s affidavit based on lack of credibility and reliability. While the court recognized that trial judges are not required to consider affidavits that are not based upon personal knowledge, or are devoid of evidentiary support, in this case the expert’s affidavit was based on personal knowledge and gleaned from record documents in his analysis as an expert.

Because the trial judge erroneously weighed the credibility and reliability and the case, the court reversed and remanded for further consideration on the merits.

SUMMARY JUDGMENT UPHELD WHEN PLAINTIFF OBSERVED A DANGEROUS CONDITION, BUT FAILED TO STEP AROUND AN EASILY AVOIDABLE OBSTACLE AND FELL.

Brooke v. Winn-Dixie Stores, 42 Fla. L. Weekly D752 (Fla. 1st DCA April 4, 2017):

Plaintiff went to Winn-Dixie to make a purchase and get empty boxes. During his visit he made four trips in and out of the store. During that time, a shipment of beer was being delivered. The beer was being stacked approximately five feet high on a pallet between the entrance and the exit doors.

On the plaintiff’s third trip exiting the store, he saw the empty pallet, but still tripped and fell over it, suffering injuries as a result. He then sued Winn-Dixie for failing to warn of the dangerous condition and negligently failing to make the sidewalk safe to walk across.

The plaintiff also produced an affidavit from his expert, averring that defendant created an unsafe condition. The plaintiff had testified that he did not notice the empty pallet until his third trip, but claimed that he tripped over the prongs protruding from underneath the pallet, as opposed to the pallet itself.

Still, the trial court granted summary judgment for the defendant, finding that defendant owed no duty to warn the plaintiff of the pallet or the prongs, because the plaintiff was aware of the condition and it was so open, obvious and ordinary that it was inherently not dangerous as a matter of law.

The First District affirmed. It held that there was no duty to warn of an open and obvious condition because the defendant’s knowledge of the condition was not superior to the plaintiff’s.

The court also found that the defendant did not breach its duty to exercise ordinary care in maintaining the walkway in a reasonably safe condition for its intended use. A land owner has two distinct duties to business invitees: (1) the duty to warn of a latent dangerous condition and (2) the duty to maintain premises in a reasonably safe condition. Here, the court found that the pallets location was open and obvious, and not inherently dangerous, and there are times when conditions are so common or so innocuous in everyday life that they do not impose liability on the land owner.

In this case, the court said reversing the summary judgment would end up making the business owner a universal insurer. Business owners receive shipments of products everyday which have to be stored somewhere before final placement, and when a customer sees the placement but trips and falls, the invitee has violated his own duty to exercise reasonable care for his own safety. Also, because the pallet was not a foreign transitory substance, the analysis is different.

FEDERAL LAW DOES NOT IMPLICITLY PREEMPT STATE LAW TORT CLAIMS OF STRICT LIABILITY AND NEGLIGENCE BY ENGLE TOBACCO PROGENY PLAINTIFFS--INDIVIDUAL MEMBERS OF THE ENGLE CLASS ARE NOT PRECLUDED FROM SEEKING PUNITIVE DAMAGES.

R.J. Reynolds v. Marotta, 42 Fla. L. Weekly S410 (Fla. April 6, 2017):

The certified question in the case asked whether federal law implicitly preempted a plaintiff’s strict liability and negligence claims based on the sale of cigarettes. The tobacco company contended that Congress, through decades of legislation, had established an intention to regulate cigarettes while foreclosing their removal from the market, and that any state law that conflicts with that objective is implicitly preempted. The defendant argued that imposing tort liability to the sale of ordinary cigarettes amounted to a ban, and therefore the claims were preempted.

The tobacco defendant also insisted that liability imposed in Engle progeny cases, was based on the inherent characteristics of cigarettes (namely the presence of nicotine which causes addiction and disease) which then holds cigarette manufacturers liable for selling products that are sanctioned and protected by Congress.

Federal preemption arises under three circumstances: (1) where Congress has expressly preempted state law; (2) where state law attempts to regulate a field that Congress intended the federal government to occupy exclusively; or (3) where state law actually conflicts with federal law, either because it would be impossible to comply with both federal and state regulations, or because the state regulation stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The court reminded us that there is a “strong presumption against preemption and a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal act.” In any event, congressional purpose is the ultimate touchstone in every preemption case.

The court found that while Congress sought to create a balanced regulatory scheme with respect to federal tobacco legislation, there was no indication that Congress had a clear and manifest purpose to insulate the tobacco industry from state tort liability. Also, strict liability and negligence claims do not interfere with the regulation of advertising and promotion of cigarettes, and therefore do not conflict with congressional objectives.

The court also made clear that individual members of the Engle class are not prevented from seeking punitive damages.

NEED A REASONABLE EVIDENTIARY BASIS TO STATE A CLAIM FOR PUNITIVE DAMAGES, EVEN WHEN CASE INVOLVES INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

Bistline v. Rogers, 42 Fla. L. Weekly D706 (Fla. 4th DCA March 29, 2017):

To merit punitive damages, the conduct in an intentional interference with a business relationship case must be egregious and sufficiently reprehensible to rise to the level of truly culpable behavior deserving punishment.

Section 768.72(1) creates a substantive legal right not to be subject to punitive damages and financial worth discovery, until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. This is the case even when a claim is based on intentional misconduct. Merely pleading a facially sufficient claim for intentional business tort is not sufficient to claimed punitive damages because those damages are reserved for particular types of behavior which go beyond mere intentional acts.

Because the trial court here used an inadequate standard and failed to comply with the procedural requirements of section 768.72, and because the harm of being subjected to an impermissible punitive damage claim cannot be remedied on appeal, the court granted the petition for writ of certiorari.

JUDGE WRITES INTERESTING DISSENT ON A PCA ORDERING A NEW TRIAL AFTER A REMITTITUR OF FUTURE PAIN AND SUFFERING.

Thompson v. Avila, 42 Fla. L. Weekly D749 (Fla. 5th DCA March 31, 2017):

While the majority affirmed this decision to grant a new trial without an opinion, a dissenting judge objected to the new trial, reminding us how juries decide damages. The judge wrote that the verdict should have been affirmed in that case where the jury awarded the plaintiff approximately $1.3 million in future pain and suffering and the trial court issued a remittitur by reducing it to $250,000 (neither party accepted the remittitur). When the parties refused the remittitur, the trial judge granted a new trial on the issue of future pain and suffering.

The dissenting judge reminded us that a jury has wide latitude on the determination of damages, and unless there is something that influences the jury outside the record, the verdict should stand. Also, the amount of damages in a civil case is well within the province of the jury and the verdict is not necessarily excessive because it is above the amount the court considered a jury should have allowed.

Because the jury heard all the testimony regarding the plaintiff and determined his damages were $1.9 million, including the amount they found for future pain and suffering, and because there is no evidence of forces outside the record, the dissenting judge stated he would reverse the order granting new trial, and remanded for reinstatement of the jury’s verdict.