The Week in Torts – Cases from the Week of August 16, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 31

CASES FROM THE WEEK OF AUGUST 4, 2017

COURT REVERSES FOR NEW TRIAL IN AN ACCIDENT CASE WHERE JUDGE ERRED IN MAKING THREE MATERIAL EVIDENTIARY RULINGS.

Stewart v. Draleaus, 42 Fla. L. Weekly D1666 (Fla. 4^th DCA July 26, 2017):

In this motorcycle accident case, there were two motorcycles, one of which had two people on it. There was wildly conflicting testimony of how the accident happened, one version being that the defendant driver challenged the motorcyclist to a race, another being that the defendant had revved its engine as a warning to the motorcyclists and then he saw one of the cyclists attempt to turn and did so directly into the other one’s path causing them to collide and hit a curb. There was also independent witness testimony that the motorcyclist and the defendant’s Camaro were traveling one hundred miles per hour, and another witness who testified that the vehicles were traveling fifty-five to sixty miles per hour and that the Camaro was nowhere near the motorcycles when one of the wheels began to wobble and crash.

There was yet another witness–a minor–who was involved in a fender bender shortly after the accident. She testified she did not see the accident because a truck was traveling in front of her, but she saw the motorcycles speeding and weaving in and out of traffic before. When the truck turned onto an intersecting street she saw three people laying on the road and on the sidewalk and had to swerve to avoid them at which point she hit a car that was pulled over to render aid to the plaintiffs.

The plaintiffs had moved in limine to keep out the minor’s prior inconsistent statement, where she told the police officer that she saw one of the motorcycles move into the other motorcyclist’s lane and make contact with it, based on the accident report privilege. The trial court ruled to exclude the testimony and evidence of the minor witness based on that privilege.

The Fourth District reminded us that the immunity in the accident report privilege statute is not extended to witnesses because they have no obligation to provide a statement to law enforcement.

The trial judge, in this case, ruled that the second accident was part and parcel of the first only and excluded the statement. The court found that conclusion erroneous, because neither the minor witness, nor the vehicle she struck had collided with the plaintiffs, their motorcycles, or any of the debris from their accident.

Additionally, the investigating officer who had obtained the minor accident witness’s statement indicated in his proffered testimony that he was investigating only the motorcycle accident, and not the minor accident witness’s fender bender, and that the fender bender was memorialized in a separate report authored by a different officer. Thus, it was error for the trial court to exclude that witness’s statements.

The trial court also excluded evidence of the plaintiffs’ pre-accident alcohol consumption. Recognizing the inflammatory effects of the evidence of a party’s alcohol use in the context of an action arising from a car accident, the trier of fact must still hear the totality of fault of each side, and the specific acts of negligence of each party (interestingly, the court said this is the case even when liability is admitted which may be useful in other cases down the line).

In this case, one plaintiff admitted he had two drinks between 7:30 and 10:30 which meant he could have been drinking up to 48 minutes before the accident which happened at 11:18. A responding officer also smelled the alcohol on one of the motorcyclists. Defendant’s expert testified that even small quantities of alcohol can impair a motorcycle operator’s perception of events.

Because the evidence conclusively established that at least some of the plaintiffs were drinking prior to the accident, the issue as to whether alcohol consumption was a contributing factor of the accident should have been admitted and made for a question of fact for the jury.

As part of that ruling, the court also stated that on remand the defendant would be permitted to pursue his defense under section 768.36, which prohibits a plaintiff from recovering damages for his or her own injuries if the plaintiff was under the influence of alcohol or drugs to the extent that normal faculties were impaired or that the blood alcohol level was .08 percent or higher, and the plaintiff was more than 50 percent responsible for his or her own harm.

Finally, the plaintiffs successfully excluded evidence that one of the plaintiffs had not taken a required examination, and therefore only possessed a temporary motorcycle license that did not allow him to carry passengers. The judge ruled the violation in this case was irrelevant because the failure to take the requisite test and obtain the permanent license did not indicate negligence in the subject accident.

The court reminded us that the vast majority of jurisdictions hold that a violation of a driver’s license law is not evidence of negligence in the absence of some causal connection between the violation and the injury. However, in some situations the violation of a restriction may be relevant to show a driver’s inexperience and incompetence.

The plaintiff admitted that carrying a passenger can change the unique dynamics of a motorcycle and thus the motorcycle license violation was relevant in the case at hand. The court reversed the jury verdict for the plaintiffs and remanded for a new trial.

COURT’S FORUM NON CONVENIENS ANALYSIS CONCLUDES THAT PLAINTIFF’S FORUM SELECTION STOPS BECOMING A FACTOR OF OVERRIDING IMPORTANCE ONCE A MOTION TO TRANSFER BASED ON INCONVENIENT FORUM IS FILED.

Botta v. Ciklin, Lubitz, 42 Fla. L. Weekly D1662 (Fla. 4^th DCA July 26, 2017):

The plaintiff law firm filed a declaratory judgment action in an estate case and did so in Broward County. However, the decedent and the overwhelming majority of witnesses and defendants resided in Seminole County, and one party resided in Broward County, and the law firm was in Palm Beach County.

The interested parties whose mother’s estate (a Seminole County estate) was at issue, moved to transfer venue for forum non conveniens.

Upon engaging in its analysis, the Fourth District agreed that the convenience of the parties favored Seminole County. The court noted that Broward County was a “proper” forum in which to file the action, but that consideration was not relevant to whether it was a convenient forum to dispose of the actions, especially because by the time the Broward County party was served, she had moved to Seminole County.

The court further noted that the law firm’s and the attorney’s location in Palm Beach County near Broward County was not persuasive because although they were parties to the case, they were also serving as their own attorneys, and “the convenience of the attorneys is usually accorded very little if any weight.”

The court then said that the convenience of the witnesses, probably the most important consideration of the three statutory factors, also favored Seminole County, as did the interests of justice. The primary dispute pertained to a woman’s capacity when she executed a power of attorney while residing in Seminole County. Her affairs were managed in Seminole County and she died there. The estate was probated in Seminole County.

Finally, the court stated that once a motion to transfer based on inconvenient forum is filed, the plaintiff’s forum selection is no longer the factor of overriding importance. In this case, the court found that the trial court’s conclusion that half the people were “here” and half the people were “up there,” making the forum inconvenient for everybody, was not supported by competent and substantial evidence.

ERROR TO DENY MOTION TO TRANSFER ACTION TO COUNTY SPECIFIED IN MANDATORY VENUE CLAUSE AND PARTIES’ AGREEMENT WHEN THERE WAS NOTHING TO SHOW THAT THE MANDATORY VENUE CLAUSE WAS UNREASONABLE OR UNJUST AND THERE WAS NO APPARENT OPPOSITION TO THE MOTION TO TRANSFER.

H. Gregory 1, Inc. v. Cook, 42 Fla. L. Weekly D1665 (Fla. 4^th DCA July 26, 2017):

The sales order agreement at issue contained a mandatory venue clause requiring the action be brought in Miami-Dade County. Still, the buyer of a used car sued the dealer for unfair and deceptive trade practices in Broward County. The sales agreement stated “Venue shall lie exclusively in Miami-Dade County.”

The court observed that the words “exclusive” and “shall” were mandatory terms, and the provision had to be honored by the trial court in the absence of a showing that the clause was unreasonable or unjust. The court further stated that mere inconvenience or additional expense to an objecting party, is not sufficient to warrant rejection of a mandatory venue clause.

Without a showing of unjustness (in this case there was not even any opposition), venue was transferred to Miami-Dade County.

ERROR TO DENY A MOTION TO DISMISS FOR LACK OF JURISDICTION–WEBSITE AND DEALINGS WITH THE EMPLOYEE IN FLORIDA NOT ENOUGH.

Aegis Defense Services v. Gilbert, 42 Fla. L. Weekly D1675 (Fla. 5^th DCA July 28, 2017):

A man sued his former employer, a Delaware limited liability company headquartered in Virginia for declaratory relief, asserting failure to pay overtime wages and unjust enrichment for work he performed in Afghanistan on behalf of the company.

In his complaint, plaintiff alleged that the company was subject to Florida’s long-arm jurisdiction because the defendant engaged in substantial and not isolated activity within the state. To support those allegations, plaintiff alleged that he submitted his resume to the defendant online from his home in Florida, was subsequently contacted by a recruiter in Florida, that he and the recruiter spoke several times and communicated by email and phone, and that he was in Florida when the contacts were made.

Also, at the defendant’s request, the plaintiff submitted to a pre-employment screening that included a medical exam, a dental exam and a stress test that were done in Florida at the offices of a medical provider selected by the defendant.

Personal jurisdiction is a two-part inquiry. The court must first determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the long-arm statute, and if so, the court must determine whether sufficient minimum contacts are demonstrated to satisfy due process.

Long-arm jurisdiction can be established by specific alleged activities and general ones where the defendant’s contacts with the forum state are so substantial that it’s unnecessary to establish a relationship. General jurisdiction must be based on substantial and not isolated activity in the state.

The court relied on a case where a university that also maintained an interactive website accessible in Florida, had employees in Florida, had five alumni associations in Florida and had two students with Florida addresses enrolled in its online classes, still found the contacts insufficient to establish continuous systematic general business contacts for general jurisdiction.

The take away is that the court observed the mere existence of a website does not show that a defendant is directing its business activities towards every forum where the website is visible.

The court said the contacts in this case were far fewer than the university case where the court rejected jurisdiction. The court also rejected any claim of specific jurisdiction because the plaintiff’s complaint did not arise from any of the activities that took place in the state (the claims arose out of activities for work he performed in Afghanistan). Thus, the complaint should have been dismissed.