FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 10

CASES FROM THE WEEK OF MARCH 10, 2017

ERROR TO ENTER SUMMARY JUDGMENT IN SLIP AND FALL CASE ON THE BASIS OF THE OBVIOUS DANGER DOCTRINE, WHERE THERE WAS A FACTUAL ISSUE AS TO WHETHER THE OWNER OR THE POSSESSOR BREACHED THE DUTY TO MAINTAIN THE PREMISES.

Trainor v. PNC Bank, 42 Fla. L. Weekly D526 (Fla. 5th DCA March 3, 2017):

A woman drove to a PNC branch to make a deposit with the drive-thru teller. She arrived to a closed bank, and opted to make her deposit through the bank’s outdoor ATM. After parking her car, she discovered that the area was under construction as there was a barricade in front of the ATM. According to the plaintiff, a sign with an arrow in red lettering directed customers to walk around. As the plaintiff complied and began to walk around the barricade, she stepped in what she described to be a pot hole which caused her to fall and suffer injury.

PNC moved for summary judgment based on the obvious danger doctrine. The plaintiff responded that the condition was not “open and obvious,” and even so, the doctrine did not absolve the bank of its duty to maintain.

Because the plaintiff was an invitee, PNC owed a duty to use ordinary care to keep the premises in a reasonably safe condition, and to give timely notice of latent perils which are known or should be known by the occupier. Thus, owning the property is not the determining factor; rather, it is the failure of the person in possession and control to use due care. Thus, the owner of the parking lot, the general contractor, and the possessors of the property could all owe a joint legal duty under premises liability theory (although that ground was not raised in the defendant’s motion).

Additionally, while the open and obvious nature of a hazard may discharge a land owner’s or a possessor’s duty to warn, it does not discharge the land owner or possessor’s duty to maintain the property in a reasonably safe condition.

It is important that plaintiffs do allege breaches of both of those duties because the doctrine does not apply when the negligence is predicated on a breach of the duty to maintain. Also, the court noted that in contrast to popular belief among attorneys and judges, the duty to maintain is not related to or discharged with a duty to warn. Instead, it is a “distinct duty that does not depend on whether or not the condition was open and obvious.”

A plaintiff’s knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment. The court reversed the summary judgment in this case.

ERROR TO DENY ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT BASED ON AMBIGUITY.

Atlantic Civil v. Swift, 42 Fla. L. Weekly D516 (Fla. 3rd DCA March 1, 2017):

In yet another case involving a proposal for settlement and a release, the plaintiff conditioned resolution on a mutual exchange of general releases, and attached them to the proposal. The court reminded us that in interpreting a settlement proposal, the intention of the parties must be determined from examination of the whole contract not simply from separate phrases or paragraphs.

In looking at the complete language of the proposal and the attached releases, the court found there was no requirement that all defendants had to agree in order to effectuate the settlement as defendants asserted. The use of the term “defendants” in the plural was a matter of convenience, but the actual language did not require them to act in tandem.

As is usually the case in these PFS decisions, one judge dissented.

TRIAL COURT IMPROPERLY DIRECTED VERDICT ON AMOUNT OF PAST MEDICAL EXPENSES CLAIMED IN AN ACTION SEEKING DAMAGES ATTRIBUTABLE TO THE FIRST OF TWO UNRELATED ACCIDENTS WHERE CONFLICTING RECORD EVIDENCE EXISTED--ALSO, BECAUSE PLAINTIFF ARGUED TO THE JURY THAT FUTURE MEDICAL EXPENSES AND PAIN AND SUFFERING SHOULD BE ATTRIBUTED TO THE FIRST ACCIDENT, THE AMOUNT OF THOSE DAMAGES HAD TO ALSO BE RECONSIDERED BY THE JURY AT A NEW TRIAL.

Haney v. Sloane, 42 Fla. L. Weekly D534 (Fla. 1st DCA March 3, 2017):

Plaintiff received a $1.6 million verdict in this auto accident case. The plaintiff had been involved with the defendant in a car accident in March of 2012 that injured the plaintiff. After the accident, she received chiropractic and pain management care, and had a spinal fusion. Once her medical interventions and appointments substantially subsided, the plaintiff was involved in a second unrelated accident in December of 2013 where she also sought medical help. From that accident she was diagnosed with TMJ.

The plaintiff sued the defendant for the injuries from the first accident. However, the defendant argued that her medical problems primarily came from the second accident. After the parties presented their evidence, plaintiff moved for a directed verdict as to her past medical expenses incurred both before and after the second accident, arguing that the jury could not differentiate between the injuries caused by the two accidents. The court granted the motion over the defendant’s objection and then informed the jury that the past medical expenses were in excess of $130,000 and legally attributable to the first accident.

The court found that ruling was error. Where a plaintiff is involved in successive accidents but sues just one of the tortfeasors who caused the injuries, it is the jury’s role to determine whether the injuries can be apportioned between the first and second accident. If the jury cannot apportion, then it may find either tortfeasor responsible for all of the injuries.

Here, because there was conflicting evidence regarding the causation of the injuries and the attribution of expenses between them, it was error to grant directed verdict.

In light of that error, and because the plaintiff had argued to the jury that all her future medical expenses and pain and suffering should also be attributed to the first accident based on the directed verdict, the amount of those damages also had to be considered by the jury at the new trial.