The Week in Torts – Cases from the Week of April 28, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 17

CASES FROM THE WEEK OF APRIL 28, 2017

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO PROHIBIT DEPOSITION OF PLAINTIFF’S MINOR SON WHO WAS SITTING IN THE FRONT SEAT AT THE TIME OF THE ACCIDENT, AND WAS A MATERIAL WITNESS BOTH AS TO CIRCUMSTANCES IN THE VEHICLE AT THE TIME OF THE IMPACT, AND THE PLAINTIFF’S DAY-TO-DAY ACTIVITIES AND HOW THE ACCIDENT AFFECTED HER.

Akhnoukh v. Benvenuto, 42 Fla. L. Weekly D882 (Fla. 2^nd DCA April 19, 2017):

In this rear end collision, the plaintiff’s eight-year-old son was the only passenger and was sitting in the front seat. The defendants asserted that the plaintiff herself was negligent, and that she failed to use a fully-operational seatbelt.

The defendants sought to depose her minor son. Plaintiff filed a motion for protective order. The motion alleged that the boy was not injured in the accident or a party to the suit, and that he could not contribute any meaningful testimony relevant to the action. The motion also asserted that to force him to submit to a deposition would result in annoyance, embarrassment, burden and expense.

The plaintiff advised that her son had remembered the details of the accident, but had not spoken about it recently. She said she was at a complete stop when the vehicle was rear-ended and was wearing her seatbelt. She also described pain she was experiencing to her neck and shoulder every day. Still, as defendant told the court, the mom had gone to Busch Gardens with her son and ridden adult roller coasters (but she couldn’t remember their names).

Plaintiff’s counsel sought a protective order of the boy because of his age and lack of maturity (he was eleven at the time of the hearing, eight at the time of the accident). Plaintiff alleged that children are especially susceptible to intimidation during depositions.

Without hearing evidence about the boy’s lack of maturity, the court ruled that he should not be questioned about the state of the health of his mother. The order was entered without prejudice.

The court granted the petition. It found that when a party has been denied the right to depose an alleged material witness without finding good cause to preclude the deposition, the trial court departs from the essential requirements of law. Material witnesses are those who possess information going to some fact affecting the merits of the cause and about which no other witness might testify.

The court said it appeared the minor was a material witness as to the circumstances in the plaintiff’s vehicle at the time of impact, including the force of the impact, and whether the plaintiff was wearing a seatbelt. Even though the plaintiff herself could testify to those things, the court said it had previously found witnesses to be material even when the relevant information can be obtained from party.

In addition, the minor is the only other person who lives with the plaintiff, and would have unique knowledge of his mother’s day-to-day activities and how the accident has affected her. The defendants also suggested the minor would know which roller coasters he rode with his mother, which would allow them to establish that despite her injuries and ongoing pain, the plaintiff could ride roller coasters of specific speeds and G-force intensities.

Because the trial court did not require the plaintiff to establish good cause for the protective order, and plaintiff based her argument simply on the son’s age, lack of maturity and experience without any evidence, it was a departure from the essential requirements for the court to prevent the deposition.

COURT REVERSES SUMMARY JUDGMENT FOR COUNTY OVER TRIP AND FALL–FIRST IT WAS ERROR TO DETERMINE AS A MATTER OF LAW THAT THE UTILITY HAD NO LEGAL DUTY TO CORRECT OR WARN OF A PROTRUDING WATER VALVE, AND SECOND, THE COURT ERRED IN GRANTING THE UTILITY’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ITS SUBSEQUENT REMEDIAL REPAIRS TO ASPHALT SURROUNDING THE VALVE, BECAUSE THEY WOULD BE ADMISSIBLE AT TRIAL TO SHOW CONTROL IF THE UTILITY DENIED IT HAD ABILITY TO CONTROL THE ROADWAY AND MAKE REPAIRS UNDER THOSE CIRCUMSTANCES WHEN ITS OWN EQUIPMENT DID NOT CAUSE THE DAMAGE.

Lee County Department of Transportation v. The Water Association, 42 Fla. L. Weekly D884 (Fla. 2^nd DCA April 19, 2017):

The plaintiff tripped and fell over a water valve located on a county road. She sued the Lee County Department of Transportation and the Island Water Association.

The plaintiff alleged that she was legally walking on a roadway when she tripped over a protruding water valve, which caused her to sustain injuries. The valve was in an area used by pedestrians. She alleged that Island Water owed her a duty to exercise reasonable care and breached the duty by failing to maintain the valve in the roadway, failing to inspect the valve, and failing to warn of the danger of the protruding valve, and failing to correct the unreasonably dangerous condition of the valve. She also alleged that Island Water knew or should have known of the foreseeably dangerous condition, but failed to take any precautions.

At the time of the accident the asphalt surrounding the valve had separated from the valve, causing it to sink so it was no longer flush with the valve causing it to protrude. Island Water had made repairs to the asphalt around the valve to make it flush. Relying on an agreement between Island Water and Lee County, the court determined that Island Water’s only duty to the public was as to its equipment, and that it owed no duty in a circumstance where there was a depression in the asphalt around the valve that Island Water did not install or damage.

However, the issue of duty does not depend on the ownership of the property. A party who has control over premises does have a duty of care to keep it in repair. When two parties share control, both parties have a duty of care.

As a rule, utilities have a duty to exercise care both in the location or construction and use of and maintenance of its lines, poles and equipment. Applying the McCain analysis, when Island Water decided to operate utilities in a public roadway it assumed a common law duty to maintain its valves to allow the public to safely navigate on or around them. In this case, the valve was sticking up and it was foreseeable that someone would trip over it.

Even if the valve protruded due to the erosion of the asphalt, Island Water could not be absolved of its responsibility to keep the public safe from a known tripping hazard. Here, based on the trial court’s reliance on the agreement between Lee County and Island Water, the court found that Island Water had a duty to the public only as to its equipment. But the fact that the valve was protruding made that equipment a hazard. Further, an agreement between two parties does not necessarily absolve a party from a duty to the public.

The trial court found that Island Water had no duty regarding the asphalt around the valve, because Island Water had not installed and not damaged the asphalt during maintenance checks. But, despite a contract, a party who exercises control over a property may have a duty to maintain premises in a reasonably safe condition. Thus, it was error to determine as a matter of law that Island Water had no duty to correct or warn of a protruding water valve that was a tripping hazard.

Lee County contended that the trial court erred in granting the motion in limine to exclude evidence of subsequent remedial measures. Arguing that the exception in section 90.407 applies when evidence would be offered to show Island Water’s control over the asphalt, the trial court agreed that in light of the parties’ dispute over whether Island Water’s control of the roadway was controverted or not, it was a fact issue as to whether Island Water had the ability to control the roadway around the valve, even absent the need for repairs to Island Water’s equipment and rendering subsequent remedial measures admissible for that purpose.

On remand, the court said that the evidence of subsequent remedial measures would be admissible at trial to show control in the event that Island Water did deny that it had an ability to control the roadway to make repairs in circumstances when its equipment did not cause the damage. Also, subsequent remedial measures would be admissible as impeachment if an Island Water witness testified it did not have control over the roadway to make the repairs to the asphalt.

SERVICE OF A NOTICE OF INTENT TO INITIATE LITIGATION PRIOR TO THE EXPIRATION OF THE STATUTE OF LIMITATIONS, IS SUFFICIENT.

Bay County Board of County Commissioners v. Seeley, 42 Fla. L. Weekly D391 (Fla. 1^st DCA April 24, 2017):

In this case, the majority dismissed the defendant’s petition with citations to other cases and no written opinion. However, Judge Makar concurred, explaining that in this case where the plaintiff had sent her notice of intent to initiate litigation via certified mail to the county one day before the expiration of the statute of limitations, she had complied with presuit notice requirements, even though it was not received by the county until two business days after.

Section 766.106(4) requires a notice of intent to initiate litigation be served within the statute of limitations and rule 1.650(d)(1) says the notice of intent shall be served by certified mail prior to the expiration of the statute.

Thus, the relevant focus is whether the notice was served before the limitations period expired which in this case it was. However, the Second District has held to the contrary, and the judge stated that the First District’s opinion conflicts with the Second District’s and should be certified.