The Week in Torts – Cases from the Week of February 10, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 6

CASES FROM THE WEEK OF FEBRUARY 10, 2017

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR HOSPITAL AND HOSPITAL’S CONTRACTED CLEANING COMPANY, WHERE THERE WAS NO EVIDENCE THAT THEY HAD ACTUAL CONSTRUCTIVE KNOWLEDGE OF THE LIQUID THAT WAS ON THE FLOOR IN THE EMERGENCY ROOM.

Encarnacion v. Lifemark Hospitals of Florida, 42 Fla. L. Weekly D304 (Fla. 3^rd DCA February 1, 2017):

Plaintiff came to assist her elderly mother who had arrived at the emergency room a few hours after having a stroke. After waiting for five hours to determine the status of when a room would open up for her mother, the plaintiff left the room and saw an EMS paramedic with a spray bottle in the hallway cleaning a stretcher. She attempted to walk around the area where he was cleaning, but slipped and fell due to what she guessed was spray liquid on the floor.

When the plaintiff filed suit two years later, she stated that she “believed” the substance she slipped on was that that was being used by the EMS paramedic. As time went on, she became a little less certain about the identity of the person who was cleaning the stretcher, and testified there were no signs indicating that the floor was wet. She also testified later that the substance smelled like Pine-Sol but she did not know how long it had been on the floor.

There was no evidence and the record suggested that the existence of the foreign substance on the floor was known to the hospital, and plaintiff had no circumstantial evidence that the hospital should have known of it in the exercise of ordinary care. The court also noted that the plaintiff’s “belated testimony” that the substance on the floor was oily, dirty and dark, even if true as it was assuming, was insufficient to create a jury issue. That testimony must be accompanied by a “plus,” the court said; namely some additional fact or facts from which a jury can reasonably conclude that the substance was on the floor long enough to have become discolored, without assuming other facts such as the substance in its original condition was oily, dirty or dark.

LITIGATION PRIVILEGE DOES NOT BAR THE FILING OF A CLAIM FOR MALICIOUS PROSECUTION.

Debrin v. Fischer, 42 Fla. L. Weekly S141 (Fla. February 9, 2017):

In the original civil proceeding, the plaintiffs’ suit added a defendant to their original complaint, suing him for defamation and other torts. The plaintiffs later dropped the added defendant.

That defendant then sued the original plaintiffs for malicious prosecution, claiming that they acted with malice toward him in pursuing the underlying proceeding without probable cause. Plaintiffs moved for summary judgment arguing that the litigation privilege afforded them immunity for their conduct of joining him. Plaintiffs relied on a Third District case holding that the litigation privilege applies to a cause of action for malicious prosecution. Based on that authority, the trial court then granted the motion for summary judgment.

However, the Fourth District disagreed and reversed. It held that the litigation privilege cannot be applied to bar the filing of a claim for malicious prosecution.

On a certified conflict, the supreme court agreed with the Fourth District. It found that the law has long recognized that judges, counsel, parties and witnesses should be absolutely exempted from liability to an action for defamatory words published in the course of a judicial proceeding regardless of how false or malicious the statements may be, and further found that the statements must bear some relation to or connection with the subject of the inquiry.

Holding that applying the litigation privilege here would eviscerate a long established cause of action for malicious prosecution, specifically that the first element of a claim for malicious prosecution is that an original criminal or civil proceeding against the present plaintiff was “commenced or continued,” the court explained that malicious prosecution could never be established, if causing the commencement or continuation of original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege.

Thus, the court held that the litigation privilege does not bar the filing of a claim for malicious prosecution, when the other elements of malicious prosecution are met.

IN A MURDER CASE, NO ERROR IN DENYING A MOTION FOR MISTRIAL AND REQUEST FOR A NEW TRIAL BASED ON A JUROR’S AFFIDAVIT ALLEGING THAT THE JURORS HAD CONDUCTED INTERNET RESEARCH REGARDING THE MEANING OF THE DEFENDANT’S FACIAL TATTOO DURING THE PENALTY PHASE OF DELIBERATIONS–EVIDENCE SUFFICIENT TO SUSTAIN CONVICTION FOR FIRST DEGREE PREMEDITATED MURDER ANYWAY.

Dubose v. State, 42 Fla. L. Weekly S143 (Fla. February 9, 2017):

In this murder case, the trial judge held a hearing where he questioned a juror about some of the allegations made in her affidavit, stating that some of the jurors had used their cell phones to google “teardrop tattoos on gang members” to find out what they meant. They allegedly learned that the tattoo is what gang members receive after they kill someone. In addition, the juror alleged that racial references were also made during the deliberations.

The juror told the judge that no one appeared to be conducting internet research during deliberations. As it turned out much of the testimony the affiant juror provided was related to unauthorized cell phone usage during the trial. She said she did not observe anyone using a cell phone during the guilt-phased deliberations but recalled the jury foreperson using his cell phone on breaks and during sidebars, although she could not see what he was doing on his cell phone.

When questioned regarding her statement that other jurors conducted internet research regarding the meaning of the tattoo, the affiant juror explained that the discussion of the defendant’s tattoo occurred during a break, and resulted from the defendant cutting his dreadlocks after the guilt phase, thereby making the tattoo more pronounced during the penalty phase.

When questioned regarding her responses during the polling of the jury in the guilt phase and the penalty phases, the juror inquired as to whether she could be subjected to perjury charges. She ultimately refused to state whether she agreed that the announced verdict reflected her vote. She stated she did not have a problem that the answer that she gave to the polling question during the guilt phase, but that her answers during the penalty phase bothered her. She said she went along with the verdict because she has three children and did not want to be singled out in the courtroom by spectators and the media.

The court concluded that the evidence from the juror’s interview supported the conclusion that some of the jurors had cell phones and tablet devices during the guilt and penalty phases and during breaks, but not during deliberations. None of the interviewed jurors testified that any of the jurors had actually used their electronic devices to conduct research related to the case or made disparaging racial remarks about the defendant.

Despite the misconduct on the part of the complaining juror, there was no evidence that the use of the electronic devices contributed to the jury verdict. The court did not believe that the improper discussions were matters inuring to the verdict, and there was no reasonable probability that the breach was prejudicial during the penalty phase of the trial. By that point, the defendant had already been convicted of murder, and during the penalty phase the jury was informed that the defendant had a prior violent felony.

The error alone was not enough to reverse the conviction, but the supreme court–based on cumulative errors with respect to the penalty phase–did vacate the death sentence.

ARBITRATION AGREEMENT WHICH INCORPORATES THE STATUTORY CAP ON DAMAGES WITHOUT ALSO ADOPTING THE CONCESSION OF LIABILITY PROVISIONS OF THE MEDICAL MALPRACTICE ACT, IS UNENFORCEABLE BECAUSE IT ENJOYS THE BENEFITS OF ARBITRATION WITHOUT ALL OF ITS PROVISIONS–PROVISION NOT SEVERABLE.

DiLorenzo v. Lam, 42 Fla. L. Weekly D286 (Fla. 2^nd DCA February 1, 2017).

SUMMARY JUDGMENT FOR RESTAURANT REVERSED IN CASE WHERE PLAINTIFF ALLEGED HE WAS INJURED WHEN SWALLOWING A BROKEN MUSSEL SHELL.

Dellatorre v. Buca, Inc., 42 Fla. L. Weekly D289 (Fla. 4^th DCA February 1, 2017):

The trial court ruled as a matter of law that the broken mussel shell that the plaintiff swallowed had to have been broken by him, and not the restaurant in serving the dish.

The court stated that the record raised doubt that there were no issues of material fact, about which party broke the shell, and whether the broken shell was submerged in the pasta when it was served to the plaintiff (and thus not visible when consumed) and required juror resolution.

Explaining that courts conduct a “reasonable expectation” test to determine if a restaurant is negligent when it serves a patron a harmful substance, the court found that the trial judge erred in ruling as a matter of law that the broken shell could not have occurred at the hands of the restaurant.

TRIAL COURT ERRED IN FINDING NO VALID AGREEMENT TO ARBITRATE WHEN PURCHASE ORDER AND FINANCING AGREEMENT FOR SALE OF A CAR WERE IN ENGLISH (BUT THE PLAINTIFF BUYERS COULD NOT COMMUNICATE IN ENGLISH)–NO EVIDENCE THAT THE BUYERS WERE RUSHED, PRESSURED, COERCED OR NOT GIVEN AN OPPORTUNITY TO ASK QUESTIONS OR SEEK ASSISTANCE.

Kendall Imports v. Diaz, 42 Fla. L. Weekly D294 (Fla. 3^rd DCA February 1, 2017):

In this class action lawsuit against a car dealer and its finance director, plaintiffs sought damages alleging violations of Florida’s Deceptive and Unfair Practices Act (FDUTPA). The dealer filed a motion to compel arbitration based on clauses found in the purchase order and financing agreement. The trial judge found that the buyers’ inability to speak or read English, coupled with the fact that the court believed the arbitration provisions in the purchase order and financing agreement conflicted, and that even if the documents had been written in Spanish, a reasonable person would not have had a clear understanding of the precise terms. Both findings were erroneous.

Looking at the plaintiffs’ inability to speak English, the court relied on a supreme court decision noting that for a misrepresentation to be a ground for rescission and cancellation, it must reference a material fact unknown to the complainant, either from his not having examined it, or for want of an opportunity to be informed.

However, in that case, there were misrepresentations made by the dealer’s employees. In this case, there was no evidence that the buyers had been rushed, pressured or coerced notwithstanding that they could not speak English. Even though the employees did not take it upon themselves to explain everything to the plaintiffs (like the arbitration provisions) that was far different than misrepresenting what the effect of the provisions was. The buyers admitted that they signed the documents without attempting to read them or to learn what they were agreeing to with respect to everything but the payment terms.

In looking to whether the arbitration provisions conflicted and affected the buyers’ ability to understand the terms, the court began by explaining that a single term in an arbitration clause cannot be interpreted in isolation but must be read with the rest of the contract. Another primary rule of contract construction, is that where provisions in an agreement appear to conflict, they should be construed to be reconciled if possible. So when there are two arbitration clauses that appear in conflict, or the arbitration clause appears to be in conflict with another provision, the court must try to reconcile them.

In reading the agreement, the court found there was no conflict, and no procedural unconscionability.