Get your objections right.

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 33

CASES FROM THE WEEK OF AUGUST 16, 2019

THERE IS A DIFFERENCE BETWEEN “GOLDEN RULE” AND “CONSCIENCE OF THE COMMUNITY” ARGUMENTS; MUST MAKE THE PROPER OBJECTION TO PRESERVE THE GRANTING OF NEW TRIAL.

R and W Rental Properties v. Warnick, 44 Fla. L. Weekly D2044 (Fla. 5th DCA August 7, 2019):

Plaintiff sued defendant for negligence after he was injured when stepping onto particleboard and falling through the ceiling while inspecting the attic in a house owned by the defendant. The defendant’s theme throughout trial was that the plaintiff was a professional home inspector, who should have been able to detect that the board at issue was particleboard and presented a danger.

During his closing, trial counsel for the defendant argued that the jurors were special, were in a special position for the case, and could “protect the homeowners of Volusia County.”

Plaintiff’s counsel objected and moved for a mistrial arguing that the comment about protecting homeowners was an improper “golden rule” argument. The trial court later agreed and granted a new trial.

The court first pointed out that the argument was not a “golden rule” argument. It did not urge the jurors to place themselves in the party’s position and to allow a recovery that they would want if they were the party. The attorney here did not ask the jurors to assume the position of either party nor did the statement “strike into the sensitive area of financial responsibility.”

While the argument may have been an “improper conscience of the community” remark (a conscience of the community argument is one that extends to all, impassioned and prejudicial pleas intended to evoke a sense of community law through community duty and expectation) it was not properly preserved by objection because the objection was made on the wrong legal basis. Thus, the trial court should have only granted a new trial if the argument was improper, harmful, incurable, and so damaging to the fairness of the trial and the public’s confidence in our system of justice that it required a new trial (which it wasn’t).

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ERROR TO DISMISS COMPLAINT FOR FAILURE TO COMPLY WITH PRESUIT REQUIREMENTS WHEN CASE ACTUALLY INVOLVED ORDINARY NEGLIGENCE.

McManus v. Gamez, 44 Fla. L. Weekly D2010 (Fla. 2nd DCA August 7, 2019):

The plaintiff’s complaint alleged that during an appointment for neurological testing, a doctor and his assistant left the patient alone on an exam table without sides, and after the testing was completed, he fell, striking his head and suffering a concussion.

When the defendants filed their first motion to dismiss arguing that plaintiff had failed to comply with presuit notice requirements, he responded by filing a request to have time to comply with those requirements, or in the alternative to have the case be accepted as an ordinary negligence case. The trial court abated the case to allow plaintiff the opportunity to comply with the presuit requirements.

Rather than filing a notice of compliance with presuit screening and notice requirements, the plaintiff instead filed a motion to amend his complaint, asking to change his allegations from sounding in medical negligence to ordinary negligence. He argued that because the physician and his assistant were not rendering medical care at the time he fell off the table, the claim was for ordinary negligence.

The defendants later filed a second motion to dismiss after the statute had run and the trial court dismissed that case with prejudice for having failed to comply with the presuit notice requirements.

In its de novo review, the court reminded us that the mere fact that a negligent act occurred in a medical setting does not make it medical negligence. Medical negligence has been defined by the legislature as “a claim, arising out of the rendering of, or the failure to render medical care or services.” For a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. A complaint’s allegations govern the analysis as to whether a claim is for ordinary negligence or medical malpractice and should generally be resolved in favor of the claimant.

The court distinguished claims sounding in medical negligence where patients had fallen out of hospital beds under circumstances where a nurse instructed the patient to move from a test bed to a gurney, or the patient was admitted to the ER disoriented and fell off a stretcher with an unsecured guardrail, etc. In this case, however, it was clear from the plaintiff’s allegations that no medical services were being provided, and that the testing had been completed and no other persons were assisting the plaintiff off the table when the injuries occurred. Unlike in other cases, the plaintiff had not been admitted to a hospital, was not currently undergoing any sort of treatment, and was not in the process of either being assisted or instructed to do something by a healthcare provider.

The court observed that while the plaintiff’s allegations were somewhat vague, the Florida Supreme Court has deemed some claims involving “hospital bed falls” as falling into “a gray area,” and whether those types of claims sound ordinary negligence or medical negligence depends on both the specific circumstances under which the injury occurred in the allegations in the pleadings. The court did note that while it was reversing the dismissal, its opinion relied solely on the four corners of the complaint and should not be read to foreclose a later challenge should the case “morph into” one grounded in medical negligence.

TRIAL COURT PROPERLY DENIED INSURANCE COMPANY’S MOTION FOR FEES PURSUANT TO A JOINT PROPOSAL FOR SETTLEMENT THAT PREVENTED PLAINTIFF’S FROM INDEPENDENTLY EVALUATING OFFERS THAT WOULD ONLY CAUSE FURTHER LITIGATION.

Safepoint Insurance Co v. Brown, 44 Fla. L. Weekly D2015 (Fla. 3rd DCA August 7, 2019):

Plaintiffs sued the insurance company after it denied a claim for water damage. The insurer served separate proposals for settlement upon each plaintiff. The proposal stated that if either plaintiff accepted the proposal, she would agree to indemnify the insurance company for fees and cost including any incurred from continuing litigation should the other party not settle.

If a settlement proposal for fees and cost requires both parties to mutually agree and prevents either party from individual accepting the proposal, the proposal will be deemed invalid. Each individual must have an opportunity to settle the suit knowing the extent of his or her financial responsibility.

In this case, if one plaintiff accepted the proposal and the other continued litigation, the one who accepted would be obligated to pay the insurance company for an indeterminable amount of money, which goes against a particularity requirement of 1.442. Proposals that attempt to divest a plaintiff of independent control of the decision to settle and are tacitly contingent upon joint acceptance are patently ambiguous.

TRIAL COURT DID NOT ABUSE DISCRETION BY GRANTING SUMMARY JUDGMENT WHILE DISCOVERY DEPOSITION STILL PENDING—IT WAS CLEAR FROM THE RECORD THAT THE PARTY SEEKING CONTINUANCE HAD ADEQUATE OPPORTUNITY TO ENGAGE IN DISCOVERY AND ADDITIONAL DEPOSITIONS WERE NOT LIKELY TO PRESENT MATERIAL FACTS RELEVANT TO THE COURT’S DISPOSITION.

Trust Real Estate Ventures v. Desnick, 44 Fla. L. Weekly D2016 (Fla. 3rd DCA August 7, 2019):

VOICEMAIL PROPERLY ADMITTED AS EXCITED UTTERANCE.

Baity v. State, 44 Fla. L. Weekly D2053 (Fla. 1st DCA August 9, 2019):

During the trial for murder and other charges, the State called the defendant’s mother. She testified about an early morning phone call from the defendant, in which he told her he might have beat the victim. Shortly after that conversation, the defendant’s mother called the victim and left her an urgent voicemail urging her not to go to the defendant’s house for her own safety.

The victim testified that the voicemail sounded scared and that the mother seemed upset so that is why the victim called her back. The mother also testified she was concerned that the defendant would violate his injunction by having contact with the victim. The mother also testified that she made the call to the victim shortly after her call with the defendant. The court concluded there was no error in admitting the voicemail into evidence pursuant to the exciting utterance exception to the hearsay rule.