Rear-end presumption leaves a bit of wiggle room

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 17

CASES FROM THE WEEK OF APRIL 26, 2019

TRIAL COURT ERRED IN GRANTING PARTIAL SUMMARY JUDGMENT, FINDING DEFENDANT SOLELY LIABLE FOR REAR-END COLLISION AS A MATTER OF LAW--SUFFICIENT EVIDENCE FOR JURY TO INFER THAT PLAINTIFF WAS PARTIALLY LIABLE FOR THE COLLISION.

Restal v. Nocera, 44 Fla. L. Weekly D1001 (Fla. 5th DCA April 18, 2019):

On a motion for clarification, the court agreed that there were issues of fact that overcame the presumption that defendant was solely at fault for a rear-end collision. Still, there was evidence that the defendant had followed too closely. The court affirmed the summary judgment as to the defendant’s negligence, but reversed on the issue of comparative negligence.

According to the plaintiff’s deposition testimony, she was attempting to make a U-turn on an unfamiliar road, and began to move towards the median before realizing that she could not make a U-turn at that location. She said she slowed down somewhat, but maintained a speed of around 33 miles per hour. She testified she did not use her brakes at all to move into the turn lane and shortly thereafter was hit from behind by the defendant.

Under these facts, the rear-end presumption could not completely insulate a negligent driver from liability for comparative negligence. There were disputed issues of comparative negligence, leading the court to reverse the summary judgment on comparative fault.

TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES PURSUANT TO SECTION 768.79 IN A CASE GOVERNED BY FEDERAL MARITIME LAW--GENERALLY, ABSENT AN EXCEPTION, ATTORNEY’S FEES MAY NOT BE AWARDED PURSUANT TO A STATE FEE SHIFTING STATUTE IN AN ADMIRALTY CASE.

Marco Marine Construction v. Kopras, 44 Fla. L. Weekly D975 (Fla. 2nd DCA April 17, 2019):

The Second District receded en banc from a case it had previously decided which it found was in conflict with federal maritime law. Now, absent certain exceptions, state fee shifting statutes such as section 768.79 may not be applied where those statutes may conflict with federal maritime law.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW BY FAILING TO CONDUCT AN IN CAMERA HEARING BEFORE ORDERING DISCLOSURE OF MATERIALS AND TESTIMONY WHICH DEFENDANT ASSERTED WAS ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGED--FAILING TO DEFINE THE SCOPE OF ANY PURPORTED WAIVER OF PRIVILEGE, AND COMPELLING THE PRODUCTION OF THE INFORMATION WOULD RESULT IN IRREPARABLE HARM.

American Airlines v. Cimino, 44 Fla. L. Weekly D979 (Fla. 4th DCA April 17, 2019):

The trial court had determined that the defendants had waived privileges through their affirmative defenses. The court reached this decision without conducting an in camera review of the privileged material, and without defining the scope of any waiver.

The litigation arose from a man’s suicide. He had killed himself the day after he was fired by his supervisor who had only recently become his supervisor. The supervisor told him he was being fired for time card fraud. The decedent was a manager in the cargo area at the Miami Airport and had worked for American Airlines for over 34 years purportedly without incident.

The lawsuit was based on violations of the Florida Civil Rights Act. The man’s widow asserted he had been targeted by this supervisor because the supervisor “hated Anglos,” which led him to fire white employees. The complaint further alleged that American knew about the bullying and harassment, and knew the employee was suicidal after the firing, because he participated in their mental health program which had recommended additional medication and treatment.

The discovery at issue concerned American’s investigation after receiving anonymous letters from other employees following the man’s suicide. The letters referenced a petition to remove the supervisor and other bullying supervisors from their positions. According to American, the purpose of the investigation was to gather information to allow American’s legal department to assess American’s liability for potential claims brought by the estate and other employees relating to these workplace conditions.

The defendant had raised certain defenses: a “mixed motive” defense, a “good faith” defense and others. Plaintiff filed three motions to compel discovery of materials and testimony that American asserted was attorney-client/work product privileged. Specifically, the estate moved to compel non-parties to answer certain deposition questions and to compel American to produce documents associated with a request for production.

American argued that the information sought was protected by these privileges and proposed that the trial court should review the documents in camera if there were any questions. Without conducting an in camera review, the trial court ordered the documents produced.

The Fourth District granted the petition for writ. Finding that the defendants would suffer irreparable harm not remediable on appeal if they were compelled to produce privileged materials and witness testimony, the court quashed the discovery order and remanded to the trial court with instructions to conduct an in camera inspection to delineate the scope of any waiver.