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FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 18

CASES FROM THE WEEK OF May 3, 2019

A NON PARTY IN A SPOLIATION CASE DOES NOT HAVE A STATUTORY OR CONTRACTUAL DUTY TO PRESERVE EVIDENCE, WHEN THE EVIDENCE IS ALREADY DESTROYED BY THE TIME SHE IS SERVED WITH A SUBPOENA.

Shamrock-Shamrock, Inc v. Remark, 44 Fla. L. Weekly D1093 (Fla. 5th DCA April 26, 2019):

The plaintiff sued the city regarding a rezoning issue. A woman who ultimately joined the planning board had sent a letter to the board opposing the rezoning request. The woman took then part in hearings before the board and voted on the plaintiff’s appeal, despite having a bias and pre-determined opinion against it as plaintiff allege.

The zoning member gave a deposition and testified that she had obtained a new desktop computer and destroyed her old computer five months before (and about six months after they first started trying taking her deposition). She preserved no records, documents, or emails from her old computer, and did not inform anybody, including the City Attorney she was destroying it.

Plaintiff then filed a two-count complaint against the woman directly, stating that she intentionally destroyed her old computer, or negligently destroyed it in bad faith.

Under these facts involving an independent cause of action for third party spoliation, the court reminded us that a duty could arise if there was evidence of a contract, statue or properly served discovery request.

However, in this case, the plaintiff was relying on dicta in a case noting that courts have found a duty to preserve evidence when a person should reasonably foresee litigation.

The court ruled that that duty did not apply to a presuit duty in the case. Instead, it affirmed the trial court’s adverse inference as a sanction stating that even in the absence of a legal duty, spoliation of evidence results in an adverse inference against a party who discarded or destroyed evidence.

However, there is no Florida court that has recognized a common law duty for third – party preservation of evidence based on the knowledge or foreseeability of litigation. The court declined to articulate such a duty under these circumstances.

Because there was no statute contract or discovery request that would impose a clearly defined duty on the zoning board member to preserve any potential relevant evidence, it would only arise through her purported knowledge of the plaintiff’s pending litigation. Otherwise, such a broad pronouncement of a duty would be tantamount to requiring a nonparty witness to anticipate the need of others’ lawsuits.

There are innumerable circumstances where a nonparty to litigation may have evidence relevant to a case and may know of its relevance, and that knowledge by itself cannot give duty to safeguard the evidence in anticipation of litigation.

PROCEDUAL STEPS FOLLOWED IN PUNITIVE DAMAGE CASE WITH A PROPOSED AMENDED COMPLAINT, A TIMELY PROFFER, AND A SUFFICENT ORDER -- NO BASIS FOR CERTIORARI.

The Event Depot Corp v. Frank, 44 Fla. L. Weekly D1060 (Fla. 4th DCA April 24, 2019):

The plaintiff was injured when she fell from the “Psycho Swing” amusement ride at the Seminole Ball Park in Hollywood Florida. She alleged that the swing was missing crucial safety equipment, safety instructions, etc.

Plaintiffs moved for leave to amend their complaint to state a claim for punitive damages. Plaintiff’s attached an amendment their complaint, and an evidentiary proffer.

Reminding us that courts are without jurisdiction to review the sufficiency of the Plaintiffs evidentiary proffer, the appellate court noted that its review is limited to whether the trial court complied with procedural requirements of section 768.72. Because the requirement was followed, there was no basis for certiorari.

TRIAL COURT ERRED IN DISMISSING CLAIM FOR INTENTIONAL TORT OF FALSE ARREST, WHERE PLAINTIFF ALLEGED ARREST WAS NOT MADE PURSUANT TO A FACIALLY VALID WARRANT -- SOVEREIGN IMMUNITY DOES NOT BAR FALSE ARREST AGAINST THE GOVERNMENT—ALSO NO ERROR IN DISMISSING NEGLIGENCE CLAIM BASED ON A COMMON LAW DUTY TO CONVEY ACCURATE INFORMATION AND MAINTAIN ACCURATE RECORDS, AS PLAINTIFF FAILED TO ALLEGE A SPECIAL RELATIONSHIP IMPLICATING A DUTY SEPARATE FROM THE DUTY OWED TO THE PUBLIC AT LARGE.

Florez v. Broward Sheriff’s Office, 44 Fla. L. Weekly D1069 (Fla. 4th DCA April 24, 2019):

Plaintiff sued BSO for negligence and false arrest after BSO arrested and detained him for ten days based on a previously executed warrant. In the complaint, plaintiff alleged that although he was initially served with the warrant by BSO while an inmate housing, BSO failed to follow its own protocol. As a result, BSO entered the executed warrant as active in its system.

The court dismissed the plaintiff’s lawsuit with prejudice, citing to case law establishing the BSO did not owe plaintiff a duty to ensure that the warrant was properly recorded in its system. The appellate court agreed with that ruling.

However, the court did not agree that the lack of duty precluded the plaintiff from maintaining a cause of action for the intentional tort of false arrest.

The tort of false arrest is an intentional tort, and does not necessitate the same showing of duty requisite to a negligence claim. Instead, it requires proof of (1) the unlawful detention and deprivation of liberty of a person; (2) against the person’s will; (3) without legal authority or ‘color of authority’ and (4) which is unreasonable and unwarranted under the circumstances.

When a person is arrested by an agency based on a facially sufficient and validly issued arrest warrant, that person can’t satisfy the elements of a false arrest claim, because there is legal authority on the agency. However, if the warrant is void and facially invalid, the analysis is different. Because there was potential tort liability for the false arrest, and because sovereign immunity does not bar a false arrest suit against the government, the court err in dismissing the plaintiff’s false arrest count.

PROPOSAL FOR SETTLEMENT SERVED ONE HUNDERED AND THIRTY TWO DAY AFTER PLANTIFFS FILED SUIT, VALID.

Old Dominion Ins. Co. v. Tipton, 44 Fla. L. Weekly D1102 (Fla. 2nd DCA April 26, 2019):

132 days after the plaintiff filed suit, the insurance company served a proposal for settlement. 8 days later, the plaintiff moved to strike the proposal, contending it was both premature in light of the stay of the underlying case pursuant to an insurance statute, and because it was not made in good faith. However, plaintiff did not seek an extension of time to accept the proposal pending the outcome of the motion.

The trial court agreed the proposal was premature based on the statute, and granted the plaintiffs motion, well after the thirty-day day period had elapsed. The court explicitly did not reach the plaintiffs contention of “lack of good faith”.

The insurance company prevailed at trial but the trial court denied the motion for attorney’s fees.

The appellate court reversed. Under rule 1.442 (b), a proposal to a plaintiff should be served no earlier than 90 days after the action has been commenced, and as that was done, and the period is mandatory, the proposal was valid and timely.

There is nothing within rule 1.442 indicating that a stay under a different statue or the operation of another rule or statute can stay the period. The rule simply provides that a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. The court held that the insurance statute issue did not stay the 90 day waiting period, indicating also that there was no basis for a stay (however there is nothing that says that explicitly).