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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 14

CASES FROM THE WEEK April 10, 2020

THE SECOND DISTRICT ANALYZES THE DANGEROUS INSTRUMENTALITY DOCTRINE AS APPLIED TO FAMILIES, WHERE ONLY ONE FAMILY MEMBER IS THE TITLE OWNER BUT MULTIPLE FAMILY MEMBERS ARE PERMISSIVE USERS OF THE VEHICLE—COURT DRAWS LIMITS AND CERTIFIES A QUESTION AS ONE OF GREAT PUBLIC IMPORTANCE.

Lambert v. Emerson, 45 Fla. Weekly D760 (Fla. 2nd DCA April 01, 2020):

A Man was the title owner of a vehicle, but his wife used it as her primary vehicle. Additionally, other members of the household were free to drive the car.

One of the couple’s sons got into a terrible accident with a motorcyclist, rendering him quadriplegic. The plaintiffs sought to bring a vicarious liability claim against both the husband as the title owner and against the wife as a “bailee,” because she was the primary driver and had also given permission for the son to use the vehicle.

After an extensive analysis of Florida’s dangerous instrumentality doctrine as applied to family members, the Second District concluded that the current state of the law does allow title owners of vehicles who entrust their cars to other family members who in turn cause injury, to be held vicariously liable, however, the family member with the identifiable property interest in the vehicle (whether a bailment or some other recognized property interest) may only be held vicariously liable if the title owner denies vicarious liability for the entrustment.

In this case, there was no dispute that the wife was a bailee of the Sonata (which the jury determined), but because her husband, the undisputed title owner, entrusted the same vehicle and did not deny various liability, only he would be held vicariously responsible.

Because of the quirky development of dangerous instrumentality law over a hundred years in Florida, making the answers to some of these questions unclear, the court certified the following question as one of great public importance:

UNDER THE DANGEROUS INSTRUMENTALITY DOCTRINE, CAN ONE FAMILY MEMBER WHO IS A BAILEE OF A CAR, BE HELD VICARIOUSLY LIABLE WHEN THE CAR’S ACKNOWLEDGED TITLE OWNER IS ANOTHER FAMILY MEMBER WHO IS ALSO VICARIOUSLY LIABLE UNDER THE DOCTRINE?

CHIEF JUSTICE OF THE FLORIDA SUPREME COURT AUTHORIZED TO INSTITUTE MITIGATING MEASURES NECESSARY TO RESPOND TO PUBLIC HEALTH OR OTHER EMERGENCIES THAT MAY IMPACT THE ABILITY OF BAR MEMBERS TO MEET THE PROCEDURAL REQUIREMENTS OF THE BAR RULES.

In Re: Covid-19 Emergency Measures Relating to the Rules Regulating the Florida Bar, 45 Fla. L Weekly S123 (Fla. April 09, 2020):

The court amended rule regulating the Florida Bar 1-12.1 to state that the Chief Justice is authorized to institute mitigation measures necessary to respond to public health emergencies, and other emergency situations that may impact Bar members’ abilities to meet procedural requirements set forth in the Bar Rules. The court added subdivision (j) called “Action by the Chief Justice” to Rule 1-12.1. It allows the Chief Justice the ability to enter orders to suspend or extend deadlines or otherwise change time periods set forth in the Rules (though it does not seem to apply to things like the statute of limitations).

THE LEVEL OF CONDUCT REQUIRED TO BRING A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

Medina v. Genex Services, 45 Fla. L Weekly D753 (Fla. 3rd DCA April 01, 2020):

The tort of intentional infliction of emotional distress requires that a party’s conduct go beyond mere “bad faith,” and instead be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” A very high standard indeed.

INSURED ALLOWED TO MAKE A VIDEO AND AUDIO RECORDING WHILE THE INSURER’S APPRAISER INSPECTS THE INSURED’S PROPERTY—NO VIOLATION OF APPRAISER’S CONSTITUTIONAL RIGHT TO PRIVACY.

State Farm v. Chirino, 45 Fla. L Weekly D756 (Fla. 3rd DCA April 01, 2020):

State Farm petitioned for a writ of certiorari to quash the trial judge’s decision to allow its insured to make a video and audio recording of its appraiser’s inspection of the insured’s property, for the purpose of an appraisal authorization under the policy.

State Farm asserted that its appraiser had a right to privacy protected by the Florida Constitution when visiting the insured’s home for the purposes of conducting an inspection, and that right would be lost with the taping.

The court explained that Florida’s constitutional right to privacy protects persons from governmental intrusion, not private intrusion, and the insured and his representatives were entitled to be present during the inspection.

Additionally, State Farm asserted that the making of the recording would be unfairly used to harass or intimidate the appraiser. The court disagreed, finding that while the possibility of such misconduct could be remedied by the trial court if it did occur, it still did not rise to the level of a irreparable harm needed for certiorari.

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COURT AFFIRMED TWO EVIDENTIARY RULINGS MADE DURING SECOND TRIAL REGARDING IMPEACHMENT EVIDENCE AND STANDARD OF CARE OPINIONS.

McDuffie v. Uribe, 45 Fla. L Weekly D757 (Fla. 3rd DCA April 01, 2020):

In this medical malpractice case brought by former Miami Dolphins player, O.J. McDuffie, the plaintiff sued his treating physician for damages resulting from his career ending toe injury in 1999.

The case went to trial once and resulted in a final judgment for the plaintiff. The trial court granted a new trial, which was affirmed by the Third District.

Before the second trial, the defense filed a motion in limine to preclude any reference to the defendant doctor’s prior testimony or opinions concerning the fault of a non-party, which was improperly injected into the first trial. The trial court granted the motion in limine and the jury reached a verdict for the defendants the second time.

Plaintiff also asserted that the trial court erred by excluding the prior testimony of the defendant physicians as impeachment evidence, and by allowing two other physicians to testify without being qualified as expert witnesses.

Finding that the plaintiff’s description of the impeachment evidence was inaccurate, and noting that the admissibility of evidence is within the sound discretion of the trial court, the court refused to disturb the ruling about impeaching the doctors with their prior testimony.

Additionally, the court observed that when a treating physician testifies as a fact witness concerning his or her own medical performance on a particular occasion, and does not opine about the medical performance of another, the trial court was not wrong to find that such physician was fact testimony and not expert witness testimony. The court affirmed the defense verdict.

UNDER THE UNIQUE FACTS OF THIS CASE, PLAINTIFFS DID NOT STATE A CAUSE OF ACTION AGAINST THE SECURITY COMPANY EMPLOYER OF THE PULSE NIGHTCLUB SHOOTER.

Abad v. G4S Security Solutions, 45 Fla. L Weekly D770 (Fla. 4th DCA April 01, 2020):

In 2016, a man entered the Pulse Nightclub in Orlando, killed forty-nine people, and wounded fifty-three others. At the time of the mass murder, the shooter was employed by G4S as a Customs Protection Officer.

Prior to employing and training him, G4S knew that the shooter had been dismissed from a corrections officer training class just months before, because he had suggested that he would bring a gun to class, and alluded to the mass shooting at the Virginia Tech Campus which had just happened.

His position required him to carry a firearm and obtain a class G gun license. To assist with that license, G4S then submitted a fraudulent psychological evaluation of the shooter. It also provided him with twenty-eight hours of training, including eight hours of firearms training.

During the shooter’s ten years of employment, G4S was put on notice that the shooter was unstable and dangerous, and had expressed a desire to committee acts of mass murders against members of the general public, especially against the LGBT community.

Despite its knowledge of these things, G4S did not have the shooter undergo a psychological evaluation before they allowed him to work as an armed security guard.

Two weeks before the massacre, the shooter attempted to purchase body armor and ammunition from a licensed gun dealer and was turned away. He procured it weeks later.

In the Complaints, the Plaintiffs alleged a duty against the security company to make an appropriate investigation of their prospective employee, and to use due care in hiring them, and providing them with firearm training and/or maintaining their class G firearms licenses.

Plaintiffs asserted that they were owed a legal duty because they were in the foreseeable zone of risk created by the security company, when it hired the shooter as an armed guard despite knowing that he wanted to copy the Virginia Tech shooting. Defendant then trained this man to be an expert marksman, and ignored his disturbing and threatening behavior on the job, and even assisted him in fraudulently obtaining a gun license which helped him procure the weapons he used in the shooting.

Duty is always a question of law. Plaintiffs asserted that the unique facts of this case created a foreseeable zone of risk to the general public.

However, the defendant argued that the shooter was an individual who had free will, was outside of its control, and who committed these heinous crimes on his own time with his own weapons and resources.

In order for there to be a duty for the misconduct of a third party, there must be an exception to the general rule that a person or entity generally has no legal duty to prevent such misconduct.

The first exception is when there is a special relationship between the defendant, and the person whose behavior needs to be controlled or the person who is a foreseeable victim of such conduct. The second exception is when the defendant is in actual or constructive control of the instrumentality, the premises, or the tortfeasor.

Because these Plaintiffs were unable to meet either of these exceptions, and because the negative public policy implications of imposing liability without any spatial or temporal limits were too great, the court affirmed the trial judge’s dismissal of the plaintiff’s claim.