A tragedy with no duty

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 31

CASES FROM THE WEEK AUGUST 7, 2020

THE TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT FINDING IT DID NOT CREATE A “FORESEEABLE ZONE OF RISK”—NO ABUSE OF DISCRETION IN STRIKING EXPERT’S AFFIDAVIT TO THE EXTENT THAT IT CONTAINED THE EXPERT’S OWN LEGAL OPINION REGARDING DUTY.

Luckman v. Wills, 45 Fla. L Weekly D1809 (Fla. 3rd DCA July 29, 2020):

The decedent in this wrongful death case was a guest at the Cheeca Lodge in Islamorada. The Cheeca Lodge offered guests a complimentary shuttle service to destinations within two miles of the resort. It also provided a “golf cart service” to take guests around the property. While the golf carts were prohibited from traveling on public roads beyond the property, they were allowed to cross the adjacent road, Old Highway 1 to pick up and drop off guests. A grocery store was located on that road.

An employee of the Cheeca Lodge took the decedent at his request in a golf cart to The Trading Post. There was no evidence in the record to support whether or not the decedent had sought to use the shuttle service. Consistent with the golf cart policy, the employee drove the decedent across Old Highway 1 and stopped about 20 feet from US 1. After the decedent exited the golf cart and was waiting to cross U.S. 1 on foot, he was struck by a vehicle, and ultimately died.

Plaintiff asserted that the Cheeca Lodge undertook a duty to transport the decedent to The Trading Post (a grocery store) in a reasonably safe manner, and should have warned him about the dangers of crossing U.S. 1. The Cheeca Lodge defended, arguing that its conduct did not create a foreseeable zone of risk, its policy of transporting guests did not include or establish a legal duty to transport guests to The Trading Post by golf cart, it did not breach any duty it owed to the decedent, and the danger of crossing the busy street at night, was an open and obvious danger.

Plaintiff filed an affidavit of Rick Swope who was retained as an expert in the field of accident reconstruction and forensic engineering. He attested that the Cheeca Lodge had greater knowledge of the dangers involved, hada duty to warn, and that it failed to use reasonable care.

At the hearing on summary judgment, the defendant argued that the decedent was not on its property when the accident occurred, and that it did not take the decedent onto U.S. 1. It further argued that it has no business relationship with The Trading Post. The trial court struck the expert’s affidavit, and subsequently granted the defendant’s motion for summary judgment.

Even in viewing the record in a light most favorable to the decedent, the appellate court found the defendant had not created a foreseeable zone of risk by dropping the decedent off on the east side of U.S. 1. The court observed that the Cheeca Lodge had safely transported the decedent to the edge of the road in the golf cart, and did not undertake to transport him beyond the golf cart’s allowable limits. Once the decedent voluntarily disembarked from the golf cart, the defendant no longer owed a duty of care.

Additionally, there was no error in striking the legal conclusions in the expert’s affidavit. While the affidavit contained permissible opinions regarding the defendant’s greater knowledge of dangers about crossing the road, and its failure to act reasonably in transporting the decedent, the expert’s opinions also contained his own legal opinion regarding the duty of care the defendant owed to the decedent. To the extent the affidavit opined on legal issues that were entirely within the province of the trial court, the trial court did not abuse its discretion in striking it, because the existence of legal duty is a conclusion of law that is outside the scope of expert opinion.

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NO ERROR IN DENYING FOREIGN DEFENDANTS’ MOTION TO DISMISS BASED ON FORUM NON-CONVENIENS—DEFENDANTS FAILED TO SHOW THAT THEIR INTEREST OUTWEIGHED THE STRONG PRESUMPTION IN FAVOR OF THE PLAINTIFF’S FORUM CHOICE.

Palace Resorts Travel, Inc., v. Flynn, 45 Fla. L Weekly D1808 (Fla. 3rd DCA July 29, 2020):

The plaintiff, a United States citizen but non-Florida resident, was injured at a Mexican resort operated by Palace Resorts. Plaintiff filed suit in Miami Dade County. Two of the four Palace Resorts defendants were Delaware corporations domiciled in Florida. The trial court found that Palace Resorts conducted business in the US, marketing potential US customers of the Mexican resort.

In denying the motion to dismiss, the trial court found the Palace Resorts defendants “failed in their high burden of showing that their interest outweighed the strong presumption in favor of [plaintiff’s] forum choice.” Further, the trial court weighed the public interest factors in favor of litigating in Mexico versus Florida, and found that they did not tip the balance in favor of Mexico to defeat the presumption of plaintiff’s choice of forum.

TRIAL COURT ERRED IN SUMMARILY DENYING REQUEST OF COSTS WHERE REQUESTING PARTIES HAD RECOVERED JUDGMENT IN THEIR FAVOR.

Roberts v. Third Palm LLC, 45 Fla. L Weekly D1825 (Fla. 4th DCA July 29, 2020):

A party recovering judgment shall recover all of his or her legal costs pursuant to §57.041(1). Where costs are sought based upon that section, a trial court has no discretion to deny the party obtaining judgment its lawful costs (but it does have discretion with respect to the amount and types of costs that are appropriate in the action). The court reversed the trial court’s finding there was no entitlement to costs, and remanded for an evidentiary hearing on the reasonableness of them.