Duty v. Immunity

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 52

CASES FROM THE WEEK OF DECEMBER 27, 2019

WHEN A GOVERNMENTAL ENTITY HAS THE SAME COMMON LAW DUTY AS A PRIVATE PERSON, SOVEREIGN IMMUNITY IS INAPPLICABLE.

Sanchez v. Miami Dade County, 44 Fla. L Weekly S322 (Fla. December 19, 2019):

Plaintiff brought a negligent security claim against the County after he was shot and injured at a party hosted at one of the County’s parks. The Third District explained that the claim was predicated on the County’s alleged failure to allocate off duty police officers, and that because sovereign immunity protects a County’s policy and planning decisions about where to allocate limited police resources, ruled that sovereign immunity barred the action.

The court granted jurisdiction on the ground that the case conflicted with the Fourth District’s decision in City of Belle Glade v. Woodson, where the court had concluded that sovereign immunity could not shield the city from suit in a case where plaintiffs alleged the city failed to provide adequate security. The court specifically reasoned that sovereign immunity was not applicable, because the city had the same common law duty as a private person, to properly maintain and operate the property.

The Supreme Court relied on Wallace v. Dean, where it recognized that the duty analysis is conceptually distinct from a later inquiry regarding whether a governmental entity gets sovereign immunity. In tort law, the absence of a duty results in no liability, not immunity from suit. Conversely, sovereign immunity shields governments even when there might be a duty.

In the end, the court admonished that because plaintiff had failed to pursue the argument it was making on appeal in the trial court, it could not pursue it on appeal. The court noted that litigants may not rely on one line of argument in the trial court, and then pursue a different line in the appellate court because appellate review is limited to the specific grounds argued in the lower tribunal.

IN RE: AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.030.

44 Fla. L Weekly S325 (Fla. December 19, 2019):

Rule 9.030 now provides that district courts may review nonfinal orders as prescribed by Rule 9.130 and no longer limits the district courts' jurisdiction of nonfinal orders to those orders entered by circuit courts.

Now, authorized appeals of nonfinal orders in county court cases where the amount in controversy is greater the $15,000 may also be heard by the district courts.

PRESUIT AFFIDAVIT IN MED MAL CASE INSUFFICIENT ON CAUSATION-DISMISSAL OF CASE WITH PREJUDICE AFFIRMED.

Howell v. Balchunas, 44 Fla. L Weekly D2974 (Fla. 3rd DCA December 17, 2019):

In plaintiff’s presuit affidavit, a physician who practices diagnostic radiology averred that the defendant doctor had incorrectly interpreted the plaintiff’s CT angiogram. He opined that this failure was below the standard of care.

However, the affidavit then stated that there was merely a “reasonable basis” to believe that the misinterpreting of the study “could have led” the referring physician to miss the correct diagnosis “potentially leading to incorrect, improper, or no treatment” of a diagnosable condition.

The trial court found the affidavit failed to support the causation part of the claim.

Without an ounce of sugar coating, the court then wrote that medical malpractice plaintiffs “do not have the same common law right as victims of other types of negligence.” It stated that whether a claimant has satisfied the threshold requirements of the presuit notice investigation is an issue of law, and then agreed with the trial court that an injury that “could have” been caused by a medical professional’s action and “potentially” could have led to injury does not provide corroboration of reasonable grounds to believe that the negligence resulted in injury to the claimant. The court affirmed the dismissal of the plaintiff’s case (because of the statute of limitations had run).

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COMPLAINT AGAINST DEPUTY IN MARJORY STONEMAN DOUGLAS CASE SUFFICIENTLY PLEAD ALLEGATIONS WHICH, IF TRUE, WOULD PERMIT A REASONABLE TRIER FACT TO FIND THAT THE DEPUTY ACTED IN BAD FAITH, WITH MALICIOUS PURPOSE OR WITH WANTON AND WILLFUL DISREGARD OF HUMAN RIGHTS OR SAFETY.

Peterson v. Pollack, 44 Fla. L. Weekly D2983 (Fla. 4th DCA December 18, 2019):

In this case, brought against the deputy directly, the plaintiffs alleged that the deputy failed to immediately order a Code Red, failed to follow his active shooter training, failed to go into the building and failed to kill the killer.

In assessing the meaning of the phrases “in bad faith” or “with malicious purpose” or “in a manner exhibiting wanton and willful disregard of human rights or safety”, as those phrases are used in §768.28(9)(a), the court examined how other courts have interpreted them under Florida law.

“Bad faith”, the court explained, has been equated with the actual malice standard. “Malicious purpose” has been interpreted to mean conduct that was committed with ill- will, hatred, spite or evil intent. “Wanton and willful disregard of human rights or safety” has been interpreted as conduct much more reprehensible and unacceptable than mere intentional conduct.

In reviewing the case de novo, applying the definitions to the amended complaint, and reviewing all reasonable inferences in the favor of the plaintiffs, the court held it could foresee how a reasonable trier of fact could find that the deputy’s alleged conduct met the statutory standards in certain respects.

The court noted that it was worthwhile to remind parties that although the definitions of “bad faith”, and “with malicious purpose” appear to be synonymous, they are not synonymous with the phrase “in manner exhibiting wanton and willful disregard of human rights or safety”, and thus, a special interrogatory verdict for each phrase would be advisable at trial to avoid application of the two-issue rule.

ISSUE OF FACT PRECLUDED SUMMARY JUDGMENT ON EXCULPATORY CLAUSE IN GYM CONTRACT.

Savoia v. Fitness International, 44 Fla. L. Weekly D2991 (Fla. 4th DCA December 18, 2019):

The plaintiff slipped and fell in the gym’s bathroom. Plaintiff subsequently sued the gym for damages. The gym moved for summary judgment arguing that when plaintiff signed up for membership, he signed a contract with an exculpatory clause, waiving any such claim.

The contract was an electronic agreement, which was presented to him on a computer tablet. He was not shown a printed contract, and on his version, which was printed and placed in the record, the contract was three pages, with the bottom of the first page containing the signature block. The exculpatory clause, however, was on the second page. There was no mention of the exculpatory clause on the first page.

At his deposition, the plaintiff stated that some of the contract language was obscured by the pop up space for his signature, and testified that because his friends had already read the stuff, and because he believed it was basically just a financial agreement, it was ok to sign.

Florida does adheres the principle that a party has a duty to learn and know of the contents of a contract before signing it, and that one who signs the contract is presumed to know its contents. Also, a party to a written contract cannot defend against its enforcement on the ground that he signed it without reading it.

However, there are two exceptions to that rule: (1) a party can defend enforcement of a contract where he avers facts showing circumstances that prevented him from reading the paper; or (2), he can show he was induced by the statements of the other parties to desist from reading it.

Looking at these facts in the light more favorable to the plaintiff, there were genuine questions of fact as to whether the presentation of the release on the computer prevented the plaintiff from reading the paper. There were also questions about whether the plaintiff was induced by statements of other parties to desist from reading it.

Noting that whether the plaintiff would ultimately prevail following a trial was of no import at this stage of the proceedings, because genuine issues of material fact remained, the court ruled it had to reverse the entry of summary judgment (with one judge dissenting).

THE MEDICAL MALPRACTICE ARBITRATION STATUTE DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA CONSTITUTION.

Pool v. Defranko, 44 Fla. L. Weekly D2997 (Fla. 3rd DCA December 18, 2019):

The trial court evaluated the medical malpractice arbitration statute and found that §776.207(7)(k) and §776.209(4)(a) are unconstitutional as violative of the guarantees of equal protection in the Florida Constitution. As such, the court refused to reduce the jury’s verdict down to the cap amounts.

The Third District reversed. It relied on the University of Miami v. Echarte and Alvarez v. Lifemark Hospitals as cases upholding the constitutionality of the medical malpractice arbitration statute sections at issue.

The court distinguished the caps addressed by the Estate of McCall and North Broward Hospital v. Kalitan addressing §776.118, because they pertained to noneconomic damages in both wrongful death (McCall) and personal injury (Kalitan) cases.

Because the statute under review arose from the voluntary arbitration remedy that was not considered by those cases, and in light of the Florida Supreme Court precedent that already declared medical malpractice arbitration constitutional, the court reversed the trial court’s decision that the caps found in the voluntary arbitration statute were unconstitutional and in violation of equal protection. The court then remanded for entry of judgment in the capped amounts.

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FLORIDA LAW DOES NOT REQUIRE PRIVATE HOTELS TO POST LIFEGUARDS AT THEIR SWIMMING POOLS FOR THE PROTECTION OF THEIR GUESTS.

Kamal-Hashmat v. Loews Miami Beach, 44 Fla. L. Weekly D3005 (Fla. 3rd DCA December 18, 2019):

A man died at the hotel pool at the Loews in Miami Beach. The sole issue involved in the appeal was whether the trial court erred in instructing the jury as a matter of law that the hotel had no legal duty to post a professional lifeguard at its pool.

Plaintiff had argued that Florida Administrative Code Rule 64E-9.008, “Supervision and Safety” addresses public swimming pools and requirements for training and certification of lifeguards at such pools and that the authority for the rule originated in the public health provisions of §381.006(13) and chapter 514, imposing legal requirements for professional lifeguards if they are hired to supervise a private hotel swimming pool. However, nothing in those statutes or in that rule specify that a private hotel must hire such a lifeguard to supervise swimmers in the hotel pool.

The court also rejected the argument that case law imposes such a duty, finding that the plaintiff’s reliance on the “zone of risk” analysis in McCain was misplaced. No Florida court has found that a privately operated hotel swimming pool creates a foreseeable zone of risk (as did the misidentification of the location of an underground electrical cable found in McCain). The court affirmed the trial court’s ruling that there is no legal duty to post a lifeguard at the pool.

THE PLAIN LANGUAGE OF THE PIP STATUTE ALLOWS AN INSURER TO PAY 80% LESS THAN THE FEE SCHEDULE ALLOWS FOR IF IT IS IN THE CONTRACT.

Geico Indemnity v. Accident & Injury Clinic, Inc., 44 Fla. L. Weekly D3045 (Fla. 5th DCA December 20, 2019):

The PIP statute authorizes insurer to limit reimbursement to a provider for certain charges resulting from the rendering of care and services to an insured to 80% of the scheduled maximum charges when it provides an appropriate notice in its policy. See §627.736(5)(a)1.

This dispute arose when the provider sued Geico for paying less than 80% of the billed amount, which was less than the maximum listed in the policy’s schedule of fees and charges.

In looking at the plain language of the statute, the court concluded that the amount allowed under subparagraph 1 necessarily encompassed 80% of the applicable fee schedule option, meaning that if the billed amount was less than 80% of the fee schedule, the insurer could opt to pay the lower billed amount in full, as long as it gives notice of that in its policy.

TRIAL COURT SHOULD HAVE QUASHED SUBPOENA SERVED BY MAIL ON A NON-PARTY LOCATED OUTSIDE OF FLORIDA, WHERE THE SERVICE DID NOT COMPLY WITH THE FOREIGN STATE’S LAW AUTHORIZING SUCH SERVICE.

Kinsale Insurance Co. v. Murphy, 44 Fla. L. Weekly D3056 (Fla. 1st DCA December 23, 2019):

Plaintiffs sued their property insurer for breaching a contract regarding repairs of their home after suffering water damage. Plaintiffs’ insurer mailed a subpoena duces tecum without taking a deposition to the roofing company’s insurer in Virginia.

That insurer then filed a Motion to Quash and/or Motion for Protective Order arguing that the subpoena was improperly served because Virginia law required the appointment of a commissioner to issue the subpoena.

Reminding us that a Florida subpoena has no force outside of the state absent compliance with another state’s requirements for service of process, the trial court departed from the essential requirements of law by denying the Motion to Quash the subpoena served by mail, because it did not comply with Virginia law authorizing such service.