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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 42

CASES FROM THE WEEK OCTOBER 23, 2020

COURT REVERSED ORDER GRANTING PLAINTIFF A NEW TRIAL AFTER THE TRIAL JUDGE LIMITED VOIR DIRE TO ONE HOUR—THERE IS NO BRIGHT LINE RULE ABOUT LIMITING VOIR DIRE.

Tallahassee Housing Authority v. Prather, 45 Fla. L Weekly D2323 (Fla. 1st DCA October 13, 2020):

Plaintiff was injured in a slip and fall. The parties agreed to three hours of voir dire examination for each side in their pretrial stipulation.

At the beginning of jury selection, the trial judge advised the parties he was limiting voir dire to only one hour per side, noting that the case was not one needing “all day to pick a jury.” Plaintiff’s counsel objected, asked sixty-eight minutes worth of questions, and at the end of his questioning, did not ask for more time.

The jury reached a defense verdict. The plaintiff then moved for a new trial based upon the Fourth District’s decision in Carver v. Niedermayer, 920 So.2d 123 (Fla. 4th DCA 2006), which the trial court believed compelled the granting of a new trial.

In Carver, the court advised plaintiff’s counsel at the beginning of the jury selection that he would limit counsel’s questioning to a total of thirty minutes. Counsel initially objected that he needed more time to explore prospective juror’s feelings about personal injury lawsuits, and pointed out that the allotted time would only amount to 90 seconds per juror.

After several prospective jurors said they were nurses, counsel objected that he needed more time to conduct sufficient questioning and the court gave him forty-five more minutes.

The appellate court reversed finding the trial court abused its discretion in limiting voir dire because the time limit imposed was arbitrary, counsel only had two to three minutes per juror, and there was no showing that counsel’s questioning was repetitive or cumulative. Also, the court’s limitation deprived the attorney of a fair opportunity to identify prospective jurors for challenge.

In this case, the court distinguished Carver because while plaintiff’s counsel did initially object to the time limit, counsel did not repeatedly object as the attorney in Carver did. Instead, plaintiff’s counsel agreed to wrap up his questioning without asking for more time or explaining why more time was needed.

The First District stated that Carver does not create a bright-line rule about limiting voir dire. Instead, it enforces the general theory that control of voir dire is largely within the trial court’s discretion unless a party demonstrates an abuse of that discretion.

The court reversed the decision to grant a new trial based on the incorrect reading of Carver, and concluded that the plaintiff failed to demonstrate he was prejudiced by the voir dire time limit.

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TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN GRANTING PLAINTIFF’S MOTION TO AMEND FOR PUNITIVE DAMAGES IN A NURSING HOME CASE.

East Bay NC, v. Reddish, 45 Fla. L Weekly D2334 (Fla. 2nd DCA October 14, 2020):

The plaintiff moved to amend to add a claim for punitive damages under §400.0237 in a nursing home case. The trial court’s order stated that plaintiff satisfied the standard for pleading a claim for punitive damages pursuant to §400.0237 and Rule 1.190(f).

§400.0237(1)(b) requires trial courts to conduct a hearing and determine whether the plaintiff has presented sufficient admissible evidence to ensure that there is a reasonable basis to believe that the claimant will be able to demonstrate by clear and convincing evidence that the recovery of punitive damages is warranted at trial. In making that determination, the trial court’s order must identify the admissible evidence proffered by the plaintiff, and/or articulate on the record how the evidence supports a reasonable basis by clear and convincing evidence that recovery of punitive damages is warranted.

In this case, while the trial court conducted a hearing, it did not mention the admissible evidence supporting the claim for punitive damages. Its order granting the motion also failed to cite the correct statutory standard of proof, and failed to identify any admissible evidence considered to constitute a “reasonable basis” for recovery of punitive damages under §400.0237(1)(b). These failings led the court to quash the amendment containing the claim for punitive damages.

NO WORKERS’ COMPENSATION IMMUNITY FOR ELECTRIC COMPANY BASED ON THE STATUTORY EMPLOYER RELATIONSHIP, WHEN THE CONTRACT WITH THE INJURED VICTIMS’ EMPLOYER DID NOT SHOW THAT IT HAD SUBLET ANY PART OF THE CONTRACT IT HAD ENTERED INTO WITH A THIRD PARTY.

Tampa Electric Co, v. Gansner, 45 Fla. L Weekly D2358 (Fla. 2nd DCA October 16, 2020):

Tampa Electric, a public utility, owned an electrical generating facility in Hillsboro County. The injured victims were employees of Zachry Industrial Inc, an entity with whom Tampa Electric had contracted to provide maintenance work at the electrical generating facility it owned.

When the two workers were significantly injured and sued Tampa Electric, Tampa Electric raised workers’ compensation immunity. For the purposes of §440.10(1)(b), Tampa Electric would be entitled to workers’ compensation immunity as a statutory employer if it were considered a “contractor” that “sublet any part” of its “contract work” to the plantiffs’ employer as the subcontractor. To be considered a contractor, Tampa Electric’s “primary obligation in performing a job or providing a service must arise out of a contract.”

The undisputed facts showed that Tampa Electric had not sublet part of a contract with a third party. Instead, it asserted that there was an implied contractual obligation arising out of the tariff it had with its customers to supply them with electricity.

However, there is not a statutory employer relationship simply because a party enters into a contract with another that contributes to or facilitates work under a separate contract.

Tampa Electric’s “contract work” with its customers under the tariff did not include the maintenance of its electrical generating equipment at its facilities.

Here, Tampa Electric’s obligation to maintain its equipment arose purely out of an administrative regulation, and was not an obligation that it could “sublet” to a third party for the purposes of section §440.10(1)(b) absent a concomitant contractual obligation. As such, the court ruled the plaintiffs’ case could proceed against Tampa Electric because there was no workers’ compensation immunity to protect it.