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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 37

CASES FROM THE WEEK SEPTEMBER 17, 2021

TRIAL COURT DID NOT ERR IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT WHERE THE PLAINTIFF FAILED TO ESTABLISH THAT THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION – FACT THAT DISCOVERY WAS ONGOING DID NOT CHANGE THE RESULT BECAUSE COUNSEL FAILED TO FILE A WRITTEN MOTION FOR CONTINUANCE OF THE SUMMARY JUDGMENT HEARING, OR AN AFFIDAVIT TO OPPOSE IT BASED ON A NEED TO CONDUCT ADDITIONAL DISCOVERY

De Los Angeles v. Winn Dixie, 46 Fla. L. Weekly D1986 (Fla. 3rd DCA September 8, 2021):

The plaintiff slipped on detergent at Winn Dixie, describing during her deposition that the liquid was clear, slippery, light blue, not dirty, and that there were no footprints in it. Plaintiff had no knowledge as to how long the liquid detergent had been on the floor before she fell, but testified that it had have been there at least three to five minutes, because that was how long she was in the aisle alone before the incident occurred. She also testified that she had no knowledge of whether any Winn Dixie employees were aware that there was liquid on the floor.

An open bottle of detergent was found on the shelf near where she fell with the cap next to the bottle and the bottle standing upright. However, there was no leaking or dripping.

The court affirmed entry of summary judgment. It explained that there were no genuine issues of material fact because there were no facts evidencing the length of time the substance was on the floor, or lawfully imputing constructive notice to the defendant. Section 768.0755 requires proof of a breach of each element against an owner of an establishment where a business invitee slips and falls on a transitory substance.

The plaintiff did argue that summary judgment was premature because discovery was ongoing. However, because no motion for continuance or an affidavit was filed stating the need to continue the hearing to conduct additional discovery, the court affirmed the entry of summary judgment.

G4S TAKES ITS LICKS AGAIN

G4S Secure Solutions v. Publix, 46 Fla. L. Weekly D1987 (Fla. 3rd DCA September 8, 2021):

In another appellate blow to G4S, the court dismissed its petition seeking certiorari review for lack of jurisdiction, finding that it failed to show that the order under review denying certain discovery without prejudice created irreparable harm (a condition precedent to invoking certiorari jurisdiction).

The court suggested that the trial court could possibly conduct an in-camera review at a point closer to the trial date (the date had still not yet been set), but that certiorari was rather premature.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL ON CLAIM THAT IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THE FACE OF THE CONFLICTING EVIDENCE AT TRIAL

Alvarez v. Acosta, 46 Fla. L. Weekly D1986 (Fla. 3rd DCA September 8, 2021):

The jury was presented with conflicting evidence in a case where a car collided with a motorcycle resulting in a fatal crash. While the driver did make certain admissions, which were read to the jury, the jury still found she did not cause the accident.

When there is conflicting evidence presented at trial, and the jury’s verdict is the product of weighing that evidence to resolve the conflicts, the trial court does not abuse its discretion by denying a motion for a new trial based on a manifest weight argument.

TRIAL COURT ERRED IN RELYING ON MATTERS OUTSIDE THE FOUR CORNERS OF THE COMPLAINT TO GRANT THE DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRE-SUIT NOTICE REQUIREMENTS – FACTUAL QUESTIONS AS TO WHETHER A LEGAL RELATIONSHIP EXISTED BETWEEN THE DEFENDANT DOCTOR AND THE MEDICAL CENTER SERVED WITH THE PRE-SUIT NOTICE, AND WHETHER THE PRE-SUIT NOTICE ACCOMPANIED THE AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS, WERE MATTERS BEYOND THE FOUR CORNERS OF THE COMPLAINT NOT RESOLVABLE ON A MOTION TO DISMISS

Rhiner v. Koyama, 46 Fla. L. Weekly D1989 (Fla. 4th DCA September 8, 2021):

Plaintiff suffered lacerations and a fractured jaw after suffering an attack while in prison. He was transferred to Longwood Regional Medical Center where oral surgery was performed.

The plaintiff sued Longwood but did not sue the oral surgeon directly. The oral surgeon moved to dismiss for lack of pre-suit notice. The oral surgeon asserted he was not an employee of Longwood, but merely granted privileges to use the facility. The doctor also argued that the pre-suit notice was not accompanied by the authorization for the release of records, which also rendered the pre-suit notice void. The trial court dismissed the complaint.

The Fourth District reversed. It found the record revealed factual issues about the relationship between the oral surgeon and the hospital, and that the resolution of those issues required an analysis outside the four corners of the complaint.

TRIAL COURT ABUSED DISCRETION BY GRANTING THE PLAINTIFF AN ADDITUR FOR PAST AND FUTURE PAIN AND SUFFERING DAMAGES

Kocik v. Rodriguez, 46 Fla. L. Weekly D2000 (Fla. 4th DCA September 8, 2021):

Plaintiff obtained a jury verdict awarding him damages against the defendant's homeowner for injuries that the plaintiff suffered while working on the defendant’s home renovation project. The plaintiff presented evidence that the defendant decided to conduct a home renovation project without hiring a licensed contractor and without obtaining a required building permit. The defendant instead hired an unlicensed contractor, and then left the country without providing any qualified worksite supervision.

During the project, the plaintiff was enlisted as a day laborer to remove a wall and install a ceiling support beam. When the plaintiff went to remove an electrical conduit after being instructed to do so, he was erroneously told the power was off. The plaintiff received a shock that caused him to fall off the ladder and hit the floor, causing him to fracture his femur.

The plaintiff underwent surgery, was in the hospital for three days, and then received physical therapy over a three-month period. The surgeon testified that the surgery had been a success, and while he had carved out the man’s femur and replaced it with a rod and screws, he said the only future treatment that the plaintiff might require was a minor procedure to remove the screws. The plaintiff testified he continued to have pain for nearly six years after the incident but admitted that he had resumed construction work after completing his physical therapy.

The jury found the plaintiff 55% at fault and the defendant 45% at fault for the injuries. It awarded the plaintiff $81,000.00 for his combined past and future medical bills, and $25,000.00 for combined past and future pain and suffering. The verdict form had not asked the jury to apportion between past and future damages.

The plaintiff requested an additur of $250,000 for his pain and suffering. The circuit court awarded an additur of $225,000.

The Fourth District reversed. It concluded that the trial judge had acted as a seventh juror. It distinguished cases where additurs had been successfully upheld for pain and suffering awards because those cases contained evidence demonstrating life-long injuries and lifestyle changes.

In this case, the court said that the jury had weighed conflicting evidence regarding the plaintiff’s past and future pain and suffering, namely the plaintiff’s own testimony that his pain had diminished over time, that he had resumed construction work, and had resumed his fishing hobby, and that testimony, coupled with his orthopedic surgeon’s testimony that his surgery had been successful and that he would only need minor future treatment, supported the verdict. Thus, the court concluded the trial court abused its discretion in upsetting the verdict.

FOR VENUE PURPOSES, A TORT OCCURS IN THE COUNTY IN WHICH THE INJURY IS FIRST SUFFERED – ALSO, BEFORE MAKING A “CONVENIENCE” RULING ON VENUE, THE COURT MUST FIRST DETERMINE WHETHER THE CASE COULD HAVE ORIGINALLY BEEN FILED IN THE REQUESTED FORUM

R. J. Reynolds v. Frost, 46 Fla. L. Weekly D2010 (Fla. 5th DCA September 10, 2021):

R. J. Reynolds appealed an order transferring this tobacco case from Putnam County to Alachua County. The plaintiff brought the case for the death of her dad in Putnam County because her dad had continuously resided from 1972 until his death in 1995. He experienced his first symptoms of congestion in his chest and coughing up blood, and a chest x-ray at the Putnam Emergency Room showed fullness in his lung suggesting it was unlikely that he had lung cancer.

After further evaluation, a pulmonary specialist in Alachua County was the one who actually diagnosed the decedent with lung cancer. He passed away six months later in Putnam County.

In 2020, the plaintiff moved to transfer the venue to Alachua County, asserting that the physicians there provided all of the decedent’s medical care and treatment and that several potential witnesses lived or worked in Alachua County. The motion was accompanied by affidavits.

The court found that Alachua County was never an appropriate venue. It then explained that before making a finding regarding the convenience of parties under §47.122, Fla. Stat., the court must first determine whether the case could have originally been filed in the requested forum.

For purposes of venue, a tort accrues in the county where the plaintiff first suffers the injury. Here, there was no dispute that the decedent first suffered early smoking-related injuries in Putnam County; although at the time he was unaware it was related to his cigarette smoking.

The court said that because the first injuries were certainly not in Alachua County, Alachua was not a venue where the case could have been brought initially, and thus it was an error to transfer the case based on convenience.

CERTIORARI GRANTED TO QUASH ORDER GRANTING RELIEF TO AMEND FOR PUNITIVE DAMAGES – WHILE SUCH AN ORDER IS TYPICALLY NOT REVIEWABLE BY CERTIORARI, A FACIALLY INSUFFICIENT PLEADING FOR PUNITIVE DAMAGES WILL LEAD TO INTRUSIVE FINANCIAL DISCOVERY THAT IS IRREMEDIABLE “CAT OUT OF THE BAG” HARM, AND THEREFORE REVIEWABLE BY CERT

Keen v. Jennings, 46 Fla. L. Weekly D2013 (Fla. 5th DCA September 10, 2021):

In this case, brought by a real estate broker and agent, the plaintiffs moved to amend their complaint to assert a claim for punitive damages. The trial court granted the motion, entering an order stating simply that there was a reasonable basis for the recovery of punitive damages shown under § 768.72, Fla. Stat.

The court acknowledged that it lacked the authority to review a trial court’s determination where there has been a reasonable showing by evidence in the record that provides a reasonable basis for recovery of punitive damages. Instead, certiorari review in this instance is limited to addressing whether the trial court complied with all applicable requirements and analysis under §768.72, Fla. Stat., in granting leave to assert a punitive damages claim.

Before a trial court may address whether a party’s motion to amend and proffer of evidence has shown a reasonable evidentiary basis for the recovery of punitive damages, the court must first analyze whether the proposed amended complaint seeking punitive damages contains sufficient allegations to support such a claim.

In this complaint, there was a cause of action entitled “punitive damages.” That said, punitive damages are not a separate and distinct “cause of action.”

Additionally, none of the other five causes of action plaintiff pleaded actually sought an award of punitive damages, and none of the allegations contained in the one count upon which the plaintiffs based their claim for punitive damages were incorporated into any of the first five causes of action. As such, the fourth amended complaint about punitive damages was facially deficient.

While an order that erroneously denies dismissing a facially insufficient complaint is typically not reviewable by certiorari, the court concluded that the general rule could not apply to a facially insufficient pleading for punitive damages, because such an amendment enables the plaintiff to proceed forward with intrusive financial discovery. Becausethat would be otherwise impermissible and allow for certiorari review, the court granted the writ.

TRIAL COURT’S FAILURE TO MAKE FINDINGS OF FACT REGARDING A RULING ALLOWING AN AMENDMENT FOR PUNITIVE DAMAGES WAS A HARMLESS ERROR--SPECIFIC FINDINGS SIMPLY ENABLE THE APPELLATE COURT TO DETERMINE IF THE TRIAL COURT COMPLIED WITH THE PROCEDURAL REQUIREMENTS OF § 768.72

Omega Title Naples v. Butschky, 46 Fla. L. Weekly D2014 (Fla. 2nd DCA September 10, 2021):

The court cited two prior precedents where it held that when the trial court determines that a plaintiff presents sufficient evidence to support a claim for punitive damages, the trial court must identify the admissible evidence proffered by the plaintiff, either on the record within the order, and/or by articulating on the record how the evidence supports a reasonable basis to believe that the claimant will be able to demonstrate by clear and convincing evidence that recovery of punitive damages is warranted.

Here, neither the trial court’s oral and written orders made any such findings. Those omissions were harmless though because those findings were only necessary to demonstrate the court’s compliance with the procedural requirements of § 768.72.

Because this record showed that the trial judge had followed all of the applicable procedures and applied the correct standard, the failure to express the findings was harmless.