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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 16

APRIL 19, 2024

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION FOR BLANKET PROTECTIVE ORDER–PARTY MAY DEPOSE ATTORNEY AND OTHER PARTY MAY MAKE SPECIFIC PRIVILEGE OBJECTIONS DURING THE DEPOSITION

Allstate v. Brent N. Huber, Inc., 49 Fla. L. Weekly D818 (Fla. 5th DCA Apr. 12, 2024):

A party wanted to depose Allstate’s corporate litigation counsel, which the trial court allowed. Allstate petitioned for certiorari.

The court reminded us that the rules of civil procedure do not prohibit the deposition of an attorney simply because he or she is an attorney, and protective orders completely prohibiting a deposition should rarely be granted absent extraordinary circumstances.

The mere request for the deposition of a party’s attorney can create good cause for the party opposing the deposition to seek a protective order pursuant to Rule 1.280(c). However, when seeking relief, a party cannot make a general, blanket claim of privilege.

Accordingly, the court denied Allstate’s request that it quash the order. As the trial court ruled, during the deposition Allstate would be permitted to make objections to specific questions if necessary. Then, the trial court will review the questions and objections, making specific findings to allow for meaningful appellate review.

TRIAL COURT UPHELD SUMMARY JUDGMENT ENTERED FOR WAL-MART ON A CASE WHERE THE COURT FOUND THAT WAL-MART HAD NOT CREATED A REASONABLY FORESEEABLE ZONE OF RISK BY ITS EMPLOYEES’ ACTIONS

Johnson v. Walmart Stores, 49 Fla. L. Weekly D824 (Fla. 5th DCA Apr. 12, 2024):

The plaintiff appealed a final summary judgment entered in favor of Wal-Mart, after alleging that Wal-Mart employees were negligent when they confronted and pursued shoplifters, causing the shoplifters to flee and injure him.

The evidence was that a mad and a woman came to Wal-Mart, and store employees observed them shoplifting as they placed expensive electronic merchandise in old Wal-Mart shopping bags. A loss prevention employee monitored the two and notified the self-checkout associate.

While one of the shoplifters continued his shoplifting efforts, the other left the store, covering her license plate with a trash bag and pulling her car up near the store exit. The shoplifter still inside the store took his shopping cart through the self-checkout area, and when he was approached, he jumped into the getaway car telling the co-shoplifter driver to “go, go, go.”

Wal-Mart employees either shouted for someone to call the police or indicated the police had been called. They then walked out of the store onto the sidewalk with the hope of capturing a picture of the getaway car’s license tag. There was no evidence that any Wal-Mart employee attempted to apprehend the shoplifter after he fled.

The plaintiff entered the store while this was all going on, noticed the commotion, left the store to avoid it, and was then unfortunately hit by the getaway car.

The plaintiff introduced an expert who testified that calling out for the police increases a shoplifter’s fear of being apprehended and the likelihood that he/she would try to flee. Although the expert conceded that the shoplifter was already fleeing before the police were called, he said he would advise against hollering “call the police” because that’s like adding “fuel on fire.”

When considering whether the general facts established a duty, the court said its focus was on whether the defendant’s conduct foreseeably created a broader “zone of risk” that posed a general threat of harm to others. This requirement of reasonable general foresight is at the core of the duty element. To establish a duty, a “zone of risk” created by a defendant’s conduct must have been reasonably foreseeable, not just possible.

The court noted there were two cases involving whether a shopkeeper has a duty to protect patrons from a fleeing shoplifter. In both cases, the court concluded there was none.

The court then looked to whether Wal-Mart t’s employees created a reasonably foreseeable “zone of risk” by calling out for the police. The court again concluded that that was not done. The court said it was not convinced that escalating an encounter with a shoplifter created a foreseeable “zone of risk,” and that nothing about the internal policies and procedures were important to the analysis of Wal-Mart’s legal duty in this instance.

In most cases, whether a legal duty exists will not be in dispute. When it is, a party’s internal policies alone will not establish that the conduct in question created a foreseeable “zone of risk.”

Even considering those policies, the question of duty remains one of law, and at minimum, an internal rule is not controlling on a court’s analysis of whether a legal duty exists.

Because the court found that the trial court correctly entered final summary judgment because Wal-Mart’s conduct did not create a reasonably foreseeable zone of risk, Wal-Mart thus had no legal duty to protect the plaintiff from the fleeing shoplifters.

One judge wrote a vigorous dissent, explaining that courts should look at the entire record before deciding a legal question such as one of duty, and disputed the majority’s conclusion that none of Wal-Mart’s actions escalating the situation, created a legal duty.