Let’s all stay in our lanes

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 18

APRIL 26, 2024

ERROR TO DENY LEGALLY SUFFICIENT MOTION TO DISQUALIFY JUDGE – JUDGE ABDICATED HIS POSITION OF NEUTRIALITY BY GIVING UNSOLICITED AND STRATEGICALLY BENEFICIAL LEGAL ADVICE TO THE DEFENDANT, AND THEN CONTINUED THE PROCEEDING WITHOUT THE DEFENDANT ASKING, SO THE DEFENDANT COULD ACT ON THE ADVISE

Torres v. Orlick, 49 Fla. L. Weekly D916 (Fla. Apr. 19, 2024):

The plaintiff obtained a clerk’s default against the defendant who moved to set it aside. The defendant’s counsel alleged excusable neglect, blaming his intake department for failing to diary the answer, but provided no sworn evidence of the failure via affidavit or otherwise.

The trial court set a hearing and the plaintiff argued that the defendant’s motion was legally insufficient because the motion was neither verified nor supported by an affidavit. The trial judge then interjected himself into the proceeding by continuing the matter without any request from the defendant, so defendant could procure and file supporting affidavits.

The trial judge’s actions here supported disqualification because he abdicated his position of neutrality, by giving unsolicited and strategically beneficial legal advice to the defendant. He then continued the proceeding without the defendant even asking. “Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.” The appellate court disqualified the trial judge.

RULINGS ON CONFIRMED ARBITRATIONS ARE NOW ALSO NON-FINAL APPEALS

In Re: Amendments to Florida Rule of Appellate Procedure, 49 Fla. L. Weekly S121 (May 2, 2024):

The Florida Supreme Court has now adopted a new subdivision to Rule 9.130; it is “(a)(3)(I).”

This new subdivision provides for an interlocutory review of non-final orders that confirm or deny confirmation of an arbitration award, or that modify, correct, or vacate one.

The subsection now contains both the previous section regarding the determination of entitlement of a party to arbitration (which already existed), and the new provision.

NO ERROR IN DENYING MOTION TO AMEND TO ASSERT CLAIM FOR PUNITIVE DAMAGES – EVIDENCE FAILED TO DEMONSTRATE THE REQUISITE STANDARD

Friedler v. Faena Hotels and Residences, LLC, 49 Fla. L. Weekly D902 (Fla. 3rd DCA Apr. 24, 2024):

The plaintiffs sued the defendant after one of them was injured in a fall in the spa at a hotel. The plaintiffs sought to add a count for punitive damages, based on defendant having authorized the installation of a type of marble in the spa that proved to be slippery.

On de novo review, the court concluded that the plaintiffs’ evidence did not rise to the level to seek punitive damages, when the record showed that the defendant after receiving results of the friction tests, failed to clean and seal the marble before its installation, or that it knew it had anything more dangerous there than the apparently slippery condition of a wet spa floor that it tried to mitigate by offering sandals to each customer.

The court found that the evidence did not demonstrate that the defendant’s conduct was so willful or wanton as to warrant the punishment of punitive damages, which is reserved for only the most egregious of cases.

NO ERROR IN DETERMINING AS A MATTER OF LAW THAT EMPLOYER WAS EQUITABLY ESTOPPED FROM PRESENTING A WORKER’S COMPENSATION IMMUNITY DEFENSE, WHEN THE EMPLOYER HAD PREVIOUSLY DENIED WORKERS COMPENSATION

Bottling Group, LLC v. Bastien, 49 Fla. L. Weekly D906 (Fla. 3rd DCA Apr. 24, 2024):

The plaintiff was employed at a Pepsi packaging facility and was seriously injured when a co-worker, disgruntled over union activities, shot him several times. The plaintiff was denied workers’ compensation benefits because the carrier deemed that it was not a compensable accident or injury, and concluded that the injuries were not sustained in the course and scope of his employment.

The plaintiff then sued the defendant. The defendant moved to dismiss, contending it was entitled to workers’ compensation immunity. Plaintiff argued that the defendant was equitably estopped from asserting immunity based on its denial of benefits.

The defendant then moved for partial summary judgment on the basis of the immunity. Plaintiff opposed, asserting that estoppel and the intentional tort exception precluded immunity.

On the eve of the summary judgment hearing, the plaintiff moved to amend his complaint to add another defendant. The trial court granted leave to amend. Neither defendant had answered the new complaint before the summary judgment hearing.

On appeal, the defendant asserted that the failure to plead estoppel in the plaintiff’s reply was fatal to the order granting summary judgment. The court was not persuaded, stating that at the time of the summary judgment hearing, the defendant had not yet answered the first amended complaint. Also, no continuance was sought, and the time for a reply was even ripe.

Moreover, the prior answer contained language denying that the injuries occurred within the course and scope of employment. Therefore, there was no obligation to file an avoidance.

Even though the court found that equitable estoppel is a fact-driven analysis, it did find it to be appropriate in this case and affirmed the summary judgment for the plaintiff.

NO ERROR IN ENTERING SUMMARY JUDGMENT IN SLIP AND FALL CASE WHERE PLAINTIFF COULD NOT PROVE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE SUBSTANCE THAT CAUSED HIS FALL

Duran v. Crab Shack, 49 Fla. L. Weekly D914 (Fla. 5th DCA Apr. 25, 2024):

The plaintiff went to lunch at the defendant’s restaurant on a busy Sunday afternoon. As he was leaving, he slipped and fell on something wet which he believed to be a “brownish” liquid. He fell several feet away from the kitchen door where servers were bringing drinks to patrons.

A regional director testified that he noticed the plaintiff as he entered the restaurant because he had a labored and extreme gait and estimated that the plaintiff fell approximately 12 ft from the kitchen door. The record made clear that the location was in a high traffic area heavily traversed by both customers and employees.

When the plaintiff’s friends realized he fell, they noticed drops of water on the floor. One testified that the water came from drinks on the servers’ trays because they were too full, and the other said that the plaintiff fell in a wet, greasy, and dirty area.

There was no evidence presented that the liquid on the floor was scuffed or dirty or had footprints through it. Neither the plaintiff nor his friends were able to testify how the substance on which he slipped got onto the floor, or how long it was present there.

The restaurant moved for summary judgment arguing the plaintiff was unable to meet his burden to establish that the restaurant had actual or constructive notice of the presence of the substance.

In this case, the plaintiff failed to provide either direct evidence about who or what caused the dangerous substance, and exactly when it happened or even circumstantial evidence to establish the dangerous condition was present for a long enough period of time to prove it.

While the plaintiff testified, he fell on something wet and brownish, the presence of a substance on the floor alone is not enough to establish constructive knowledge. Rather, because some substances may be colored or have other characteristics such as sliminess, there must be evidence in addition to the foreign substance –- a “plus” –- from which the jury may reasonably conclude the substance was present for a sufficient length of time. In trying to assess how long a substance has been sitting on the floor, courts look to several factors including evidence of footprints, prior track marks, changes in consistency or drying of the liquid.

The court noted that such evidence is precisely where the plaintiff’s claim of constructive knowledge failed. There was none of that in the record and thus not enough evidence to allow a jury to find the defendant had constructive knowledge of the liquid, necessitating affirmance of the summary judgment.