Score one for the punies!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 14

APRIL 5, 2024

TRIAL COURT PROPERTLY ALLOWED PLAINTIFF TO AMEND HIS COMPLAINT TO STATE A CLAIM FOR PUNITIVE DAMAGES ON THE BASIS THAT THE DRIVER WAS INTOXICATED — THE RECORD CONFIRMED THAT THE TRIAL COURT CONSIDERED AND WEIGHED EVIDENCE OFFERED BY THE PARTIES AND PERFORMED ITS GATEKEEPING FUNCTION, BEFORE CONCLUDING THAT THE PLAINTIFF PROVIDED A REASONABLE EVIDENTIARY BASIS FOR PUNITIVE DAMAGES

Gattorno v. Souto, 49 Fla. L. Weekly D678 (Fla. 3rd DCA Mar. 27, 2024):

In what seems to be the first personal injury case allowing a punitive damages proffer since the Florida Supreme Court amended the non-final appeal rule to allow these appeals, the court affirmed the trial court’s ruling because the defendant driver was intoxicated when she struck the plaintiff with her car.

The proffer included deposition testimony from four people and addressed how the driver was at a bar before the crash, was there until 2 a.m., and it contained various snippets about the number of drinks that the driver had.

The court found that the record confirmed that the trial court considered and weighed the evidence offered by the parties, acted as a factfinder, and performed its gatekeeping role before ruling that the plaintiff could seek punitive damages. It rejected the defendants’ suggestion that evidence of intoxication while driving does not provide the requisite “reasonable basis” for recovery of punitive damages and affirmed that the proffered evidence supported that conclusion.

NO ERROR IN DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES — ALLEGATIONS IN THE COMPLAINT DID NOT RISE TO THE LEVEL OF GROSS NEGLIGENCE AND EVEN IF THEY HAD, THE PLAINTIFF FAILED TO MAKE A REASONABLE SHOWING OF A REASONABLE BASIS FOR THE RECOVERY OF PUNITIVE DAMAGES AS REQUIRED BY SECTION 768.72

Crump v. American Multi-Cinema, 49 Fla. L. Weekly D692 (Fla. 5th DCA Mar. 28, 2024):

Back to the status quo on punitive damages proffer as of late, the court in this case affirmed the denial of punitive damages.

Here, the plaintiff and her friend went to the movies to see a popular movie, and after someone in the parking lot fired a gun, causing 300 to 400 people to flee into the already crowded movie theater, a theater employee started shouting that everyone needed to leave due to an emergency (while the lights were off, and the movie was running). People were running and screaming to get out of the theater. Someone else screamed that there was an active shooter. In the chaos, the plaintiff sustained injuries and sued the theater.

There was testimony that the employee’s conduct violated the theater’s policy. The plaintiff moved to add a claim for punitive damages based on the theater’s gross negligence. The theater filed several depositions in response.

Punitive damages are only permissible when, based on clear and convincing evidence, the trier of fact finds that the defendant was personally guilty of intentional misconduct or gross negligence. This burden, according to the court, is “not a modest one.” The plaintiff must proffer that the alleged negligence reached a level akin to that needed to sustain a conviction for criminal manslaughter.

The plaintiff failed to meet that burden in this case. The allegations did not support that the conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the plaintiff’s life, safety, or her rights. Even if the plaintiff’s complaint was legally sufficient on this point, the plaintiff failed to make a reasonable showing of a reasonable basis for the recovery of punitive damages.

As to any claim for the theater’s direct liability for punitive damages because of its alleged failure to adequately train its employees, there was no reasonable evidentiary basis for a jury to conclude that the theater itself engaged in conduct that constituted gross negligence and contributed to the loss or damage suffered by the plaintiff.

While the employees were alleged to have violated the theater’s policies, there was not adequate evidence proffered from which a jury could have a reasonable basis to award punitive damages against the theater for its own negligence.

As to a claim for vicarious liability, the actions of the theater’s employees at the time after the shots were fired also did not rise to the level of gross negligence, thus failing to meet the preliminary threshold.

TRIAL COURT ERRED IN ADMITTING HARMFUL HEARSAY TESTIMONY FROM THE DECEDENT’S SONS IN A TOBACCO TRIAL

Philip Morris v. Jordan, 49 Fla. L. Weekly D670 (Fla. 3rd DCA Mar. 27, 2024):

The decedent’s children filed a wrongful death suit after she died from lung cancer. During trial and over objection, one of the sons relayed a conversation he had had with his mother, where she expressed how angry and upset she was with the defendant tobacco company. As he relayed, she was upset because the company had long represented that smoking filtered cigarettes would filter out the” bad stuff” and keep her safe. The son also testified that she was angry both because the tobacco company had lied to her, and because she was dying.

On appeal, the defendant asserted those statements were inadmissible hearsay, because they were backward-looking, and not offered for the purpose of showing the decedent’s state of mind.

Section 90.803(3)(a) says that statements of a declarant’s then-existing state of mind are admissible to prove or explain the declarant’s subsequent conduct or to prove the declarant’s state of mind at the time that the statement was made or at any other time, but only when such a state is at issue in the action. There is an exception for after-the-fact statements, but only if those statements recount observations made previously.

The court explained that the statements made here were not offered to establish why the decedent was smoking filtered cigarettes or her reasoning for continuing to do so. Instead, they were “after-the-fact” statements about why she had smoked in the past; not statements to explain her existing state of mind or subsequent conduct.

After finding that the statements were impermissible hearsay, the court then concluded that the error in admitting them was not harmless. The test for harmless error requires that the beneficiary of the error prove that there is no reasonable possibility that the error complained of did not contribute to the verdict.

In this case, where the central theory was that the tobacco companies deceived the plaintiff into believing that smoking filtered cigarettes was safer than smoking non-filtered cigarettes, made the hearsay statement central to the plaintiff’s case (reiterated in closing arguments) and the plaintiff could not show that there was no reasonable possibility that the testimony did not contribute to the verdict.