The Week In Torts – Cases from April 7, 2023
It’s not a feature film!
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 14
CASES FROM THE WEEK OF APRIL 7, 2023
TRIAL COURT ERRED IN ADMITTING PORTIONS OF A DASH CAM VIDEO THAT WERE RECORDED AFTER THE COLLISION BECAUSE THE CONDUCT OF THE DEFENDANT AFTER THE COLLISION HAD NO PROXIMATE OR CAUSAL RELATIONSHIP TO THE NEGLIGENCE – – ERROR TO ADMIT THE SOUNDTRACK FROM DASHCAM VIDEO.
FU LU Song and American Trucking Co. v. Jenkins, 48 Fla. L. Weekly D665 (Fla. 5th DCA Mar. 31, 2023):
The subject accident happened on I-95 when the defendant’s tractor trailer veered into the lane to its right, hitting the car ahead of him which had slowed down. To avoid the defendant’s truck, a car swerved and collided with a van in which the plaintiff was a passenger. The defendant’s truck did not collide with anything, and he did not stop at the accident scene. However, the accident sequence was captured on another vehicle’s dash camera.
The dashcam that had captured the collision belonged to a driver who was a short distance behind the truck driver, with one vehicle separating them. That driver drove in the same lane as the defendant and his truck was equipped with a forward facing dashcam that had an open microphone audio system.
The parties agreed that the first 48 seconds of the videotape’s visual silent images were relevant to show the weather and traffic conditions prior to the collision. They also showed the defendant’s and the plaintiff’s maneuvers, the collision, and the events soon after the collision.
However, after the first 48 seconds, the video does not depict anything related to the collision. The soundtrack captured all the plaintiff’s “wreck-focus comments” which began with a hose of excited utterances, including some cursing.
Ultimately, the trial court overruled all objections made by the defendants, and allowed the plaintiff to play the five-minute video with soundtrack, as well as shorter excerpts during various phases of the trial. The lengthy video led the plaintiff to argue that the defendant was found 100% at fault, with no apportionment to any other driver.
While the first 48 seconds of the silent dashcam video were clearly relevant, neither the rest of it, nor the soundtrack was. Defendants argued the court should have excluded the rest pursuant to §90.403, and the appellate court agreed.
Defendants also argued that the trial court erred in permitting the plaintiff to use a diagram that was part of the official traffic crash report, which showed the path of the defendant driver and the other drivers vehicle leading to the crash. The defendant’s object was that it was not to scale, and inaccurate in its depiction of events when compared to the video.
The plaintiff authenticated the accident diagram saying it appeared accurate to him.
The defendants objected to the diagram based on the accident report privilege found in section 316.066(4). The plaintiff pointed out that nobody proved the diagram was based on any statements, and thus it did not fall within the privilege. Defendants asked the court to find that the term “such report” in the statutory section refers to all parts of the report regardless of who prepared it. The trial court refused.
Given that the dashcam video was shown to the jury, even if the accident report privilege did not apply, the court found there was no need for the accident scene diagram as a demonstrative aid. It was not properly authenticated and generally unexplained, so the trial court erred in overruling the objections to admitting it into evidence.
As none of these errors were harmless the court reversed for a new trial.
GENUINE FACTUAL ISSUES REGARDING WHEN THE STATUTE OF LIMITATIONS BEGAN TO RUN REQUIRED REVERSAL OF A SUMMARY JUDGMENT IN A MEDICAL MALPRACTIC CASE.
Reyes v. Baptist Health South Florida, 48 Fla. L. Weekly D642 (Fla. 3rd DCA Mar. 29, 2023):
In this complex medical malpractice case, the plaintiffs alleged that their child was born in 2005 with a neurological injury, allegedly due to the negligent actions of the defendant. The mother was initially told that her baby was developing normally. Later, when symptoms developed, no professional informed her that medical malpractice could be to blame for the child’s developmental issues.
The mother claimed the first time she had knowledge of a reasonable possibility of malpractice was in 2012 when one of the child’s doctors recommended, she look into the details of the child’s birth as part of the child’s cerebral palsy diagnosis.
However, prior to the lawsuit being filed in 2013, after a 2012 doctor’s visit, the mother had filed a petition for an extension, along with a request for medical records, pursuant to the medical malpractice statue. That was done in 2008.
The hospital moved for summary judgment based on those facts, which the trial court granted. It did so based on that 2008 petition, finding the plaintiff had knowledge of the reasonable possibility of medical malpractice back to that time.
However, because the plaintiff had not received a medical opinion suggesting medical malpractice had occurred until many years later, that created a genuine issue of material fact precluding summary judgment.
SUMMARY JUDGMENT PROPERLY GRANTED IN FAVOR OF DEFENDANT BASED ON DETERMINATION THAT ACTION WAS BARRED BY STATUTE OF REPOSE – – REPOSE WAS NOT TOLLED UNDER SECTION 95.031(2)(d) AS PLAINTIFF ALLEGED, BECAUSE THERE WAS NO CONCEALMENT OF A DEFECT BY A “MANAGING AGENT” (ONLY FROM LOW LEVEL AND MID-LEVEL MANAGERS).
Halum v. ZF Passive Safety Systems, 48 Fla. L. Weekly D647 (Fla. 4th DCA Mar. 29, 2023):
The plaintiffs purchased their Lincoln Navigator in June of 2004. The vehicle had been assembled and sold to the first user in June of 2001 and used a seatbelt buckle that was designed, manufactured, and constructed by the manufacturer.
In 2015, the plaintiff was ejected from his vehicle and suffered injuries allegedly due to a defect in the seatbelt buckle.
The manufacturer moved for summary judgment based on statute of repose. Because the accident had occurred more than 10 years after the initial delivery of the vehicle to its first purchaser, the trial court granted it. The trial court rejected the plaintiffs’ assertion that the manufacturer had been aware of the defect in 2001 and had concealed the presence of it from the vehicle’s maker and the National Highway Transportation and Safety Administration.
The only evidence plaintiffs had of the company’s concealment, derived from a manager with “authority and responsibility” over production of the seatbelt push button having had knowledge.
The trial court rejected that such evidence was enough. Using the language of §95.031(2)(b) which employs similar language to the punitive damages statute with respect to a manufacturer acting through its officers, directors, partners or managing agents, the court used the FPL v. Dominguez, 295 So.3d 1202 (Fla. 2nd DCA 2019) analysis before concluding that the evidence plaintiff presented did not constitute enough to show that the witness had significant managerial power or was a managing agent.
The court explained that as the trial judge correctly observed, when considered in juxtaposition to the terms officer, director and partner in the applicable statute, a managing agent must be an individual of such seniority and stature within the corporation or business, to have ultimate decision-making authority for the company.
The trial court also found that plaintiffs failed the demonstrate a triable issue on the element of “actual knowledge.” Even after drawing every reasonable inference in favor of the plaintiffs, felt compelled to affirm the trial judge’s entry of summary judgment in favor of the manufacturer.
TRIAL COURT DID NOT ABUSE DISCRETION BY EXCLUDING A NEW EXPERT OPINION REGARDING A PLAINTIFF’S BACK INJURY THAT WAS NOT TIMELY DISCLOSED DURING THE FIRST OF TWO TRIALS – – TRIAL COURT ERRED IN DIRECTING A VERDICT THAT THE PLAINTIFF HAD SUSTAINED A PERMANENT INJURY BASED ON A DETERMINATION THAT THE SHAVING OF A SMALL BIT OF BONE CAUSED PERMANENT ANATOMICAL CHANGE.
Kipp Cooper and Classic Plumbing v. Gonzalez, 48 Fla. L. Weekly D662 (Fla. 4th DCA Mar. 31, 2023):
In this auto accident case, a woman had a herniated disc at L5-S1 and had a microdiscectomy. She then had a vertebral fusion.
The case went to trial, but the jury found the plaintiff suffered no permanent injury. The case resulted in a mistrial for reasons unrelated to the verdict.
The defense hired a CME expert after the first trial, stating that he could not say whether the accident caused the herniation. In the middle of the first trial on the evening before he was to testify, the doctor told plaintiff’s counsel he had reached a new opinion that the accident had definitely not caused the herniation.
The defendants disclosed the new opinion and admitted they were untimely. The trial court did not allow the doctor to testify about this late disclosed finding.
After the mistrial, the trial got transferred to a different judge who froze the case stating that all discovery, witnesses, etc. ceased, and relief could only come through an “order.” The defendants during this time came up with a third report from the CME, repeating the opinion shared in the middle of the first trial.
The defendants argued that the trial court abused its discretion in excluding the untimely disclosed definitive opinion, but the appellate court disagreed. After generally discussing the Binger factors, the court found that the new opinion was appropriately excluded.
However, the plaintiff claimed a permanent injury, arguing that scars from her shoulder surgery would constitute such an injury. Plaintiff also argued that the permanent anatomical change inherent in shaving a small bit of bone also constituted undisputed proof of permanent injury.
However, because there was directly conflicting evidence on permanent injury (the defendant said there was not one), the trial court erred in granting summary judgment on that issue ruling that it should have gone to the jury.