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The Week In Torts – Cases from August 25, 2023
Nope, still not bad enough…
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 34
CASES FROM THE WEEK OF AUGUST 25, 2023
ERROR TO GRANT PLAINTIFFS’ MOTION TO AMEND TO PLEAD PUNITIVE DAMAGES BASED ON GROSS NEGLIGENCE – – PLAINTIFF’S PROFFER DID NOT SUPPORT AMENDMENT.
Long v. Kropke, 48 Fla. L. Weekly D1614 (Fla. 4th DCA Aug. 16, 2023):
The plaintiffs were standing on the street between a golf cart and the curb located just past the intersection. The couple was talking to a neighbor in their gated, country club community. The defendant drove around the corner, colliding with the back of the golf cart. She hit the wife plaintiff, and then pushed the golf cart forward, causing it to hit the husband.
The plaintiffs sued the defendant, and later moved to add a claim for punitive damages based on gross negligence.
In the proposed amended complaint, the plaintiffs alleged that the defendant had a habit of speeding through the community, that she was speeding at the time of the accident, and that she ran a stop sign at the corner before turning into the street where they were standing.
Plaintiffs’ proffer consisted of the plaintiffs’ answers to interrogatories stating that the defendant was speeding, and identified two witnesses who would testify that the defendant had a habit of speeding in the community. They also had an affidavit prepared by the resident with the golf cart, stating that it was obvious that the defendant must have accelerated through the intersection in excess of the speed limit, as well as a proffer of testimony from a resident stating that the defendant sped through the intersection without stopping at the stop sign.
Gross negligence requires proof that the defendant’s conduct was so reckless or wanting in care that it constituted conscious disregard or indifference to the life safety or rights of persons exposed to such conduct. The level of negligence required is equivalent to that required to support a conviction for criminal manslaughter.
The court distinguished the few cases that the plaintiffs relied on to support their proffer (e.g., a case where a driver was driving 91 mph in a 40 mph zone near a construction site and was weaving before rear-ending a stopped car without braking).
The court concluded that the plaintiffs did not proffer sufficient evidence to show that the defendant’s conduct was as egregious as the defendants in the cases that plaintiffs cited.
Without sufficient evidence, the proffer simply demonstrated ordinary negligence, not the type of “truly culpable” or outrageous conduct that would support a claim for punitive damages.
NON-PARTY HAS 45 DAYS TO OBJECT TO A SUBPOENA WHEN THE NOTICE OF NON-PRODUCTION IS SERVED SIMULTANEOUSLY WITH THE COMPLAINT.
In Re: Amendments to Florida Rules of Civil Procedure 1.351, 48 Fla. L. Weekly S158 (Fla. Aug. 24, 2023):
The court amended subparagraph (b) of the rule to state that in cases where a notice of non-party production is served with the original process, the subpoena may not be issued earlier than 45 days after service on the last served party.
The Court also amended subdivision (b) to allow for an additional five-days for mailing time, and to clarify that a subpoena for the production of documents may not be issued until 10 days after the notice if service is by delivery or email, or 15 days if it by U.S. mail.
ERROR TO DENY SOVERIGN IMMUNITY DEFENSE WHEN DEFENDANT’S CONDUCT DID NOT RISE TO THE LEVEL OF” WILLFUL AND WANTON” CONDUCT.
HNTB Corp. v. Milstead, 48 Fla. L. Weekly D1623 (Fla. 3rd DCA Aug. 16, 2023):
A construction worker fell off the back of a truck’s tailgate while riding back to his crew’s location after working on a highway project on I-10. He struck his head on the road and died from head trauma.
Plaintiff sued HNTB, and entity hired by the FDOT as the construction engineering inspector (CEI) on the project. Its role was to oversee the GC’s compliance with the project.
The FDOT also hired the GC, that had subcontracted the heavy pole lifting and installation work to the subcontractor for whom the decedent worked. Part of the decedent employee’s job was to place traffic cones and signage along the highway to alert approaching traffic. The employer had contracted with Bob’s Barricades for the maintenance of traffic (MOT) equipment and placement; an activity that is highly regulated by FDOT.
HNTB’s job was to observe and report to FDOT about the GC’s compliance with the contract and the standards and specifications for the job. The record indicated that the decedent’s employer and co-workers commonly performed the traffic cone and sign work while sitting on a tailgate, or on a bed of a slowly moving pickup truck driving on the shoulder.
The plaintiff asserted that HNTB willfully and wantonly breached its contract to provide safe project conditions, by overlooking the job site’s MOT violations, and by failing to direct the GC to prohibit the subcontractor and its workers from handling their MOT equipment placement and pick up responsibilities from the tailgates or truck flat beds.
HNTB asserted it was entitled to sovereign immunity as an agent of the state.
The plaintiff argued that the “wanton and willful” exception of sovereign immunity applied because HNTB’s knowledge of the repeated and obvious danger of allowing the workers to ride unsecured in truck beds amounted to willful and wanton conduct.
The court rejected that HTNB had acted with willful and wanton conduct, finding that for it meet that level, the conduct had to involve some degree of conscious wrong on the part of the actor, or culpable carelessness that was something more than a “mere omission” to perform a previously imposed duty.
It then reversed for entry of summary judgment based on sovereign immunity.
COURT AFFIRMS SUMMARY JUDGMENT IN A SLIP AND FALL CASE AT A HOSPITAL.
Whitlow v. Tallahassee Memorial Healthcare, 48 Fla. L. Weekly D1647 (Fla. 1st DCA Aug. 16, 2023):
The plaintiff slipped on a liquid while visiting her father at the hospital as she exited the elevator on the ground floor. She fell and sustained injuries requiring her to be hospitalized.
She sued the hospital alleging it was negligent in failing to maintain its premises. Plaintiff theorized that she slipped on water left by a stretcher pushed out of the elevator by hospital employees, immediately before she entered.
Section 768.0755(1) requires that a plaintiff who claims to have slipped due to a transitory foreign substance prove the defendant’s knowledge of the dangerous condition, and prove that the defendant should have taken action to remedy it.
After an extensive analysis about the importance of the right to trial by jury remaining “secure and inviolate”, along with a mention of the new summary judgment rule that tasks the trial judge as a gate keeper for determining when a jury should resolve factual disputes both before and during the trial, the court rejected the plaintiff’s claim. The court disagreed that there was evidence that the hospital had actual knowledge of the water on the elevator floor simply because the hospital employees had been pushing a stretcher that exited the elevator immediately before she entered it. Plaintiff conceded there was no constructive knowledge.
The plaintiff introduced affidavits of her mother and nephew who attested there was no caution or warning signs about the wet floor, but said that the stretcher was wet and dripping.
The court still found that the plaintiff’s case left an evidentiary gap regarding the defendant’s knowledge of the water on the floor. The record at best showed that the nephew was the only one who saw the dripping the stretcher, and his mother was the only one who saw the water on the floor. Still, there was nothing on the record to establish the hospital had knowledge that could be imputed, or from which to reasonably infer that knowledge.
THE TRIAL COURT PROPERLY DENIED THE CITY’S MOTION TO DISMISS PLAINTIFF’S CLAIMS AGAINST THE CITY ON THE GROUND THAT THE COMPLAINT WAS BASED UPON A DISCRETIONARY PLANNING LEVEL DECISION FOR WHICH THE CITY WAS IMMUNE.
City of Tampa v. Frederick, 48 Fla. L. Weekly D1664 (Fla. 2nd DCA Aug. 18, 2023):
The lawsuit stemmed from an incident in which the husband was struck by a car while cycling in a bike lane between the traffic lanes on a street in Tampa. The City moved to dismiss, stating the plaintiffs failed to state a cause of action, because their claim challenged the design of the bike lane which was a planning level decision from which it would be immune.
In looking at the well plead allegations of the complaint, the negligence count against the City asserted that the City had failed to execute the operational function of warning citizens of a dangerous condition it created.
Plaintiffs also alleged that the City created a dangerous condition by designing the bike lane in such a way that required cyclists to cross active traffic lanes, with vehicles approaching from the rear, in order to remain in that bike lane.
The plaintiffs alleged that the City knew or should have known of this dangerous condition, and it failed to warn of its inherent danger. Because those allegations were sufficient to open the courthouse doors at the motion to dismiss stage, it was an error for the court to dismiss.