To the line, but not crossed

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 34

CASES FROM THE WEEK OF AUGUST 28, 2026

COURT ACTUALLY REVERSES ORDER GRANTING NEW TRIAL ON $6.8 MILLION PLAINTIFF’S VERDICT–A JUROR’S VISIBLE REACTION TO BRAIN-INJURY EVIDENCE AND LIMITED DISCUSSIONS AMONG THEM DURING TRIAL NOT ENOUGH TO SUPPORT THE ORDER–A NEW TRIAL REQUIRES PREJUDICE, NOT JUST IRREGULARITY

Velie v. Walmart Stores East, LP, 51 Fla. L. Weekly D1692 (Fla. 4th DCA Aug. 19, 2026):

The plaintiff sued Walmart after an employee operating a pallet jack struck her while she was shopping.  After a five-day trial, the jury found Walmart one hundred percent liable and awarded the plaintiff $6,786,517.61.

During one of the treating physician’s testimony, plaintiff’s counsel displayed a demonstrative depicting her alleged brain injuries. One juror became visibly ill, said she was going to throw up, and could not continue looking at the images. The court removed the juror, seated an alternate, and instructed the remaining jurors to disregard the reaction. Later, a jury note asking whether earlier treatment would have changed the plaintiff’s outcome prompted the defendant’s concern that the jurors had discussed the evidence before deliberations.

The court again denied a mistrial, gave a curative instruction, and interviewed the jurors. They acknowledged brief discussions about the evidence, but denied having debated liability or damages, trying to persuade each other, reaching conclusions, or receiving outside information.

After the verdict, the trial court granted Walmart a new trial, concluding that the cumulative effect of the juror’s reaction, the mid-trial discussions, confusion over the instructions, and concerns arising from the juror interview required such a ruling.

The appellate court reversed. Although an order granting a new trial receives substantial deference, section 59.041 does not permit a verdict to be set aside unless the complained-of error resulted in a miscarriage of justice. The court noted how the excused juror expressed no view on the merits, and that the court replaced her and followed up with a curative instruction.

While the other jurors’ discussions did violate the court’s instruction not to discuss the case before deliberations, and there were discussions about the evidence, those discussions did not amount to premature deliberations because no one expressed an opinion, advocated a result, or relied on extrinsic information.

The court also rejected cumulative error. Several harmless or unsupported concerns do not become prejudicial simply by being added together. The record showed prompt curative action and no reasonable basis to conclude that the incidents affected the verdict. The court therefore reversed the granting of the new trial, and ruled to reinstate the jury’s verdict.

THE GRAVES AMENDMENT AND SECTION 324.021(9)(c)3 BAR CLAIMS AGAINST THE DEALERSHIP FOR VICARIOUS LIABILTY WHEN A CUSTOMER GETTING SERVICE ON HIS LEASED VEHICLE INJURES SOMEONE WHILE DRIVING A LOANER VEHICLE

McAllister v. Holman Automotive, Inc., 51 Fla. L. Weekly D1694 (Fla. 4th DCA Aug. 19, 2026):

The plaintiff was injured when a man who was operating a loaner vehicle while his leased car was in for service ran into him. The plaintiff sued both the driver and the dealership, asserting negligence against the driver and seeking to hold the dealership vicariously liable under Florida’s dangerous-instrumentality doctrine.

The undisputed evidence showed that the driver had signed a written agreement identifying the transaction as a rental. The dealership received the opportunity to service his leased vehicle and payment for new tires and installation. Before releasing the loaner, the service advisor reviewed the customer’s driver’s license and insurance card and entered their information into the dealership’s computer system.

The court affirmed summary judgment for the dealership. Based on the consideration exchanged in connection with the service work, the temporary-loaner transaction was a rental or lease within the federal Graves Amendment. The court found the case was similar to the Eleventh Circuit’s precedent in Thayer (not Romero where no consideration was identified, the customer was not told he was entering a lease, and no rental agreement existed.

Florida law also required the same result. Section 324.021(9)(c)3. immunizes a dealer that provides a temporary replacement vehicle to a service customer, absent negligence or criminal wrongdoing by the dealer itself. The statute’s requirement that the dealer obtain a copy of the customer’s license and insurance information did not require retaining a physical photocopy. Inspecting the documents and recording their information in the electronic system was enough.

As a result, neither ownership of the loaner car nor the driver’s alleged negligence made for a viable claim against the dealership.

TRAVEL INSURER COULD NOT TREAT EARLIER BACK SYMPTOMS AS THE SICKNESS THAT FORCED CANCELLATION—THE COVERED CONDITION COMMENCED WHEN A NEUROSURGEON FIRST ADVISED PROMPT SURGERY DURING THE POLICY PERIOD

Generali-U.S. Branch v. Springel, 51 Fla. L. Weekly D1704 (Fla. 4th DCA Aug. 19, 2026):

The plaintiff insureds booked a $38,658 Arctic cruise for July of 2022 and purchased a Generali travel policy covering cancellation caused by an unforeseeable sickness that first commenced during the policy period. The husband had experienced back symptoms for years and, shortly before coverage began, underwent imaging, saw a physician’s assistant, and received an injection. Even so, he remained highly active, continued biking and going to the gym, and took another twelve-day cruise in March of 2022.

After the policy took effect, a neurosurgeon told the husband for the first time that he needed spinal-fusion surgery and risked losing bowel and bladder control if he delayed it. He had hoped to postpone surgery until after the Arctic trip but underwent the procedure in May. The operation proved more serious than expected, and at a June follow-up the surgeon advised that the husband had not recovered enough to travel. The plaintiffs canceled the cruise, and as so often happens with travel insurance, the insurer denied the claim as arising from a pre-existing and foreseeable condition.

Following a nonjury trial, the court ordered the insurer to reimburse the full cruise price, which the appellate court affirmed. Under the policy’s own definition, the sickness that prevented travel commenced when the neurosurgeon examined the husband plaintiff during the coverage period, disclosed the urgent risks, and recommended surgery. The disabling condition was the need for prompt surgery and postoperative recovery, not the earlier pain he had experienced intermittently while remaining active and being able to travel.

The pre-policy visit with a physician’s assistant also did not qualify as treatment by a ‘physician,’ which the policy defined as a licensed medical doctor. Competent substantial evidence also supported the finding that the loss was not reasonably foreseeable when the policy was purchased.

Here, the plaintiffs paid a $3,492.16 premium for coverage, planning on taking the trip, and the insurer could not transform earlier symptoms into the distinct, later sickness that actually caused the cancellation.

APPELLATE COURT SANCTIONS ATTORNEY FOR HIS LATE RESPONSE TO ITS ORDER TO SHOW CAUSE ABOUT HIS FAILURE TO VERIFY AUTHORITIES—THEN REFERS HIM TO THE FLORIDA BAR

Capital Standard, LLC v. U.S. Bank National Ass’n, 51 Fla. L. Weekly D1719 (Fla. 2d DCA Aug. 21, 2026):

The court affirmed a declaratory judgment for the appellee without discussion.

It wrote, however, to explain its decision to sanction appellant’s counsel for what it called “rampant use of hallucinated citations” in the amended initial brief and reply brief. The court pointed out “numerous whoppers” of misstated authority.

The amended initial brief contained at least thirty-one false citations or quotations. Most involved real cases cited for propositions they did not contain. After the appellee pointed out the defects, the reply brief brazenly added fifteen more hallucinations, including a fake case. The court concluded that almost nothing about the attorney’s legal representations could be trusted.

The court issued a detailed order to show cause, meticulously detailing the 46 hallucinations, and requiring the attorney to produce and annotate every cited case and explain every nonexistent or inaccurate authority. The court warned the failure to respond could result in dismissal, fees, referral to the Bar and other sanctions.

The attorney ignored the order for more than a month. The court struck his brief, compelled him to advise his clients of what was going on, and had the Clerk send the order to the client’s last known addresses.

When the attorney finally responded, he said he had used AI as a supplemental research tool, had not appreciated its risks, and had missed the order while preparing for a trip to Japan. He said he would set up some procedures to make sure it “didn’t happen again.”

The court rejected the attorney’s explanation as both insufficient and incredible. It noted that the volume of invented authority showed that AI had clearly been counsel’s primary or only research tool, and called him out for blatantly violating several rules of procedure and judicial administration.

The court emphasized that signing a filing certifies that counsel has read it and has grounds to support it. The June 2026 amendment to Florida Rule of General Practice and Judicial Administration 2.515(d), expressly confirming that cited authorities exist and are accurately described, only made that longstanding duty more explicit. Counsel’s later submission of corrected briefs did not erase the wasted time and resources.

The court fined counsel $500 for the delayed show-cause response and $1,000 for the AI misuse, ordered him personally to pay appellee’s attorney’s fees incurred in responding to the bogus amended initial brief, and referred him to The Florida Bar.

The court concluded by admonishing that there is nothing wrong with using generative AI in law practice, and that it may very well “be helpful if done properly and carefully.” It quoted another case that pointedly advised:

“[T]he use of artificial intelligence must be accompanied by the application of actual intelligence in its execution.”

The lesson from this and other cases is uncomplicated: AI may assist research and drafting, but the lawyer who signs the filing must personally verify that every authority exists and actually says what the submission claims it says.

TIMELY REQUEST FOR TRIAL DE NOVO GAVE ADEQUATE NOTICE THAT THE PARTY REJECTED THE NONBINDING ARBITRATION AWARD—IN THE SIXTH DISTRICT, RULE 1.820(h) DOES NOT REQUIRE THE MAGIC WORDS ‘NOTICE OF REJECTION’

The Waterfront in Naples Condominium Association, Inc. v. Reynolds Ventures, Inc., 51 Fla. L. Weekly D1728 (Fla. 6th DCA Aug. 21, 2026):

After Hurricane Ian damaged its condominium complex, the Association hired the contractor plaintiff to perform water and mold remediation and restoration work.

A payment dispute led the plaintiff to sue for breach of contract, foreclosure of its construction lien, and unjust enrichment. Following nonbinding arbitration, the Association timely filed a document titled ‘Motion and Request for Trial De Novo,’ stating that it requested a trial de novo from the identified arbitration award ‘as to all claims.’

At a later hearing, the trial court sua sponte ruled that the filing did not comply with the amended version of Florida Rule of Civil Procedure 1.820(h) because it was not called a ‘notice of rejection of the arbitration decision and request for trial.’ The court struck the request, unsealed the arbitration award, and entered final judgment in accordance with it.

The Sixth District reversed and remanded for a trial on the merits. Rule 1.820(h) requires a party, within twenty days, to file in one document a notice rejecting the arbitration decision and requesting trial. But it does not prescribe a title, a form, or any magic words.

The Association’s filing identified the award and unequivocally requested a trial de novo on every claim. The court said a reasonable reader could understand that language only as notice that the Association refused to accept the arbitration decision.

The court declined to follow the Fourth District’s Hernandez decision and the Third District’s Sanchez decision to the extent they require the express words ‘notice of rejection.’

While the court here said it was “guided by the supremacy of text principle,” it also refused to impose a hyper literal requirement that is not in the rule and elevate form over substance.