Where there’s smoke, there’s an inference.

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 31

CASES FROM THE WEEK OF AUGUST 7, 2026

APPELLATE COURT AFFIRMS $103 MILLION PRODUCT-LIABILITY VERDICT AFTER FORD FAILS TO PROVIDE RECORD CITES AND ADEQUATELY BRIEF ITS CHALLENGE TO THE CASSISI INFERENCE—CONCURRENCE EXPLAINS THAT A PRODUCT MALFUNCTIONING DURING NORMAL USE CREATES A JURY ISSUE ON DEFECT

Ford Motor Co. v. Hetsler, 51 Fla. L. Weekly D1582 (Fla. 5th DCA July 31, 2026):

This manufacturing-defect case arose after a 2016 Ford Mustang caught fire and severely burned the plaintiff. The vehicle had been modified with a Roush supercharger and had passed through multiple owners, and certain braking-system components were lost when a tow company sold the vehicle for salvage. The jury returned a verdict exceeding $103 million against Ford.

At trial, the court allowed the plaintiff to rely on the inference recognized in Cassisi v. Maytag Co.: which says that when a product malfunctions during normal operation, the malfunction itself supports an inference of defect sufficient to create a prima facie case for jury consideration.

Ford opposed the inference, arguing that the vehicle had been modified, that normal use had not been established, that Cassisi should not apply to automobiles or other nonpassive products, and that missing components prevented an adequate inspection.

The Fifth District affirmed—not because it resolved those issues against Ford on the merits (in fact, it clearly did NOT resolve the issue on the merits), but because Ford’s brief misstated case holdings, failed to provide record citations for some of its key factual assertions and failed to address the trial court’s stated reasons for rejecting its missing-evidence argument. The court emphasized that an appellant cannot prevail through conclusions and rhetoric or by leaving the appellate court to rebrief the case.

One judge concurred specially and addressed the merits, stating that even if Ford’s brief had been sufficient, the trial court had properly applied the Cassisi inference. He explained that Cassisi requires proof only that the product malfunctioned during normal operation, and whether the vehicle caught fire while the plaintiff was driving or while it sat idling, neither use would ordinarily cause a vehicle to become engulfed in flames. The concurrence further explained that the inference would have properly allowed the plaintiff to survive a directed verdict and create a jury question, without shifting the ultimate burden of proof or entitling the plaintiff to judgment as a matter of law.

SHERIFF NOT ENTITLED TO PARTIAL SUMMARY JUDGMENT ON SOVEREIGN IMMUNITY FOR ‘DAY-OF-SHOOTING’ CLAIMS ARISING FROM PARKLAND SCHOOL SHOOTING—DUTY AND IMMUNITY ARE DISTINCT, AND THE POLICE-EMERGENCY EXCEPTION DOES NOT CREATE IMMUNITY FROM SUIT

Tony v. Estate of Alhadeff, 51 Fla. L. Weekly D1557 (Fla. 4th DCA July 29, 2026):

The Broward County Sheriff appealed the denial of partial summary judgment on its sovereign immunity defense in the negligence actions arising from the Parkland shooting. This appeal addressed the discrete alleged negligence that occurred on the day of the shooting.

The Fourth District stressed that its jurisdiction over non-final appeals extended only to the issue of “entitlement” to sovereign immunity.

The Sheriff argued that it owed no legally cognizable duty. However, because duty and sovereign immunity are separate inquiries and may not be conflated, the argument exceeded the scope of the court’s jurisdiction for the appeal.

The Sheriff also failed to establish that the challenged conduct involved a protected planning- or policy-level function, nor was it entitled to apply the narrow police-emergency exception to establish immunity from suit. That exception applies only when police must choose between two different evils, and it does not apply where governmental actors created or substantially contributed to the emergency through their own negligence or failure to follow reasonable public-safety standards.

While the Sheriff can raise its immunity arguments, they could not be appealed pursuant to Rule 9.130. 

SOVEREIGN IMMUNITY BARRED WRONGFUL-DEATH CLAIMS WHERE THE COMPLAINT ITSELF CHALLENGED PLANNING-LEVEL DECISIONS CONCERNING PARK DESIGN, ROADWAY DESIGN, LIGHTING, AND TRAFFIC SIGNALS

Florida Department of Environmental Protection v. Estate of Zoll, 51 Fla. L. Weekly D1590 (Fla. 5th DCA July 31, 2026):

A fifteen-year-old exchange student was struck and killed while using a designated crosswalk across State Road A1A between the beachside and riverside portions of Gamble Rogers Memorial State Recreation Area. Her estate sued FDEP and FDOT, alleging that the agencies knowingly created an inherently dangerous intersection by dividing the park with a highway and failing to provide adequate illumination or traffic signals.

The Fifth District reversed the denial of the Defendants’ motion to dismiss, finding that the complaint conclusively established sovereign immunity. Although operational decisions implementing governmental policy generally are not immune, the creation and design of the park, the design of the roadway, and the decision whether to install lighting or traffic-control devices (pled in the complaint) were discretionary planning-level functions.

The estate characterized the case as a failure to warn of a known dangerous condition. But the dangerous condition identified in the complaint was the governmental entities’ decision to design and implement a park divided by a highway, coupled with the absence of lights and traffic signals, again, discretionary decisions. Because the pleaded theory attacked the protected plan itself, when the trial court accepted the allegations as true as it had to, sovereign immunity barred the claims as a matter of law.

AUTOMOBILE POLICY EXPRESSLY EXCLUDING ATTORNEY’S FEES AWARDED AGAINST AN INSURED DID NOT COVER A PROPOSAL-FOR-SETTLEMENT FEE JUDGMENT

Hurst, as Personal Representative of the Estate of Mathews v. Bell, 51 Fla. L. Weekly D1542 (Fla. 2d DCA July 29, 2026):

The plaintiff rejected Progressive’s presuit tender of its $100,000 bodily-injury limit and later served the insured with a $160,000 proposal for settlement. After trial, the court entered a judgment against the insured and a separate attorney’s-fee and cost judgment based on the unaccepted proposal. The estate sought to add Progressive to the fee judgment under section 627.4136(4).

The Second District affirmed the denial of joinder. Progressive’s ‘Additional Payments’ provision required it to pay expenses incurred in settlement or defense but expressly stated that those expenses did not include attorney’s fees awarded or assessed against an insured. A separate paragraph covering reasonable expenses incurred at Progressive’s request—illustrated by lost earnings for attending proceedings—could not somehow silently restore the very category of fee liability the policy expressly excluded.

The court distinguished GEICO v. Macedo. There, the policy did not contain any express exclusion for attorney’s fees, and was ambiguous as to whether ‘expenses’ and ‘costs’ were included a section 768.79 fee award. As this court wrote “Progressive’s policy answer[ed] the questions that the GEICO policy left open, and mere differing judicial interpretations of materially different policy provision do not themselves create ambiguity.

JUDGE ASSIGNED AFTER PREDECESSOR’S SUA SPONTE RECUSAL WAS NOT A ‘SUCCESSOR JUDGE’ UNDER RULE 2.330(i) AND COULD NOT PASS ON THE TRUTH OF FACTS ALLEGED IN THE FIRST DISQUALIFICATION MOTION DIRECTED TO HER

Quiambao v. Quiambao, 51 Fla. L. Weekly D1575 (Fla. 6th DCA July 31, 2026):

The petitioner sought a writ of prohibition after the assigned judge denied his motion to disqualify her, by considering and refuting the truth of the allegations.

The parties referred to the judge as a successor because she had replaced the originally assigned judge, who had recused herself sua sponte while a disqualification motion remained pending.

The Sixth District held this judge was not a “successor judge,” as that term is used in rule 2.330(i).

The rule applies only when the prior judge was disqualified on a party’s motion. Because the first judge recused herself without ruling on the pending motion, the later motion was an initial motion governed by rule 2.330(h). The challenged judge therefore could determine only legal sufficiency and could not pass on the truth of the alleged facts. Taking those allegations as true, the motion was legally sufficient and disqualification was required.

The court still held that the trial judge could enter a written final judgment memorializing an oral summary-judgment ruling made before the disqualification motion was filed. That act was ministerial and did not constitute prohibited further action in the case. One judge specially concurring urged the Legislature to consider whether the current rule invites gamesmanship by requiring legally sufficient disqualification motions to be granted even when their factual allegations may be baseless or untrue.

ROWE LODESTAR ANALYSIS DOES NOT GOVERN ATTORNEY’S FEES OWED BY A CLIENT AS CONTRACT DAMAGES UNDER A WRITTEN RETAINER AGREEMENT

Zorella v. Pathman Schermer Tandy, LLP, 51 Fla. L. Weekly D1544 (Fla. 3d DCA July 29, 2026):

Following a nonjury trial, the court awarded a law firm compensatory damages for the client’s breach of a written retainer agreement. The clients argued on appeal that the court was required to apply the lodestar factors identified in Florida Patient’s Compensation Fund v. Rowe before determining the amount owed.

The Third District affirmed. The Florida Supreme Court has explained that the lodestar method is ill-suited to determining fees owed as damages for breach of an agreement to pay fees and that Rowe was never intended to control disputes in which the client is the payor and participated in the fee arrangement. Rowe instead applies when the person required to pay had no part in that arrangement.