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The Week In Torts – Cases from December 24, 2021
May be unrelated, but the employer doesn’t care!
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 51
CASES FROM THE WEEK DECEMBER 24, 2021
PLAINTIFF MUST SUE THE CO-EMPLOYEE HIM OR HERSELF TO PURSUE THE UNRELATED WORKS EXCEPTION TO WORKER’S COMPENSATION IMMUNITY
Brinchek v. Sovereign Healthcare of Orlando, 46 Fla. L. Weekly D2672 (Fla. 5th DCA Dec. 17, 2021):
The unrelated works exception to workers’ compensation immunity does not apply to a claim by an employee of a contractor against the sub-contractor who secured workers’ compensation for its employees.
Also, the exception does not apply to lawsuits against employers, because the statute expressly states that the exception applies only to co-employees, and the Plaintiff must actually sue the co-employee to call upon the exception.
ERROR TO DENY MOTION FOR DIRECTED VERDICT ON CONSTRUCTIVE KNOWLEDGE OF DANGEROUS CONDITION IN A SLIP AND FALL CASE – PLAINTIFF FAILED TO OFFER SUFFICIENT EVIDENCE OF ACTUAL OR CONSTRUCTIVE NOTICE
Speedway, LLC v. Cevallos, 46 Fla. L. Weekly D2643 (Fla. 4th DCA Dec. 15, 2021):
The plaintiff fell at a Speedway gas station and the jury awarded her substantial damages. Speedway asserted that the plaintiff failed to prove that it had constructive knowledge of a dangerous condition, and argued that the trial court should have directed a verdict for it.
The accident happened after the plaintiff pulled into a gas pump and went inside the station to pay. As she was walking back to her car, another car was exiting the station. Video surveillance showed it left behind a puddle of liquid.
Once the plaintiff began pumping her gas, and while waiting for it to finish, she moved towards the trash can to throw something away, and she slipped in the liquid substance of oil and gas left by the car. The surveillance confirmed that the liquid had been on the ground 111 seconds before the fall. Plaintiff sustained multiple fractures, and required surgery to repair the damage.
The plaintiff asserted that the buildup had occurred on the concrete, which was caused by inadequate maintenance by the station. The maintenance technician testified that the area around the gas pumps was a “roughly smooth” concrete, which was porous and would absorb liquids. He testified that he was not a concrete expert, nor qualified to determine whether there was buildup on the concrete.
However, the evidence was that Speedway did not have employees who were specifically responsible for inspecting floor services, but that all employees were trained to look for hazards. On cross, he testified that the buildup he referred to typically involved diesel fuel and pumps, not the type of pumps where the plaintiff fell. He testified that he was not aware of any ongoing gas spills during his five years as the store’s maintenance technician.
Both the manager of the station and the district manager testified that gasoline spills were not a frequent occurrence at that store, and the maintenance technician testified that in the five years he was assigned to the store, he was not aware of any issues with gasoline spills.
The surveillance video also showed an employee inspecting the area approximately thirty minutes before the plaintiff fell, and just after the fall, the general manager inspected and took pictures, which were admitted into evidence. Speedway called an expert who testified that there was no evidence of any buildup and that the surface was slip resistant.
Speedway moved for a directed verdict contending that plaintiff failed to present any evidence of its actual or constructive notice of the spill, or of a dangerous condition.
Section 768.0755, Florida Statutes (2016), governs liability in premises cases. The statute requires that the plaintiff prove the actual constructive notice, which may be inferred from either the amount of time the substance is on the floor, or the fact that the condition occurred with such frequency that the owner should have known of its existence.
Here, the time, ambiguous photos, and the purely circumstantial evidence created impermissible stacked inferences. The jury had to first infer that the defendant deliberately refrained from implementing a single policy regarding maintenance of the concrete at the fuel pumps, and then had to stack that inference on another inference, that a lack of a policy resulted in an unreasonably slippery concrete due to a buildup.
The plaintiff could not establish either inference to the exclusion of all the reasonable ones, leaving the jury to speculate about the existence of the condition and defendant’s constructive knowledge, necessitating a directed verdict.
WHEN A DEFENDANT SERVES A RESPONSIVE PLEADING WITHOUT RAISING AN IMPROPER OR THE LACK OF SERVICE OF PROCESS DEFENSE, DEFENDANT WAIVES THE DEFENSE, AND CANNOT RAISE IT ON A SUBSEQUENTLY FILED MOTION TO DISMISS
Vulcan Equities v. Yarbrough, 46 Fla. L. Weekly D2657 (Fla. 3rd DCA Dec. 15, 2021):
Pursuant to Fla. R. Civ. P. 1.140(b), insufficient service of process, insufficient process and lack of personal jurisdiction are all defenses that must be raised in a responsive pleading or in a motion, before the responsive pleading is filed.
While the defendant in this case filed two responsive pleadings and served them on opposing counsel, they were for some reason not docketed with the clerk. The trial court consequently dismissed the case without prejudice, finding the rule did not apply because the motions were not on the clerk’s docket.
Because the defendant filed two responsive pleadings and did not raise a challenge to personal jurisdiction or service of process in those, it waived those challenges and could not validly assert them in a subsequent motion to dismiss.
SUCCESSOR JUDGE ERRED IN DENYING RULE 1.540(b) MOTION TO VACATE FINAL SUMMARY JUDGMENT ENTERED BY PREDECESSOR JUDGE BASED ON HIS BELIEF THAT HE LACKED THE AUTHORITY TO DO SO
Samoilova v. Loginov, 46 Fla. L. Weekly D2664 (Fla. 3rd DCA Dec. 15, 2021):
As a rule, a successor judge has the authority to rule on a 1.540 motion directed to a final judgment entered by a predecessor judge. The court reversed, with instructions that the successor judge should consider the motion.
ERROR TO ORDER PERSONAL AND MENTAL HEALTH RECORDS PRODUCED WITHOUT DETERMINING WHETHER THE PERSON WAIVED THE PRIVILEGE TO THOSE RECORDS – TRIAL COURT ALSO SHOULD HAVE REQUIRED AN IN- CAMERA REVIEW
Whittington v. Whittington, 46 Fla. L. Weekly D2665 (Fla. 1st DCA Dec. 15, 2021):
A person’s medical records enjoy confidential status, and the only way privileged records are subject to disclosure is when there is an applicable statutory exception or a voluntary or involuntary waiver. Because the trial court first failed to determine whether the petitioner waived her privilege to those records, it was a departure from the essential requirements of law to order them produced.
Additionally, by failing to require an in-camera review to ensure that only relevant records would be produced, the trial court also departed from the essential requirements of law.
Because the harm caused by the erroneous production of such records could not be remedied on appeal, certiorari was proper.
TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT IN SLIP AND FALL BASED ON OPEN AND OBVIOUSNESS – FACT QUESTION REMAINED AS TO WHETHER THE CONDITION WAS OBVIOUSLY DANGEROUS
Conrad v. The Boat House of Cape Coral, 46 Fla. L. Weekly D2675 (Fla. 2nd DCA Dec. 17, 2021):
The plaintiff fell in an area where a seawall had a chunk of concrete missing at its edge. He was an experienced boater, and when he returned to the defendant boathouse, while he saw yellow paint along the edge of the seawall after getting off his boat, he did not see the divot because the edge of the seawall was painted all one color camouflaging the divot.
The trial court determined that the divot was clearly visible and should have been obvious to the plaintiff because it was not latent or concealed. The court ruled that the open and obvious nature precluded a finding of a breach of duty as a matter of law.
On appeal, plaintiff argued that the defendant knew of the dangerous defect and failed to warn him.
The court reversed the summary judgment, finding that the issue was not whether the object was obvious, but whether the dangerous condition of the object was obvious. A court must consider all of the existing circumstances surrounding the accident and the alleged dangerous condition. The divot was in the seawall, and can be considered similar to a pothole, in that it reflects a defective condition for failure to maintain the property.
Additionally, even if the divot wasn’t an open and obvious danger, a homeowner or possessor can still be liable for failing to exercise reasonable care to prevent foreseeable injury to invitees.
Because the defendant property owner failed to establish that there were no genuine issues of material fact about whether it should have foreseen that the injury could occur as a result of the divot on the edge of the seawall, and because viewing all reasonable inferences in favor of the plaintiff showed factual questions, the court reversed summary judgment.