Drive, don’t walk

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 6

FEBRUARY 14, 2025

NO ERROR IN GRANTING SUMMARY JUDGMENT FOR THE  DEFENDANT BANK IN A SLIP AND FALL CASE—THE BANK OWED NO DUTY TO THE PLAINTIFF WHO FELL WHEN WALKING UP TO A DRIVE THROUGH ATM

Morrisee v. Capital City Bank, 50 Fla. L. Weekly D290 (Fla. 1st DCA Feb. 5, 2025):

The plaintiff went to use the defendant’s 24-hour drive-through ATM, but because she feared her vehicle was too large to fit, she walked up to the ATM instead of driving up to it. There were no sidewalks or pedestrian pathways suggesting or supporting that the ATM was designed for pedestrian use. Unfortunately, as she approached, she slipped and fell on an oil slick on the ground.

The court found that subsection 2 of section 768.0755 applied (and not on subsection one which addresses injuries from falling on transitory foreign substances, which both parties had argued). Subsection 2 makes it clear that the statute does not affect any common law duty of care owed by a person or entity in control of a business premises.

While the court found that the plaintiff was unquestionably an “invitee,” the bank’s duty to maintain a safe premises for invitees was limited to the intended use of the premises as part of the invitation.

Here, the bank’s implicit invitation to the plaintiff was limited to accessing its ATM while she remained in her vehicle. The evidence supported that there was nothing to suggest or invite patrons to “walk up” to the ATM, and the bank’s duty was limited to keeping the area safe for motor vehicle traffic only; not for pedestrian traffic.

Because the court found there was no duty, there could be no breach, necessitating summary judgment for the defendant.

NO ERROR IN INSTRUCTING THE JURY ON SECTION 768.36 (DRUG AND ALCOHOL DEFENSE) IN A SUIT ALLEGING NEGLIGENCE PER SE BASED ON A VIOLATION OF THE OPEN HOUSE PARTY STATUTE

Strickland v. Allen, 50 Fla. L. Weekly D286 (Fla. 1st DCA Feb. 5, 2025):

The plaintiff (who was under 21) was seriously injured when the ATV she was driving crashed into a tree on defendant’s property.

The plaintiff testified that she drank vodka, that she had purchased with a fake ID, at the defendant’s house and also drank vodka from the defendant’s liquor cabinet with his implied permission at an open house party. She alleged that he knew she was drinking before she drove the ATV.

The defendant denied the allegations, testifying that while he hosted a social gathering, he did not provide alcohol to, nor did he allow any underage guests to consume alcohol at his residence.

The case addressed the interplay between Section 856.015, Florida Statutes (the open house party statute) and Section 768.36 (the alcohol or drug defense statute). The jury was instructed and given a special verdict form asking whether the defendant violated Section 856.015. There was also a second question on the verdict about whether the plaintiff was intoxicated to the extent her normal faculties were impaired under Section 768.36, and more than 50% at fault for her own harm.

The jury answered no to the first question, exonerating the defendant without reaching the drug and alcohol defense question.

The court explained that by enacting Section 856.015, the legislature imposed a duty of care on social hosts and created a civil cause of action for a statutory violation. It then noted that Section 768.36(2) states that in any civil action, a plaintiff may not recover damages for loss or injury if the trier of fact finds an impairment from drug or alcohol that made the plaintiff more than 50% at fault for the harm suffered.

The court found that the trial judge correctly gave the drug and alcohol defense instruction, but that it did not matter because the jury found the defendant was not liable.

NO ABUSE OF DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL BASED ON ERRORS IN ASSEMBLING THE VENIRE — PLAINTIFF WAIVED ANY ISSUE BY NOT LODGING AN OBJECTION UNTIL AFTER THE ADVERSE VERDICT

Anderson v. RJ Reynolds Tobacco Co., 50 Fla. L. Weekly D289 (Fla. 1st DCA Feb. 5, 2025):

During voir dire, the defendants moved to strike the venire. The plaintiff neither opposed the motion nor joined it. Prior to the jury being sworn, the defendants renewed their objection to the venire, and again the plaintiff took no position.

However, the plaintiff raised the venire issue in her motion for a new trial, which the trial court denied, and the appellate court affirmed.

Because a party’s failure to object to the procedure or lack of sufficient venire waives the argument for review, the court affirmed the denial.

COURT FINDS THAT EQUITABLE DISTRIBUTION STATUTE 440.39(3)(A) USED TO COMPUTE LIENS APPLIES TO MONIES PAID UNTIL ADJUDICATION OF THE LIEN—NOT AS OF THE DAY OF SETTLEMENT

Liberty Mutual Insurance Co. v. Lee, 50 Fla. L. Weekly D325 (Fla. 6th DCA Feb. 7, 2025):

The plaintiff was injured in the elevator in the building where he worked. The workers’ compensation carrier for his employer immediately began paying benefits both to the plaintiff and on his behalf.

The plaintiff eventually sued the elevator operator and the workers’ comp carrier filed a lien under Section 440.39(3)(a).

After the case settled, the carrier sought its pro rata share of the settlement amount for the benefits it paid. But by the time of the hearing, the lien had increased substantially, and the dispute arose as to the amount the carrier was owed.

The carrier moved for equitable distribution under the statute. The trial court ordered the parties to non-binding arbitration to determine the full case value (full value of damages sustained).

After the arbitration, the parties sought to calculate the reimbursement amount, agreeing that the carrier was entitled to 11.61% of the benefits paid as its equitable distribution. The plaintiff posited that the carrier should only be reimbursed for that percentage of benefits it paid through the date of the settlement with the elevator operator. The carrier, on the other hand, argued it should be reimbursed for the benefits paid through the date of equitable distribution (these positions involved a $300,000 swing).

Under the plain language of the statute, always the starting point in a matter of statutory interpretation, the appellate court concluded that the carrier was correct, and that the plaintiff owed for benefits received until the date of the hearing. It found that to find otherwise would have resulted in a double recovery for the plaintiff.