The Week In Torts – Cases from February 24, 2023
We don’t always get a second chance
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 8
CASES FROM THE WEEK OF FEBRUARY 24, 2023
THE FAILURE TO PROVIDE REQUIRED EVIDENCE TO SUPPORT AN ATTORNEY’S FEES AWARD UNDER SECTION 57.105, DOES NOT ENTITLE A PARTY TO HAVE A SECOND BITE OF THE APPLE ON REMAND.
Horowitz v. Rossdale CLE, Inc., 48 Fla. L. Weekly (D383 Fla. 5th DCA Fed. 17, 2023):
The trial court dismissed the plaintiff’s complaint and ordered him to pay attorney’s fees pursuant to Section 57.105.
An award of attorney’s fees under Section 57.105 must be supported by competent substantial evidence. Evidence should include records detailing the amount of work performed, the time it took to perform each task, as well as expert testimony needed to establish both the reasonableness of the hours and the reasonable hourly rate.
In this case, the defendant provided affidavits from two fee experts, and testimony from one of those experts, as well as an affidavit from defendant’s counsel which was not filed until after the conclusion of the hearing. The trial court noticed that there was a lack of evidence on Rowe factors, and even on the face of the court’s order, it was apparent that it did not have an adequate evidentiary foundation to calculate the reasonable amount of attorney’s fees, necessitating reversal.
NOTWITHSTANDING THAT IT OWES A NON-DELEGABLE DUTY, AN OWNER OF PROPERTY MAY STILL SEEK CONTRACTUAL OR COMMON LAW INDEMNITY FROM THE ACTUAL NEGLIGENT TORTFEASOR.
Topvalco, Inc. v. Wolff, 48 Fla. L. Weekly D352 (Fla. 4th DCA Fed. 15, 2023):
In this personal injury suit, the plaintiff sued both the defendant property owner, and the actual negligent property manager, after falling in a hole in the parking lot. The property owner filed a crossclaim against the property manager for both contractual and common law indemnity.
The trial court granted the defendant property manager’s motions to dismiss, finding that because the owner owed a non-delegable duty over the subject property, it was on they hook, pursuant to Pembroke Lakes Mall v. McGruder.
The court reversed. First, it made clear that notwithstanding a property owner’s non-delegable duty to an injured third party, that owner may still seek indemnity against the negligent tortfeasor.
Additionally, the court affirmed because the defendant failed to preserve the issue for review. The court admonished that a litigant must move for rehearing, to vacate or for relief from judgment to bring the error to the attention of the lower tribunal (if not brought up before then). Here, the defendant never raised the issue until the appeal.
IN FILING A CASE FOR EMPLOYMENT DISCRIMINATION, THE PLAINTIFF MUST SUE WITHIN ONE YEAR OF THE ISSUANCE OF THE “RIGHT TO SUE” LETTER PURSANT TO SECTION 760.11(5)
Aleu v. Nova Southeastern, 18 Fla. L. Weekly D357 (Fla 4th DCA Fed. 15, 2023):
The plaintiff filed with the EEOC on February 16, 2016, and described in her complaint acts of discrimination based on her sex and family status, as well as for retaliation. This filing constituted a filing with the Florida Commission on Human Relations pursuant to Section 760.11(1). The employee then filed a supplemental discrimination complaint on December 28, 2017, describing other acts in a similar vein.
On June 21, 2018, more than two years after filing her original discrimination complaint, but within 180 days of the employee having filed her supplemental complaint, the EEOC issued a “Dismissal and Notice of Rights” which gave the plaintiff the right to sue.
On March 11, 2021, nearly three years after the issuance of the right to sue, the employee filed a civil rights action against the employer.
The employer asserted that the action was time barred because the employee had failed to commence her action within one year of the date when the EEOC issued the right to sue letter. The employee believed that the four-year statute of limitations period set forth in Section 95.11(3)(f) applied, as she alleged this was an action founded on statutory liability.
The court granted the summary judgment for the employer, but certified conflict with the First DCA’s decision in Hines v. Whattaburger, where the court held that the four-year statute of limitations rather than the one-year period applied to a civil rights action.
LIFECARE PLANNER’S OPINIONS ABOUT FUTURE MEDICAL EXPENSES COULD NOT BE EVIDENCE TO SUPPORT A FUTURE MEDICAL AWARD, WHEN THE CARE WAS NOT RECOMMENDED BY A TREATING PHYSICIAN OR MEDICAL EXPERT.
Anderson-Moody v. Wilson, 48 Fla. L. Weekly D380 (Fla. 1st DCA Fed. 15, 2023):
The plaintiff retained a lifecare planner who announced during his deposition that he was not retained for the purpose of providing medical treatment or to serve as an independent medical expert. Although none of the plaintiff’s treating physicians recommended injections, the lifecare planner witness did — a point that defendant’s objected to both before and during trial.
Plaintiff argued the testimony was admissible, because it was based on the physician’s training and experience both as a lifecare planner and a neurosurgeon, as well as on his review of medical records and his clinical evaluation of the plaintiff. However, plaintiff’s counsel stipulated that the physician was acting solely as a lifecare planner, and had no clinical relationship with the plaintiff, even though he examined her as part of creating his lifecare plan.
At trial, the lifecare planner testified that plaintiff’s future needs would include injections which would amount to almost $700,000.00. However, there was nothing in the record to support that any of the plaintiff’s treating physicians recommended such injection therapy or treatment.
The court reversed the award for future injection expenses. It found that while lifecare planners may prepare comprehensive projections of future medical care and treatment to aid economists in calculating the future value of future medical care and treatment, in doing so they must rely on the recommendation of treating physicians. Simply because an expert may be qualified by experience, does not provide the necessary foundation for the witness to render any reliable opinions on future treatment.
The court held that a lifecare planner may not infuse his or her own medical opinions on calculating certain costs of future medical care when that care has not been recommended by a treating physician or medical expert. In this case, without the lifecare planner’s testimony, there was no reasonable evidence upon which the jury could award the damages for the future medical care for the injections, necessitating reversal on that discrete element of the final judgment.
IN SLIP AND FALL CASE, THE PLAINTIFF IS LIMITED TO INFORMATION REGARDING ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION THAT ALLEGEDLY CAUSED THE PLAINTIFF’S FALL – THE PLAINTIFF IS NOT ENTITLED TO INFORMATION REGARDING NEGLIGENT MODE OF OPERATION.
Publix Supermarkets v. Roth, 48 FLW D396 (Fla. 2nd DCA Fed.17, 2023):
In this slip and fall case against Publix, the plaintiff served a notice of video deposition pursuant to 1.310(b)(6) of Publix’s corporate representative who would testify about matters known and available to the organization about a liquid substance that was on the floor that allegedly caused the plaintiff’s fall.
The notice also directed Publix’s representative to produce before the deposition all documents listing seven categories of materials with 16 subcategories. Publix moved for a protective order based on work product and its assertion of gross overbreadth.
This case is similar to the Publix v. Blanco case that was decided by the Third District on January 25, 2023, where the Third District also granted a writ of certiorari based on an overbroad inquiry into corporate wide operations. The plaintiff here was seeking information regarding similar incidents at any Publix store for 10 years prior to his slip and fall. He also sought information about the layout of the store after the incident, policies, and procedures related to training and information regarding the prevention of such incidents.
Echoing recent prior precedent, the court said that the plaintiff was entitled to information regarding the actual or constructive knowledge of the dangerous condition that allegedly caused the plaintiff’s slip and fall at the Publix, and is not entitled to information regarding negligent mode of operation, unless the plaintiff can show that the information he was requesting was relevant to Publix’s actual or construction of the dangerous condition.
The court held that by failing to limit the plaintiff’s request to the standard set forth in Section 768.0755, Fla. Stat., which resulted in the carte blanche discovery of irrelevant information, the trial court departed from the essential requirements of law.
Finally, Publix also argued that the order departed from the essential requirements of law because it required it to disclose post incident information that was protected under the work product doctrine. Plaintiff argued that Publix waived that argument by failing to file a privilege log.
The court said Publix was not obligated to file a privileged log until the trial court ruled on the other objections and determined that the information was otherwise discoverable under Rule 1.280(b)(6). An obligation to file a privilege log does not mature until the asserted non-privileged objection – in this case overbreadth – is resolved.