The Week In Torts – Cases from February 3, 2023
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FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 5
CASES FROM THE WEEK OF FEBRUARY 3, 2023
A COURT MAY ISSUE A WRIT OF CERTIORARI WHEN ATRIAL COURT GIVES A LITIGANT “CARTE BLANCE” TO IRRELEVANT DISCOVERY
Publix v. Blanco, 48 Fla. L. Weekly D192 (Fla. 3rd DCA Jan. 25, 2023):
In this slip and fall case, where the plaintiff alleged he fell on a “wet and slippery” substance in the customer bathroom, he served a 15 page notice of deposition of Publix’s corporate representative, listing 52 areas of inquiry.
Following a two day hearing, the trial court limited the requests to four main areas: (1) flooring materials; (2) safety committee meetings; (3) root cause analyses and development of risk management policies and procedures; and (4) workers’ compensation claims.
Publix argued that it was entitled to certiorari, because the underlying order would cause it irreparable harm due to its grant of “carte blanche” access to irrelevant discovery.
Although discovery of irrelevant information does not generally cause irreparable harm, a litigant is “not entitled carte blanche to irrelevant discovery.” Thus, where it has been affirmatively established that such discovery is neither relevant, nor will lead to the discovery of relevant information, certiorari may be warranted.
The court relied on a case where the court there found that requiring Publix to produce slip and fall incident reports from all Publix stores within Florida amounted to impermissible carte blanche discovery of irrelevant information, because section 768.0755 requires a plaintiff to prove that the particular business establishment where the injury occurred had actual or constructive knowledge of the dangerous condition. Thus, in light of the statute, discovery has to be restricted to information at a particular establishment.
In this case, the order sought to have the witness address areas of inquiry related to Publix’s corporate wide operations, which included 1,300 stores throughout the country. The court rejected that such information was relevant to a “negligent mode of operation” theory, because such theory is not viable under the statute, which as noted, now requires actual or constructive notice for success in a slip and fall case.
Because section 768.0755 does not permit proof of liability under the negligent mode of operation theory, and because the order allowed “impermissible carte blanche” discovery, the court granted certiorari relief.
PARTIES MAY ONLY APPEAL NON-FINAL ORDERS TO THE EXTENT THEY ARE OF THE TYPE ENUMERATED IN RULE 9.130—GOVERNMENTAL ENTITIES ARE NOT SOVEREIGNLY IMMUNE FOR THEIR OPERATIONAL LEVEL DUTIES
Florida Dept. of Highway Safety and Motor Vehicles, 48 Fla. L. Weekly D187 (Fla. 3rd DCA Jan. 25, 2023):
The Defendant attempted to appeal the trial court’s ruling finding that it had owed a duty to the decedent as part of its non-final appeal on the denial of sovereign immunity. However, litigants may not boot strap “non-appealable” non-final orders, on to the appealable ones. The appellate court declined to review that part of the order on that basis.
Because this case involved a police officer who the plaintiff alleged acted negligently in the performance of an operational level duty (the court did not identify what the purportedly negligent acts were), the court affirmed the trial court’s ruling finding that the defendant was not protected by complete sovereign immunity from the claim.
COURT REVERSES TRIAL COURT’S RULING TO ALLOW PLAINTIFF TO STATE A CLAIM FOR PUNITIVE DAMAGES—PLAINTIFF FAILED TO MAKE REQUISITE SHOWING UNDER SECTION 768.72(3)(B) AGAINST THE CORPORATE DEFENDANT
Cleveland Clinic Florida Health System v. Oriolo, 48 Fla. L. Weekly D203 (Fla. 4th DCA D203 2023):
The plaintiff’s husband suffered fatal brain damage from a negligent intubation. The plaintiff sued the hospital. She did not sue the allegedly “grossly negligent” providers. She then moved to add a claim for punitive damages against the hospital for the health care providers’ gross negligence.
The plaintiff alleged that the defendant actively and knowingly participated in the treatment, condoned it, etc, as found in section 768.72(3)(b). To support the claim, the plaintiff relied on comments allegedly made by the chief medical officer after the death, related to the general failures that took place, and seeking to use the incident as a teaching tool.
The trial court found that the proffered evidence showed the doctors and other health care providers were grossly negligent by putting the decedent on a floor with fewer observation checks, failing to attend to the decedent properly, etc.
The Fourth reversed for two reasons. First, it found the evidence did not rise to the level of gross negligence as a matter of law. Second, neither the Complaint, nor the proffered evidence demonstrated how the defendant’s actions “ratified or approved” the health care providers’ alleged negligent conduct.
The court also noted how actions taken after the occurrence of a tortious act, are not sufficient to support punitive damages.
Punitive damages are awarded to punish wrongdoers and to deter them from committing similar bad acts in the future, The Fourth found as a matter of law that the conduct asserted did not meet that standard.