The Week In Torts – Cases from February 4, 2022
It’s just plain old, ordinary negligence.
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 5
CASES FROM THE WEEK FEBRUARY 4, 2022
NO ERROR IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRE-SUIT REQUIREMENTS FOR MEDICAL MALPRACTICE — PLAINTIFF ALLEGED SUFFICIENT FACTS TO PLEAD ACTION AS SOUNDING IN ORDINARY NEGLIGENCE
University of Miami v. Bloomer, 47 Fla. L. Weekly D284 (Fla. 3rd DCA Jan. 26, 2022):
Plaintiff asserted that he sustained injuries when a surgical table collapsed underneath him while being sedated for eye surgery. The defendant, Bascom Palmer moved to dismiss, asserting the complaint was deficient under Chapter 766, because it related to medical equipment used during a surgical procedure, and was thus a medical malpractice claim. The trial court denied the motion, finding that the plaintiff had stated a claim for ordinary negligence.
While Chapter 766 embodies pre-suit requirements that apply to a claim arising out of the rendering of or the failure to render medical care or services, merely because a wrongful action occurs in a medical setting, does not necessarily mean that it involves medical malpractice. Rather, the wrongful act must be directly related to the improper application of medical services, and to the use of professional judgment or skill.
Here, the plaintiff did not allege any action or inaction resulting from medical judgment or skill. Instead, he asserted that the surgical table collapsed under him during his sedation. That the table was being used for a medical procedure at the time of the injury does not, without more, establish a prima facie medical malpractice claim, resulting in a denial of the defendant’s petition for writ of certiorari.
NO ABUSE OF DISCRETION IN FINDING THAT DEFENDANT ESTABLISHED EXCUSABLE NEGLECT–TESTIMONY WAS THAT EMPLOYEE SERVED WITH PROCESS COULD NOT RECALL BEING SERVED, BECAUSE HE HAD JUST RETURNED TO WORK FOLLOWING A MONTH’S LONG HOSPITALIZATION AND HEAVY MEDICATION
Barg v. Casablanca on the Bay, 47 Fla. L. Weekly D285 (Fla. 3rd DCA Jan. 26, 2022):
The plaintiffs appealed an order setting aside a final default judgment.
At the evidentiary hearing, the defendant employee who was served with the process, testified that he did not recall being served because he had just returned to work following a long hospitalization, and that he had been prescribed heavy medication, including oxycodone.
The trial court concluded that these facts established excusable neglect, and did not err in making that credibility determination.
SCHOOL DID NOT OWE A DUTY TO THE PLAINTIFF FOR NEGLIGENCE OCCURRING AT A PLACE WHERE SHE WAS DOING COMMUNITY SERVICE, EVEN THOUGH THE PLACE WAS ON A PRE-APPROVED LIST FOR COMMUNITY SERVICE OPPORTUNITIES –THE COMMUNITY SERVICE WAS NOT SCHOOL SPONSORED OR RELATED
Neff v. Archdiocese of Miami, 47 Fla. L. Weekly D292 (Fla. 3rd DCA Jan. 26, 2022):
The plaintiff was a sophomore in high school at the time she sustained injuries while performing community service at an equestrian center.
Her private Catholic high school required its students to perform community service to graduate. The school provided students with a list of 45 “pre-approved service opportunities.” The program also allowed students to select service opportunities that were not listed.
The plaintiff selected her opportunity from the list. While there, she was left unsupervised with a horse that reared up and came down on her foot causing injury. She and her parents sued the Archdiocese, as well as her high school, and the equestrian center.
The plaintiffs alleged that the Archdiocese owed them two distinct legal duties: (1) a duty of reasonable care in compiling a list of service opportunities; and (2) a duty of supervision because their required community service was “school sponsored” or “school related”.
The Archdiocese and the high school jointly moved for summary judgment arguing that they owed no duty to the student at the time of the incident, because they exerted no authority or control over the equestrian center. The trial court agreed.
The plaintiffs relied on the Florida Supreme Court’s decision in Nova Southeastern v. Gross, where the Supreme Court found the university could be found liable for assigning a student to an internship site that it knew to be dangerous, without warning the student.
The Third District observed that while there were some similarities between that case and this one, the most obvious distinction was the undisputed fact that the high school did not exert nearly the same level of control as Nova did in Gross. Unlike Gross, where students had to select internships from the list and be placed by Nova that had the final say, here, the students could freely choose among 45 organizations, and the high school did not have the final say in the location.
The court also found there was no duty of supervision, because the community service was not “school sponsored”. Even though “being school related” is a broader standard, that too was not satisfied.
School related requires some connection to the school’s academic and extracurricular programs, but here, although the community service was required for graduation, there was nothing to indicate that the equestrian center had any affiliation with the high school, or that the high school reserved any control over it.
The Third District affirmed the summary judgment entered for the defendants.