Lots of hoops before you can depose the boss

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 2

CASES FROM THE WEEK OF JANUARY 12, 2024

ERROR TO COMPEL DEPOSITION OF DEFENDANT AUTOMOBILE MANUFACTURER CEO REGARDING A PHONE CONVERSATION – – ONCE DEFENDANT ESTABLISHED THAT CEO WAS A HIGH-LEVEL OFFICER AND PRODUCED A DECLARATION EXPLAINING HIS LACK OF UNIQUE PERSONAL KNOWLEDGE, THE TRIAL COURT WAS REQUIRED TO ISSUE A PROTECTIVE ORDER UNLESS PLAINTIFF COULD DEMONSTRATE HE HAD EXHAUSTED ALL OTHER DISCOVERY, THAT DISCOVERY WAS INADEQUATE, AND THE CEO HAD UNIQUE KNOWLEDGE

Tesla, Inc. v. Monserratt, 49 Fla. L. Weekly D85 (Fla. 4^th DCA Jan. 3, 2024):

An eighteen year old crashed his Tesla driving at 116 mph. Both the driver, and the decedent in the wrongful death case died as a result of the crash.  The complaint alleged that a Tesla service technician deactivated the 85-mph top speed limiting software after the driver complained he could not accelerate over that speed.

Following the crash and ensuing media coverage, Elon Musk called the driver’s father to extend his condolences.  During the approximately twenty-minute phone call, Musk said something to the effect that maybe it was a mistake to remove the limiter, and maybe Tesla should review and revise its policies.  Musk and the defendant driver’s father also exchanged a number of emails where Musk had conveyed information learned in Tesla’s initial investigation into the crash.

The plaintiff sought to depose Elon Musk based on that phone conversation.  Musk served a declaration stating he had no independent recollection of the phone call beyond what was in the email communications and his extension of condolences.

In lieu of the deposition, Tesla agreed to have Mr. Musk respond directly to requests for admissions and interrogatories about the conversation.  He reiterated what he had said previously about his lack of knowledge.  The trial court granted the motion to compel the deposition of Mr. Musk, and Tesla petitioned for a writ of certiorari. 

In 2021 the Florida Supreme Court amended Rule 1.280(h) to expressly adopt the “apex doctrine” in the corporate context, protecting high level officers from being subject to depositions. The rule allows a protective order when the high-level person files an affidavit stating that he or she has unique personal knowledge of the issues being litigated.  If the officer meets that burden of production, the party seeking the deposition must demonstrate it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique personal knowledge of discoverable information. 

Once Tesla established that Musk is a high-level officer and produced his declaration, the trial court was required to issue a protective order because the plaintiff failed to meet his burden, leading the court to quash the order compelling the deposition.

ERROR TO GRANT SUMMARY JUDGMENT BECAUSE PLAINTIFF COULD NOT STATE HOW LONG THE PUDDLE OF WATER HAD BEEN ON THE FLOOR – – PLAINTIFF’S TESTIMONY WAS SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WHERE THERE WAS MORE THAN JUST A DESCRIPTION OF THE WATER

Carpio v. Western Beef of Florida, 49 Fla. L. Weekly D86 (Fla. 4^th DCA Jan. 3, 2024):

The plaintiff testified she was exiting a walk-in freezer in front of the seafood department at a store, and fell to her knees causing injuries. She said she felt a splash of water as she fell, and saw dark dirty water on the floor with shopping cart wheel marks going through the water.  She also noted she saw footprints in the water, and described that it was a puddle and not just drops; a lot of water.  Several store employees saw her fall as corroborated by the store manager who said one or two employees were always stationed at the seafood department.  There were no photos or videos. 

The defendant moved for summary judgment arguing that the plaintiff did not present evidence that the store had actual or constructive knowledge, because she could not meet her burden regarding how long the water was on the floor, and couldn’t establish defendant’s knowledge of water under section 768.0755. 

The statute provides that a person injured in a slip and fall must prove that the business establishment had actual or constructive knowledge of a dangerous condition, and should have taken action to remedy it.  Constructive knowledge is shown either by a dangerous condition existing for a length of time that in the exercise of due care the establishment should have known of the condition, or that the condition occurred with regularity and therefore was foreseeable.

A plaintiff’s testimony regarding the condition and age of a foreign substance alone is not sufficient to create an issue of fact to preclude summary judgment.  Instead, a plaintiff’s testimony must be accompanied by something more; namely some additional fact or facts from which a jury can reasonably conclude that the substance was on the floor long enough to establish constructive knowledge under the statute. 

Florida courts have found that a plaintiff’s testimony alone can be sufficient to meet the “plus” requirement. Here, the record evidence was detailed enough that it could have enabled a jury to view the summary judgment evidence and infer that water was on the floor long enough that the business should have detected it.

TRIAL COURT ERRED BY GRANTING PLAINTIFFS MOTION FOR JNOV AFTER JURY RETURNED A COMPLETE DEFENSE VERDICT – – REVERSIBLE ERROR NOT TO EVALUATE THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY

Carrasquillo v. Metzler, 49 Fla. L. Weekly D91 (Fla. 4^th DCA Jan. 3, 2024):

After a defense verdict, the plaintiff moved for judgment notwithstanding the verdict as to both defendant doctors in a medical malpractice case. 

Despite the conflicting evidence presented at trial as to the standard of care, the court concluded that the facts reflected that the defendant doctors failed to recognize the urgency for a chest CT scan. Yet the plaintiff’s own expert acknowledged that the MRI report described the condition as “chronic” as opposed to “acute,” and that there were no words on the report such “urgent” or “stat.” 

Simply put, the expert’s testimony together with the defendant doctors’ denials created conflicts in the evidence which only the jury–and not the trial court–could resolve.  Accordingly, by granting the motion for JNOV as to one of the doctors, the trial court committed a reversible error in failing to resolve the conflicts in evidence in a light most favorable to the non-moving party.

ANOTHER REVERSAL OF AN AMENDMENT FOR PUNITIVE DAMAGES—APPELLATE COURT FINDS THE ALLEGATIONS AND EVIDENTIARY PROFFER WERE INSUFFICIENT TO ESTABLISH THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE REQUIRED FOR PUNITIVE DAMAGES

Pinnacle Property Management Services v. Forde, 49 Fla. L. Weekly D98 (Fla. 4^th DCA Sep. 13, 2023):

The defendant managed an apartment complex where the decedent was killed during a burglary. The burglar entered the open window of the decedent’s apartment and shot him fatally. The plaintiff claimed the property manager failed to provide adequate security. 

The plaintiff moved for punitive damages, stating that on the date of the murder the entrance gate was not working, and the burglars entered through a gate which had been broken for months. Also, there was evidence that the defendant had allegedly ignored complaints from residents about criminal activities resulting from the lack of security, including from the broken gate.  Plaintiff supported her motion with three emails and the deposition transcripts of three witnesses.

The emails contained various observations of non-residents getting through the gate, a retired police detective offering to provide security services to the property manager and being turned down, and other complaints. 

The property manager testified that the gate was for entry and exit, and its purpose was not for security, even though she was aware of car burglaries in the area before the murder, and the only security camera was at the office area.

In reviewing this evidence, the court concluded that it did not rise to the level of either “intentional misconduct” or “gross negligence.”  To get to that level of egregiousness, the plaintiff must show culpable conduct of a corporate defendant at both the employee level and at the corporate level.

Here, the plaintiff proffered no evidence to show that the property manager’s officers directors or managers knowingly condoned ratified or consented to the allege gross negligence, only proffering a single email that had been sent to a vice president months before the murder, complaining about the broken gate.

Plaintiff also proffered no evidence to establish that the recipient of the email was a managing agent of the defendant.