The Week In Torts – Cases from January 7, 2022
Why wait to challenge the punies?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 1
CASES FROM THE WEEK JANUARY 7, 2022
NEW PROVISION ADDED TO RULE 9.130 AUTHORIZING NON-FINAL APPEALS OF ORDERS EITHER GRANTING OR DENYING MOTIONS FOR LEAVE TO AMEND TO ASSERT CLAIMS FOR PUNITIVE DAMAGES
In Re: Amendment to Florida Rule of Appellate Procedure 9.130, 47 Fla. L. Weekly 1 (Fla. Jan. 6, 2022):
The Florida Supreme Court amended Rule 9.130 to include a new subdivision (a)(3)(G) authorizing appeals of non-final orders that either grant or deny motions for leave to amend to assert claims for punitive damages. The amendment takes effect on April 1, 2022.
NO ERROR IN CONCLUDING THAT EVIDENCE DID NOT ESTABLISH DEFENDANT’S ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A DANGEROUS CONDITION, RESULTING IN SUMMARY JUDGMENT FOR DEFENDANT
Vargas v. Dolphin Mall Associates, 47 Fla. L. Weekly D10 (Fla. 3rd DCA Dec. 22, 2021):
Based on the length of time that the purportedly dangerous condition had existed before the accident occurred, in conjunction with the size, nature, and apparent risks of the area in question, the court concluded that the trial court did not err in concluding that the evidence was insufficient to establish that the defendant had actual or constructive knowledge of a dangerous condition, requiring it to take remedial action. Under §768.0755(1), Fla. Stat. (2021). Therefore, the court affirmed the entry of summary judgment.
TRIAL JUDGE’S COMMENTS CONCERNING THE EVIDENCE, MADE BEFORE PETITIONERS HAD AN OPPORTUNITY TO PRESENT THEIR ARGUMENT, COULD REASONABLY BE INTERPRETED AS THE JUDGE “PRE-JUDGING” THE MERITS OF THE UNDERLYING CLAIMS
Milan v. Fanning, 47 Fla. L. Weekly D15 (Fla. 3rd DCA Dec. 22, 2021):
In determining the legal sufficiency of a motion for disqualification, the test is whether the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial.
While the trial judge’s comments in this case may not have been intended to reflect the judge’s belief as to the merits of the underlying claims, the question of disqualification focuses not on what the judge intended, but rather on how the message is received and the basis of the feeling. While a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to “pre-judge” the case.
In this case, it was clear from the transcript that the trial judge heard and saw evidence regarding the incident, but it was only the Respondent’s evidence. The comments concerning the evidence made before the Petitioners even had an opportunity to present their argument could reasonably be interpreted to mean that the judge had crossed the line from forming mental impressions, to prejudging the issue.
DEFENDANT WAS ENTITLED TO AN AWARD OF TAXABLE COSTS PURSUANT TO RULE 1.420, FOLLOWING THE PLAINTIFFS’ NOTICE OF A VOLUNTARY DISMISSAL WITHOUT PREJUDCE
Lennox National Accounts Services v. Claire, 47 Fla. L. Weekly D30 (Fla. 4th DCA Dec. 22, 2021):
Shortly before a motion for summary judgment in a slip and fall case, the plaintiffs filed a notice of voluntary dismissal without prejudice. Following the dismissal, the defendant filed a motion to tax costs which the trial court denied.
Florida Rule of Civil Procedure 1.420(d) requires that costs in any action dismissed under the rule shall be assessed, and that a cost judgment be entered after the action concludes.
“HIMALAYA” CLAUSE IN CRUISE SHIP TICKET DID NOT APPLY TO THE DEFENDANT WHO WAS AN INDIRECT SUPPLIER OF THE CRUISE SHIP, AND NOT ENGAGED IN THE TYPE OF MARITIME ACTIVITY THAT ONE WOULD REASONABLY EXPECT THE TICKET CONTRACT WOULD COVER
Aquachile, Inc. v. Williams, 47 Fla. L. Weekly D30 (Fla. 4th DCA Dec. 22, 2021):
The plaintiff alleged that she became severely ill after being served contaminated fish onboard a Royal Caribbean cruise ship. She alleged that the fish was originally sourced by the defendant, and sold to at least one other company before it was ultimately sold to Royal Caribbean to be served to passengers.
She sued the defendant and two other companies in the supply chain for strict liability, negligence, violations of Florida’s Food Safety Act, and breaches of implied and express warranties.
Pursuant to the contract/forum selection clause in the “guest ticket booklet,” the defendant supplier moved to dismiss the case, arguing it was entitled to enforce the forum selection clause pursuant to the “Himalaya clause,” as a supplier of Royal Caribbean. The court ruled that the clause did not apply to the defendant, because it was an indirect supplier to the cruise line and not engaged in the type of maritime activity that one would expect would be covered by the ticket contract. The court also ruled that the Himalaya clause was not reasonably communicated to the plaintiff because of its font size and other type face characteristics, and ambiguous language.
The Fourth District affirmed the denial of the defendant’s motion to dismiss for improper venue. The Himalaya clause did not reflect a clear intent to extend the cruise line’s rights and defenses under the contract to parties like the defendant, and also failed to reasonably communicate that intent to the plaintiff.
TRIAL COURT ERRED IN GIVING STANDARD JURY INSTRUCTION 401.20(a) WITHOUT MODIFYING OR REVISING IT TO REFLECT CURRENT SLIP AND FALL LIABILITY LAW, NECESSITATING REVERSAL
North Lauderdale Supermarket v. Puentes, 47 Fla. L. Weekly D44 (Fla. 4th DCA Dec. 22, 2021):
The plaintiff fell on an oily substance and sued the defendant. The defendant objected to the non-modified use of the standard jury instruction 401.20(a), arguing the instruction was inconsistent with current premises liability law and §768.0755, Florida Statutes (2014), and further arguing that the negligent maintenance language needed to be removed or revised before the instruction could be given to the jury.
The defendant asserted that to be consistent with the statute, the instruction had to be modified to focus on whether the defendant negligently failed to correct a dangerous condition about which the defendant knew or should have known in the use of reasonable care, or whether it failed to warn the claimant of a dangerous condition about which it had or should have had greater knowledge of than the plaintiff.
The plaintiff argued that the standard jury instruction was correct and the trial court agreed.
The Fourth District pointed out that §768.0755 differs from its predecessor statute, §768.0710, because it does not allow liability based solely on the business establishment’s general failure to maintain the premises. Instead, §768.0755 requires the plaintiff to prove that the business establishment had actual or constructive notice of the dangerous condition before liability may be found.
While the standard jury instructions were modified with a note to reflect the statutory change, the instruction itself was not. While the defendant’s motion for new trial was pending before the trial court, the Florida Supreme Court approved the committee’s recommended amendment of instruction 401.20(a), where the court noted it did not foreclose either party from requesting additional and alternative instructions, or to contest the legal correctness of the instructions (specifically instruction 401.20(a).
Because the instruction was incompatible with the law governing post-July 1, 2010 slip and falls on the transitory foreign substances in a business establishment, the court found the instruction should not have been given without modification, reversing for a new trial.
DEFENDANT RESTAURANT NOT ENTITLED TO SUMMARY JUDGMENT IN SLIP AND FALL CASE WHEN IT FAILED TO PROVIDE EVIDENCE THAT IT DID NOT CONTROL THE SIDEWALK IN FRONT OF ITS RESTAURANT – NEITHER OWNERSHIP OF PREMISES NOR THE PROVISIONS OF RESTAURANT’S LEASE RESOLVED THE ISSUE OF WHETHER THE DEFENDANT HAD CONTROL OF THE PREMISES
City of Naples v. Chops City Grill, 47 Fla. L. Weekly D70 (Fla. 2nd DCA Dec. 29, 2021):
Both the City of Naples and the plaintiff challenged a partial final judgment entered in favor of the restaurant defendant in the plaintiff’s negligence action.
The trial court found that the defendant had no duty to maintain, but the restaurant failed to show conclusively that it was the City that owned the property and owed the duty to the plaintiff.
Duty in a premises liability case is not dependent upon ownership of the premises, but rather on whether the party has the ability to exercise control of the premises. A party that has control, has the duty to keep the premises in good repair.
Although the defendant argued that the provisions of its lease alleviated its duty, when a party exercises control over property, there can be a duty to maintain the premises in a reasonably safe condition.
In this case, the defendant failed to meet its burden to establish both the absence of negligence and of its control over the area of the fall. Because there were issues of fact, summary judgment was improper.