The Week In Torts – Cases from July 1, 2022
You will have to do better than that!
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 26
CASES FROM THE WEEK JULY 1, 2022
TRIAL COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING THE DEPOSITION OF CORPORATE OFFICER – OFFICER’S AFFIDAVIT WAS INSUFFICIENT TO PREVENT DEPOSITION UNDER APEX DOCTRINE WHERE IT CONTAINED ONLY A BALD ASSERTION OF IGNORANCE, AND DID NOT EXPLAIN THAT THE OFFICER LACKED UNIQUE, PERSONAL KNOWLEDGE OF THE ISSUES BEING LITIGATED
Karisma Hotels & Resorts, Corp, Ltd. v. Hoffman, 47 Fla. L. Weekly D1360 (Fla. 4th DCA June 22, 2022):
While the Florida Supreme Court amended Rule 1.280(h) to expressly adopt the apex doctrine in the corporate context, it did so by establishing specific affidavit requirements for an officer seeking to avoid a deposition.
Per the new rule, an officer’s affidavit must explain that the officer lacks unique personal knowledge of the issues being litigated, and must contain an explanation of the relationship between the litigation and the officer’s apex position, so that the court can sufficiently evaluate the applicability of the officer’s personal knowledge.
In this case, there was simply a statement that the officer lacked unique or personal knowledge of the issues being litigated, rendering the affidavit insufficient. The trial court did not depart from the essential requirements of law in compelling the deposition.
ON MOTIONS FOR REHEARING AND CERTIFICATION, COURT CERTIFIES QUESTION REGARDING WHETHER FAULT MAY BE CONSIDERED IN TORT ACTIONS INVOLVING THE DRAM-SHOP EXCEPTION CONTAINED IN SECTION 768.125, FLA. STAT.
Main Street Entertainment v. Faircloth, 47 Fla. L. Weekly D1368 (Fla. 1st DCA June 22, 2022):
The Court certified the following as a question of great public importance:
WHETHER THE COMPARATIVE FAULT STATUTE, SECTION 768.81, FLORIDA STATUTES, APPLIES TO TORT ACTIONS INVOLVING THE DRAM-SHOP EXCEPTION CONTAINED IN SECTION 768.125, FLORIDA STATUTES, AGAINST A VENDOR WHO WILLFULLY AND UNLAWFULLY SOLD ALCOHOL TO AN UNDERAGE PATRON, RESULTING IN THE PATRON’S INTOXICATION AND RELATED INJURY?
COURT REITERATES MOST OF PRIOR RULING IN OPINION ON REHEARING—HOLDS NO JURISDICTION OVER THE FOREIGN CORPORATION DUE TO LACK OF MINIMUM CONTACTS
Robinson Helicopter, Co. v. Gangapersaud, 47 Fla. L. Weekly D1347 (Fla. 2nd DCA June 22, 2022):
A man was flying the helicopter owned by his dental practice, when the engine unexpectedly lost power and forced him to land it in an empty field. Over the following days, the man communicated with defendant Robinson — the manufacturer based in California — as well as with FSH Maintenance, a local service provider, in an effort to repair the helicopter. Robinson provided FSH with instructions for diagnosing and repairing the helicopter, and also sent replacement parts to potentially fix the problem.
Several days later, mechanics from FSH replaced the helicopter’s fuel pump with a replacement part sent by Robinson. FSH decided it would fly the helicopter to its facility for further inspection. Unfortunately during the flight, the engine failed again, forcing the pilot to attempt an emergency landing in a busy intersection in Tampa, which in turn caused one of the helicopter’s rotor blades to strike the utility pole, further causing a piece of the blade to break off and fly through the windshield killing the decedent.
The plaintiff sued several defendants, including the manufacturer based in California. The manufacturer moved to dismiss, submitting sworn affidavits contesting jurisdiction.
The plaintiff asserted that the manufacturer’s involvement in the negligent diagnosis, repair and transport of the helicopter brought it within the ambit of §48.193(1)(a)2, which provides for specific jurisdiction over a nonresident who commits a tortious act within the state. Additionally, the plaintiff also maintained that specific jurisdiction existed under §48.193(1)(a)6, because a helicopter which was manufactured by the manufacturer caused injury in the state. The trial court denied the motion to dismiss.
The Second District reversed. It found first that the complaint failed to sufficiently allege that defendant committed a tortious act here under section 48.193(1)(a)2, because the only allegations were that the foreign defendant responded to communications from the owner and local service provider regarding instructions and spare parts to fix the noted problems.
The court also ruled that the defendant manufacturer lacked minimum contacts as it had not purposefully directed activities to Florida. Rather, Robinson sold the helicopter to a dealer in Indiana before it was sold to the operator’s employer and later brought to Florida. The plaintiff argued that purposeful availment was evidenced by the existence of three Robinson authorized dealers and eleven authorized service centers in Florida, which allowed the manufacturer’s helicopters to obtain maintenance all over the state. As the estate put it, the defendant sold its products knowing they would end up in Florida.
Relying on the U.S. Supreme Court’s recent decision in Ford v. Montana, the court observed that there must be a strong relationship among the defendant, the forum, and the litigation, which provides the essential litigation of specific jurisdiction. As the court wrote: “Robinson Helicopter Company is no Ford Motor Company,” and found that the manufacturer had not systematically served a market in Florida for the type of helicopter involved in the case. Additionally, the aircraft had not even been sold in Florida, having been sold in Indiana and then brought to Florida.
The court also concluded that the manufacturer lacked contacts with Florida that arose out of or related to the causes of action in the case. As explained, the manufacturer did not direct the subject helicopter into Florida, nor had it continuously exploited the state’s market such that it must reasonably anticipate being haled into court (there were only 55 of its helicopters in the state).
In fact, the few contacts the defendant had with Florida, which could plausibly be said to arise out of or relate to the case, were actually created by the repair company and the owner who reached out to the manufacturer for advice in repairing the helicopter.
On rehearing, the court reversed the ordering dismissing the action, finding there was no tortious act committed in this state, and the Defendant lacked minimum contacts anyway.
COURT AFFIRMS DISMISSAL OF LEGAL MALPRACTICE CASE FINDING ATTORNEY HAD NO DUTY TO PREVENT THE DECEDENT/CLIENT’S SUICIDE
Andreasen v. Kline Glasser Park & Lowe, 47 Fla. L. Weekly D1351 (Fla. 3rd DCA June 22, 2022):
In 2008, an uninsured motorist collided with a car driven by the decedent, rendering him permanently disabled. After several years of litigation against his insurer for denying stacking coverage, and then against his former attorney for allegedly failing to allow the statute to run on his claims, the decedent died by suicide.
The decedent’s brother brought an action alleging negligence and legal malpractice against the former attorneys, asserting their actions were the proximate cause of the decedent’s death. The trial court dismissed the action with prejudice for failing to state a cause of action, finding that the attorneys owed the decedent no duty to prevent his suicide, and finding that the alleged malpractice was not the proximate cause of the death.
As a general rule, there is no liability for someone else’s suicide or suicide attempt in the absence of a specific duty of care. The complaint did not allege that the decedent’s attorneys were aware that he was suicidal, or that they had any duty, obligation, or legal ability to exercise any supervision or control over his daily activities during the period they were representing him.
While the district courts have found that medical professionals may in some circumstances have a duty to intervene if they become aware of a potentially suicidal patient, no state court has extended a similar duty to attorneys, and this court declined to do so.
ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF INSURER WHILE DEPOSITION OF KEY WITNESS WAS PENDING – ALTHOUGH PLAINTIFF FAILED TO FILE A FORMAL MOTION FOR CONTINUANCE, THE INSURED’S COUNSELS’ RESPONSE TO THE SUMMARY JUDGMENT MOTION, COUPLED WITH THE PHONE CALL TO OPPOSING COUNSEL SEEKING TO RESET THE HEARING UNTIL AFTER THE NOTICED DEPOSITION WAS COMPLETED, WAS SUFFICIENT TO FIND ENTRY OF SUMMARY JUDGMENT PREMATURE
Sacramento v. Citizens Property Ins. Co., 47 Fla. L. Weekly D1352 (Fla. 3rd DCA June 22, 2022):
A trial court simply cannot ignore a pending deposition of a witness whose testimony would most likely raise a genuine issue of material fact, when the deposition has been set or is in the process of being set, and all parties are aware of it.
LAWSUIT AGAINST PET GROOMING FACILITY AND ITS OPERATOR VIABLE, NOTWITHSTANDING THAT PLAINTIFF DID NOT SUE THE DOG’S OWNER
Ramos v. Bastos, 47 Fla. L. Weekly D1355 (Fla. 3rd DCA June 22, 2022):
While the plaintiff’s dog was being groomed, another dog bit his dog. The plaintiff sued the pet grooming facility and the operator, alleging that the defendants owed a duty of care to all business invitees lawfully on the property, to operate the pet grooming service in a manner that avoids injury to persons and property.
The trial court entered summary judgment for the defendants, finding that they failed to sue the owner of the attacking dog who was an indispensable party. The trial court cited §767.04 and §767.01 regarding strict liability of the owner.
The appellate court reversed. It found that while an owner may be strictly liable, that does not mean that a plaintiff may not bring a common law negligence claim against keepers or custodians of dogs (who are not named in the dog bite statutes).
TRIAL COURT ERRED BY SUA SPONTE TRANSFERRING VENUE WITHOUT ANY SHOWING THAT THE CHOSEN VENUE WAS IMPROPER OR TRANSFER WAS APPROPRIATE ON FORUM NON CONVENIENS GROUNDS
Total MD Orthopedics v. GEICO, 47 Fla. L. Weekly D1316 (Fla. 4th DCA June 22, 2022):
TRIAL COURT ABUSED DISCRETION BY DENYING MOTION TO VACATE DISMISSAL ASSERTING A CALENDARING ERROR BY ATTORNEY’S STAFF FOR FAILURE TO ATTEND A CASE MANAGEMENT CONFERENCE
Pierre v. American Security Ins. Co., 47 Fla. L. Weekly D1361 (Fla. 4th DCA June 22, 2022):
The court considered the case en banc to recede from language in Arriechi v. Bianchi, 318 So. 3d 4 (Fla. 4th DCA 2021) as it applied to cases involving plaintiffs’ cases. The court distinguished Arriechi, because it involved the absence of an affidavit to support the motion and a delay in the attempt to set aside the judgment. The court found that the four month delay was neither reasonable time nor compliant with due diligence under Rule 1.540(b).
In this case, the plaintiff moved timely (five weeks) to vacate the final judgment. Additionally, the court wrote to explain that a plaintiff cannot “have a meritorious defense” and so the failure to assert one cannot be a basis for rejecting the affidavit when a plaintiff moves to set aside a default.
TRIAL COURT SHOULD HAVE DISMISSED PLAINTIFF’S CASE FOR FAILURE TO COMPLY WITH STATUTORY PRESUIT REQUIREMENTS – THE PRESUIT EXPERT OPINION LETTER WAS NOT VERIFIED WITH AN OATH, AND THE EXPERT FAILED TO INCLUDE ANYTHING TO BE CONSTRUED AS A WRITTEN DECLARATION UNDER SECTION 92.525(2)
Andary v. Walsh, 47 Fla. L. Weekly D1370 (Fla. 2nd DCA June 24, 2022):
Under Section 766.203(2), prior to issuing a notification of an intent to initiate medical negligence litigation, a claimant has to conduct an investigation, and provide corroboration of reasonable grounds to initiate a medical negligence litigation, which requires a “verified written medical expert opinion from a medical expert.”
Here, the plaintiff provided a corroborating letter from a physician detailing the physician’s opinions regarding the negligence in the case. The letter lacked any language that could reasonably be construed as a “verification” on the part of the doctor.
While the physician’s signature was notarized, there was no attestation, authentication, oath or verification on what the notarization was there for. By all appearances, the letter was simply stamped, dated, and signed.
Because this letter was unverified, it did not satisfy the demands of section 766.203(2)(b). It also failed to fulfill section 92.525(1)(a) because it did not appear that the doctor took an oath or made an affirmation regarding the letter, nor did it contain anything that would constitute a written declaration.