Those arbitration clauses are a killer

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 28

CASES FROM THE WEEK OF JULY 18, 2025

TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION TO COMPEL ARBITRATION PURSUANT TO PROVISION IN LIABILITY WAIVER AGREEMENT SIGNIFYING THE DEFENDANT’S INTENTION THAT ANY CLAIM INCLUDING PERSONAL INJURY BE SUBJECT TO ARBITRATION

Urban Air Jacksonville v. Hinton, 50 Fla. L. Weekly D1523 (Fla. 5th DCA July 11, 2025):

The defendant trampoline park owner appealed the trial court’s order denying a motion to stay and compel arbitration. The plaintiff had alleged that while visiting the defendant’s premises, he slipped and fell on a liquid substance in the restroom. He alleged that the defendant negligently maintained the floors and failed to warn him of a dangerous condition.

Defendant moved to compel arbitration based on the liability waiver that the plaintiff had signed. The agreement provided, in relevant part, that the trampoline park could potentially be a dangerous activity, noting the chance that a child could be seriously injured or killed by participating in the activity because of the dangers inherent in it.

Within the waiver, there was a statement that any dispute arising out of or related to the agreement, the premises, or personal injury, would be subject to arbitration.

The plaintiff argued that the agreement did not specifically cover a slip and fall in the bathroom, and that because the agreement was written so broadly there had to be a nexus between the activity being governed and the arbitration clause. He asserted there was no way he could have known what rights he was contracting away.

The defendant agreed that the paragraph was broadly written but argued that its breadth covered a slip and fall in the bathroom.

The court found that the trial judge erred in determining that the claims did not have a significant relationship to the agreement. Before the plaintiff could participate in the activities and gain access to the facility, he was required to sign the agreement.

While it is true that the use of a bathroom did not involve the many activities listed in the agreement, the agreement also listed use of locker room area, dining area, sidewalks, and other portions of the premises. Here, there was not a “total absence of any mention of rights” regarding personal injury or negligence actions. In fact, the agreement applied to the plaintiff whether he participated actively or passively, even including injuries from slipping, falling or tripping.

Thus, the court found there was a significant relationship between the plaintiff’s claims and the agreement, thereby expressly requiring that the claims be subject to arbitration.

WHERE STATUTE ALLOWS FOR THE RECOVERY OF PUNITIVE DAMAGES BUT DOES NOT SET FORTH THE PROCEDURE FOR PLEADING THEM, PLAINTIFF MUST COMPLY WITH SECTION 768.72 AND RULE 1.190

Gomes v. Maniglia, 50 Fla. L. Weekly D1486 (Fla. 3rd DCA July 9, 2025):

The plaintiff sued his stepbrother under the vulnerable adult statute, asserting that the stepbrother had exploited the plaintiff for his personal benefit and for the benefit of the defendant’s mother (the vulnerable adult’s stepmother).

Four years into the litigation, the plaintiff filed a motion for entry of an order determining a reasonable basis for claiming punitive damages. The plaintiff’s motion purported to set forth a detailed proffer of evidence in support of punitive damages. Rather than attaching the proposed amended complaint to the punitive damages motion, the plaintiff simply attached a copy of his initial complaint to the motion.

When a plaintiff sues under a statute that authorizes recovery of punitive damages but does not provide the procedure for pleading such entitlement, the plaintiff must comply with the requirements for seeking punitive damages set forth in Section 768.72 and Rule 1.190.

To that end, a plaintiff who wishes to recover punitive damages in a civil case must first seek and obtain leave of court to assert such a claim. The trial court must strike a punitive damage claim asserted in the initial complaint as unauthorized, notwithstanding the likelihood that the court will subsequently authorize the plaintiff to amend the initial complaint to include a claim for punitive damages.

Further, when a plaintiff moves to amend his or her complaint to assert a claim for punitive damages, the plaintiff must provide the trial court and the defendant with a copy of the proposed amended complaint that includes a reasonable basis for the recovery of such damages. The plaintiff’s failure to file a proposed amended complaint that provides a reasonable basis for recovering punitive damages is reversible error.

Here, while the trial court properly struck the punitive damages claim from the initial complaint because it was not authorized, it committed reversible error by subsequently treating the initial complaint as the proposed amended complaint and granting the punitive damages motion. Without the benefit of a proposed amended complaint, the trial court could not undertake its gatekeeper role to determine whether there was a reasonable basis for the recovery of punitive damages, and it would be unreasonably difficult for the defendants to prepare and argue for their position.

TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION FOR DIRECTED VERDICT AFTER JURY VERDICT ASSIGNING NO NEGLIGENCE TO PLAINTIFF AND AWARDING HER DAMAGES FOR PAST AND FUTURE MEDICAL EXPENSES AND PAIN AND SUFFERING—HOWEVER, NEW TRIAL STILL WARRANTED BASED ON PLAINTIFF’S COUNSEL’S CLOSING ARGUMENT

Loren v. Once Upon a Time Group, 50 Fla. L. Weekly D1494 (Fla. 4th DCA July 9, 2025):

In this premises liability case arising from the plaintiff’s fall in a restaurant, the jury returned a verdict for the plaintiff, finding she bore no comparative negligence, and awarding her $437,000 in damages. The defendant moved to set aside the verdict in accordance with its motion for directed verdict or in the alternative, moved for a new trial.

The trial court granted the motion to set aside the verdict. It also, though, granted the motion for a new trial due to improper and prejudicial statements and arguments made by plaintiff’s counsel.

A motion for directed verdict should only be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. In a slip and fall case involving a transitory substance in a business, the breach element of the plaintiff’s claim is constrained by Section 768.0755, which requires proof of actual or constructive knowledge of a dangerous condition.

In this case, the court concluded that the plaintiff did present sufficient evidence to survive a motion for directed verdict, finding there was both evidence of constructive knowledge, and that the dangerous condition occurred with regularity and was therefore foreseeable.

However, the court still affirmed the granting of a new trial based on three comments made by the plaintiff’s attorney in closing argument, which the court found that taken collectively and in totality deprived the restaurant of a fair trial. Each of the comments drew an objection and a motion for mistrial.

In the first offending comment, the plaintiff’s attorney read an excerpt from the bar manager’s deposition to the jury that had not been introduced into evidence because the parties agreed to exclude it. In the second, the plaintiff’s attorney told the jury that a doctor had testified that the cost of a knee replacement surgery for the plaintiff would be over $100,000 despite the plaintiff’s earlier withdrawal of her claim for future medical expenses, and the lack of any trial evidence as to the cost of a knee replacement surgery. In the third comment, the plaintiff’s counsel suggested that the restaurant might have withheld or destroyed video surveillance evidence without any evidence to support such an allegation.

A stronger showing is required to reverse an order allowing a new trial (than the showing needed to reverse an order denying a motion for new trial).

When reviewing an order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge abused his or her discretion.

In light of this deferential standard, the court found it could not say that the trial court had abused its discretion in granting a new trial.

TRIAL COURT ERRED IN EXCLUDING EVIDENCE BASED ON BINGER WITH RESPECT TO THE PLAINTIFF’S TREATING PHYSICIAN

Aponte v. Walmart Stores, 50 Fla. L. Weekly D1496 (Fla. 4th DCA July 9, 2025):

The plaintiff fell on algae buildup at the defendant’s garden center. She sued for damages for her loss of earning capacity, as well as for past, present, and future medical expenses.

The plaintiff’s treating orthopedic doctor was a key witness who intended to testify on causation, permanency, and the projected cost of the plaintiff’s future medical treatment including a knee surgery and eventual knee replacement. The plaintiff had timely disclosed the doctor as both a fact and expert witness.

Plaintiff’s disclosure indicated that the doctor had already examined the plaintiff, and that the doctor was expected to testify as to the cause of the plaintiff’s injuries, treatments, diagnosis, and prognosis, as well as the reasonableness and necessity of the care and treatment in the past and future. However, the doctor did not see the plaintiff for the first time until a week after the disclosures were submitted.

The plaintiff submitted the report from the original exam two months later, and the orthopedist was not recommending surgery at that time. However, three months later, and a week before trial, the orthopedist examined the plaintiff for a second time. During the doctor’s deposition, he stated that the plaintiff’s knee injury was permanent, and reasonably certain to require future treatment, and addressed future procedures that would be necessary.

On the first day of trial, defendant moved to strike the doctor’s testimony arguing it was surprised by the deposition testimony because he did not form his opinion until after he had examined the plaintiff the second time, and did not provide a medical record of the second visit so his testimony was outside the realm of a treating physician and he was unable to state with certainty that plaintiff would have had surgery.

The trial court granted the defendant’s motion, excluding any testimony regarding the need for future treatment and the anticipated cost, and finding that plaintiff had misrepresented that the doctor had examined the plaintiff at the time of the disclosure, thereby violating Binger by giving new opinions in his deposition so shortly before trial.

The court reversed the rather small verdict for the plaintiff. It agreed with the plaintiff that the trial court had erred in concluding that Binger applied and in excluding the doctor’s testimony. Binger’s purpose is to prevent trial by ambush, not to punish parties found timely disclosing witnesses who offer opinions developed through continued treatment.

A treating physician may offer opinions based on treatment rendered and on a review of the medical records. Contrary to the trial court’s findings, this doctor did not change his opinion but instead formed it based on his subsequent examinations as well as on a review of the plaintiff’s prior treatment which is standard practice.

An expert’s opinion is substantially changed when it reverses from an earlier opinion. In determining whether to exclude or limit such untimely disclosed testimony, the trial court must consider (1) the opponent’s ability to cure the prejudice, (2) whether the proponent’s noncompliance with the pretrial order was in bad faith, and (3) whether the trial would be disrupted and any other relevant factor.

In this case, the doctor explained he had reviewed treatment options with the plaintiff during the original examination and noted that he had not ruled out future surgery. Three months later, after the pain had not diminished, the doctor said the plaintiff would need surgery. The court noted that whether a substantial reversal of opinion had occurred was “arguable.”

However, exclusion of a party’s sole witness on a major component of damages is an extreme sanction that must be exercised with extreme caution. In this case, the doctor’s testimony was pivotal to the plaintiff’s request for damages, and the defendant was not deprived of an opportunity to prepare for the testimony. Nor did the defendant show that the plaintiff had acted in bad faith. The court found the exclusion of the testimony constituted reversible error

The trial court also applied an improper legal standard to the future medical expenses’ testimony. The court excluded evidence of future medical expenses on the grounds that the “doctor could not state with certainty that plaintiff would undergo the recommended treatments”. That is not the correct legal standard, and future medical expenses are recoverable when they are reasonably certain to be incurred. Because the doctor had testified to a reasonable degree of medical certainty that the plaintiff would need future care, including the procedures that were testified about, the court erred in rejecting that testimony.

The court also reversed the trial judge for impermissibly granting directed verdicts for the defendant (ruling that the plaintiff had suffered no damages from two prior surgeries and had not suffered future pain and suffering).

Directed verdicts are reserved for cases where no view of the evidence could support the non-moving party’s claim, which was not the case here. In granting the directed verdicts, the trial judge improperly invaded the jury’s role and deprived the plaintiff of the opportunity to present a complete damages case. The court reversed and remanded for a new trial.