Being on the phone is not THAT bad

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 27

JULY 5, 2024

ERROR TO GRANT PLAINTIFF’S LEAVE TO AMEND HAD CLAIM FOR PUNITIVE DAMAGES BASED ON DEFENDANT’S HANDLING OF CELL PHONE JUST PRIOR TO CRASH – DESPITE DEFENDANT’S VIOLATION OF FEDERAL REGULATIONS IN USING THE HANDLED CELLPHONE, THERE MUST BE ADDITIONAL ACTS SHOWING THAT CELLPHONE USAGE WAS RECKLESS OR A CONSCIOUS DISREGARD OF OTHER’S SAFETY

Mercer v. Saddle Creek Transportation, Inc., 49 Fla. L. Weekly D1396 (Fla. 6th DCA June 28, 2024):

In the predawn hours of the morning, the defendant was driving his semi-truck down a rural two-lane highway in foggy and smoky conditions (captured by the dash cam). He struck the plaintiff’s vehicle, sending it into the car in front of her.

The plaintiff sought punitive damages. She proffered an electronic version of the driver’s dash cam video, which she alleged showed the driver using a cell phone with his hands despite the foggy and smoky conditions a few seconds before the crash. The defendant admitted that 33 to 35 seconds before the crash that the visibility went from “clear” to zero because someone had ignited an unannounced and uncontrolled burn which created a fog.

The trial court granted the motion for punitive damages, reasoning that it had watched the dash cam video and saw the driver handling his cell phone before the crash and having it in an actively engaged position in violation of federal regulations governing the truck’s operation.

In reversing the amendment, the appellate court reminded us that punitive damages are a form of extraordinary relief for acts and omissions so egregious as to jeopardize not only the particular plaintiff in the lawsuit but the public as a whole, such that a punishment, and not merely compensation, must be imposed to prevent similar conduct in the future.

While the federal regulations forbid commercial truck drivers from using handheld cell phones except for emergencies (49 CFR 392.82), the mere use of a cell phone while driving a truck does not automatically provide a reasonable basis for the plaintiff to seek punitive damages. There must be some additional act that shows the cell phone usage was reckless or showing conscious disregard or indifference to others to support the gross negligence needed under section 768.72(2)(b).

MUST FILE FULL-SIZE TRANSCRIPTS WITH THE COURT

In Re: Amendments to Florida Rules of Civil Procedure 1.080 and 1.310, 49 Fla. L. Weekly S183 (July 3, 2024): 

The Florida Supreme Court has adopted a new subdivision of Rule 1.310, and now Rule 1/310(f)(3)(C) requires that transcripts filed with the court must be in full page format unless the court authorizes the use of condensed transcripts.

APPELLATE COURT UPHOLDS TRIAL COURT’S STRIKING OF DEFENDANT’S PLEADINGS

King Tyson, Inc. v. Perez, 49 Fla. L. Weekly D1370 (Fla. 3d DCA June 26, 2024):

The trial court struck the defendant’s pleadings because it had failed to comply with discovery requests. The defendant failed to demonstrate that the trial judge had abused her sound discretion in determining the sanctions for its repeated discovery violations.

Notably, the court reminded us that it was unnecessary for the trial court to provide written findings pursuant to Kozel, as that case standard applies only to the alleged misconduct of a party’s counsel, not to misconduct of the party itself. When a party’s own misconduct is involved, the analysis falls under the Mercer/Ham rubric, mandating a determination and findings of the party’s willful or deliberate disregard of the court’s authority.

The appellate court found that the trial judge had not abused her sound discretion and made a conscious determination that the defendant’s failure to respond to interrogatories was more than a mistake, neglect, or inadvertence.

TRIAL COURT ERRED IN REFUSING TO GIVE THE STANDARD JURY INSTRUCTION ON VIOLATION OF A REGULATION AS EVIDENCE OF NEGLIGENCE IN A CASE ARISING OUT OF THE NEGLIENT PLACEMENT OF MINOR CHILDREN IN FOSTER CARE IN VIOLATION OF FLORIDA ADMINISTRATIVE CODE SECTION 65C-28.004

Long v. Family Support Services of North Florida, 49 Fla. L. Weekly D1380 (Fla. 5th DCA June 28, 2024): 

The plaintiffs were a brother and sister who were in Florida’s foster care system for some time and were adults at the time of the lawsuit. While children, the brother repeatedly sexually molested and physically abused the sister and the two engaged in sexual activities with each other as children, while under the supervision of the entities charged with their care.

The agency where the children were placed was aware that the brother repeatedly sexually and physically abused his sister and that the brother had repeatedly sexually molested a younger male cousin and attempted to have sex with his mother. A safety plan was created to prohibit the brother and sister from sharing a room and forbade them from being left alone together. The brother received therapy while at the youth ranch. Despite attempts for different placements, the abuse continued even after a couple adopted the two siblings.

The plaintiffs sued the agencies and subcontracting agencies, alleging negligence in their placements. They asserted that the agencies violated the applicable versions of Florida Administrative Code rule 65C-28.004, in making these inappropriate placements, resulting in great emotional and psychological harm to both plaintiffs.

The trial court admitted the regulation into evidence during the jury trial but refused to give a requested standard jury instruction under 401.9, based on the violation of the regulation as being evidence of negligence. The trial court determined that the regulation applied literally only to the person making the placement, notwithstanding that neither the rule nor the relevant statutes define who the person making the placement is.

The jury reached a defense verdict.

The appellate court reversed. It found that the jury had not been given all the legal guidance it needed and that the failure to give the instruction could not be seen as “harmless error.”

The appellate court also admonished the trial judge for sua sponte seeming to assist the defense by providing the proper bases for the defendants’ objections in what appeared to be the trial court “assisting” the defendant.