We make the rules around here

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 27

CASES FROM THE WEEK OF JULY 7, 2023

WHILE CERTIORARI REVIEW IS NOT AVAILABLE TO REVIEW A TRIAL COURT’S DETERMINATION REGARDING THE QUALIFICATIONS OF PLAINTIFF’S CHOSEN CORROBORATING EXPERT UNDER CHAPTER 766 – – THE COURT DECIDED TO AMEND RULE 9.130(a)(3) TO PROVIDE FOR INTERLOCUTORY REVIEW OF ORDERS BASED ON THE QUALIFICATIONS OF A CORROBORATING EXPERT WITNESS UNDER SECTION 766.102(5)-(9). 

University of Florida Board of Trustees v. Carmody, 48 Fla. Law Weekly S150 (Fla. Jul. 6, 2023):

The Medical Malpractice Act requires that a plaintiff provide an affidavit on an expert whose qualifications meet certain criteria, and who is able to corroborate the basis of the plaintiff’s claim. 

The defendants in this case moved to dismiss the action against them, asserting that the plaintiff’s proposed expert did not meet the statutory requirements.  The trial court denied the motion.  The First District said the case was not reviewable by a writ of certiorari, and the supreme court agreed (with that precise ruling). 

The case involved an internal medicine specialist retained to testify against a nurse practitioner. The trial court found that he could. 

The defendants contended that the 2013 amendments to the Medical Malpractice Act erased whatever discretion trial courts had in making pre-suit expert qualification determinations.  The supreme court disagreed, concluding that while the amendments limited the trial court’s discretion in assessing qualifications of a proposed expert, they did not erase that discretion.  The court noted that the amendments to subsection (5)(a) that any corroborating expert who is to testify against a specialist must now specialize in the “same” as opposed to “same or similar” specialty. The court found these amendments demonstrated the legislature’s elimination of language that implicitly empowered trial courts to exercise discretion in malpractice claims, but further noted there is still some discretion left in (5)(c).

The supreme court wrote that these requirements are jurisdictional in large part, because they prohibit the filing of any action unless the plaintiff meets them and shows that there was a reasonable investigation undertaken to determine a good faith belief that there was negligence. 

The case is mostly about the procedural nuances of addressing these kinds of arguments.  The court observed that in its current form, Rule 9.130 did not provide a basis for a non-final appeal and a writ of certiorari is not proper either.   That is why on its own motion, the Supreme Court amended the Rule to provide for an interlocutory review of such a non-final order.

FLORIDA SUPREME COURT SUA SPONTE (AND OUTSIDE THE USUAL CHANNELS) AMENDS FLA. R. APP. PRO. 9.130 TO ALLOW COURTS TO IMMEDIATELY REVIEW NON-FINAL ORDERS THAT DENYING MOTIONS TO DISMISS ON THE BASIS OF THE QUALIFICATIONS OF A CORROBORATING EXPERT IN MEDICAL MALPRACTICE CASES. 

In Re: Amendment to Florida Rule of Appellate Procedure 9.130, 48 Fla. Law Weekly S150 (Jul. 6, 2023):

In conjunction with its ruling on this issue in the Carmody case, the Florida Supreme Court on its own motion and without consultation with the appellate rules committee, simultaneously issued this opinion advising that it had decided to simply amend Florida Rule of Appellate Procedure 9.130(a)(3), to allow defendants to seek immediate interlocutory review of a non-final order denying a motion to dismiss, based on the qualifications of a corroborating expert witness under subsections 766.102(5)-(9) Florida Statues, in a medical malpractice case.

The Rule provides interlocutory review only when these particular motions to dismiss are denied, as any order granting such a motion would generally result in the plaintiff’s case being dismissed with prejudice anyway, and appealable as a final order.

In his dissenting opinion, Justice Labarga admonished that the Court should refer a rule change of this magnitude to the appropriate committee for consideration and recommendation prior to its adoption.

ANY SANCTIONS AGAINST A PARTY FOR VIOLATING A PRE-TRIAL ORDER REQUIRE NOTICE AND AN OPPORTUNITY TO BE HEARD TO COMPLY WITH THE TENETS OF KOZEL.

Fritz v. Tower Hill, 48 Fla. Law Weekly D1292 (Fla. Jun. 28, 2023). 

ERROR TO DENY CITY’S MOTION TO DISMISS ON SOVEREIGN IMMUNITY GROUNDS – – NO REASONABLE JURY COULD FIND THE OFFICER WHO COLLIDED WITH THE PLAINTIFF, WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT, THEREBY FATALLY UNDERMINING THE CLAIM FOR VICARIOUS LIABILITY.

City of Winter Park v. Veigle, 48 Fla. Law Weekly D1311 (Fla. 5^th DCA Jun. 30, 2023): 

A Winter Park police officer got into a car accident while driving home from work. The injured driver sued the City of Winter Park alleging that it was vicariously liable for the officer’s driving. 

The City moved for summary judgment based on sovereign immunity, arguing that the officer was not acting within the course and scope of his employment when the accident occurred. 

The trial judge found that because the officer was in uniform, whether he was in the course and scope was a fact question.  The appellate court disagreed. The record showed indisputably that the officer was involved in a car accident in a different county than the one he worked in, was off duty, and was on his way home from work. 

Simply because the officer was driving a patrol vehicle did not change the analysis.  The Florida Supreme Court has held that merely driving a government owned vehicle which the government has authorized for personal use, does not transform an otherwise off the clock government employee into one acting within the scope of employment.   

Section 768.28(9)(a) provides both immunity from liability and an immunity from suit. The benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial.  As a matter of law, the City was entitled to sovereign immunity from suit. 

ERROR TO GRANT SUMMARY JUDGMENT FOR DEFENDANT RESTAURANT BASED ON A FINDING THAT A WEIGHTED SIGN BASE WITHOUT A SIGN WAS AN OPEN AND OBVIOUS CONDITION THAT ELIMINATED THE DEFENDANT’S DUTY TO WARN.

Frazier v. Panera, LLC, 48 Fla. Law Weekly D1313 (Fla. 5^th DCA Jun. 30, 2023):

Plaintiff fell on a weighted sign base located at a Panera after she parked her car.  Plaintiff alleged that the weighted base had no sign and was hidden from her view, and that Panera should have anticipated and expected that invitees walking onto the sidewalk would encounter the base. 

The trial court granted summary judgment for Panera. It found that the plaintiff failed to look down, and that was what caused her to trip.  The court concluded the base was open and obvious. 

The court found that the undisputed evidence that Panera placed a weighted sign base on the sidewalk without a sign attached to it is not so common that people encounter it on a daily basis.  The evidence was that the employees were in the process of removing the base, indicating that it was not intended to be left there in the first place. 

Even if the base was an open and obvious condition, it was a separate and independent issue as to whether Panera created a hazardous condition and generally failed to maintain safe premises under the circumstances.  While the fact that an obvious danger discharges a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain his premises. 

When a plaintiff alleged a failure to maintain the premises, the obvious nature of the danger creates an issue of fact regarding a plaintiff’s own comparative negligence.  The trial court’s order failed to address Panera’s duty to maintain the premises in a reasonably safe condition even though Panera conceded that it placed the base in the location where the plaintiff tripped and fell.