The Week In Torts – Cases from June 10, 2022
Hidden traps aren’t so obvious
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 23
CASES FROM THE WEEK JUNE 10, 2022
COURT REVERSES SUMMARY JUDGMENT REVERSED IN A PREMISES LIABILITY CASE INVOLVING A MAN WHO JUMPED INTO A SWIMMING POOL WITH TWO SHALLOW ENDS – UNDER THE CIRCUMSTANCES, THE TRIABLE ISSUE OF FACT EXISTED AS TO WHETHER THE POOL AND POOL AREA CREATED A HIDDEN DANGER OR TRAP
Pozanco v. FJB 6501, Inc., 47 Fla. L. Weekly D1163 (Fla. 3rd DCA June 1, 2022):
The plaintiff was visiting a friend who was housesitting for the defendant. After several hours of drinking on the pool deck, the friend encouraged the plaintiff to go swimming in defendant’s pool.
The swimming pool had two sets of steps on either end, but one side was obstructed by the placement of four large planters placed on the corners. Being able to see only one set of steps, led the Plaintiff to conclude that said steps were in the shallow end (plaintiff justifiably believed that pools generally have only one shallow end and one deep end, and it was also difficult to properly gauge the depth of the pool at night due to poor lighting and a lack of warning signs.
The plaintiff jumped into the pool head first on the side he believed was the deep end. As it turned out both ends were shallow and the plaintiff was seriously injured.
The appellate court reversed the trial court’s ruling entering summary judgment based on the open and obviousness of the hazard. The court explained that even when dangerous conditions are open and obvious, landowners may still be found to owe a duty of care where an uncommon design or some aspect of the condition, create a hidden danger, trap or optical illusion that is not reasonably discoverable by an ordinarily prudent invitee.
The court agreed that residential pools typically present certain obvious dangers that are easily discoverable by invitees. However, under the circumstances of this case, the defendant failed to conclusively rebut (the trial court applied the pre-2021 summary judgment standard in effect at the time of the hearing) the plaintiff’s theory that this particular pool constituted a hidden danger or trap, raising questions about whether the plaintiff’s injury was foreseeable to create a duty to warn.
TRIAL COURT ERRED BY RULING THAT INSURANCE POLICY DID NOT PERMIT INSUREDS TO VIDEO AND AUDIO RECORD THE INSURER’S AGENT’S INSPECTION OF A PROPERTY LOSS, WHERE THE POLICY WAS SILENT AS TO SUCH RECORDINGS – INSURANCE ADJUSTER HAD NO LEGITIMATE EXPECTATION OF PRIVACY WHILE INSPECTING THE INSURED’S HOME
Gesten v. American Strategic Insurance Corp., 47 Fla. L. Weekly D1178 (Fla. 4th DCA June 1, 2022):
The policy in the case was silent as to whether video or audio recording was allowed. At most, the policy provided that after a loss, insureds must show the damaged property as often as the insurance company reasonably required.
The policy said nothing, however, about who may attend the inspection and whether either party has the right to record said inspection.
The Fourth reiterated its holding from the 2021 Silversmith decision, noting that insurance adjusters do not have a right to privacy while in an insured’s home for an inspection.
COURT REVERSES JURY’S VERDICT FINDING CLAIM BARRED BY ACCORD AND SATISFACTION
Lemon v. Peoples Trust Insurance Co., 47 Fla. L. Weekly D1198 (Fla. 5th DCA June 3, 2022):
Plaintiffs’ home had sustained damage in Hurricane Matthew. After cashing their insurer’s check covering the cost to repair the roof, fence, and master bedroom ceiling, the plaintiffs subsequently discovered additional damage to their home and sought to supplement their damage claim with the insurer.
The insurer refused, asserting the plaintiffs’ act of cashing the original check constituted full settlement of all claims, rendering the supplemental claim barred by accord and satisfaction. The trial court denied the plaintiffs’ motion for directed verdict on the issue, and then the jury ruled that accord and satisfaction barred the case.
The court looked to §627.70132, Fla. Stat., addressing supplemental claims, as well as to the policy addressing supplemental claims. The plaintiffs asserted that their supplemental claim could not have been the subject of accord and satisfaction – either common law or statutory – as a matter of law, because they had the right to submit a supplemental claim for newly discovered damage.
Based on both reasons, the court agreed that plaintiffs were entitled both to a directed verdict and/or a judgment notwithstanding the verdict on the affirmative defense of accord and satisfaction, reversing the final judgment entered for the insurance company.
WHEN A JUDGE HAS MADE EXTRANEOUS COMMENTS CHALLENGING THE ALLEGATIONS IN A MOTION TO DISQUALIFY REGARDING THE JUDGE’S RELIGIOUS BELIEFS AND IN SUPPORT OF THE DECISION TO DENY THE MERITS OF THE MOTION, A WRIT OF PROHIBITION IS APPROPRIATE
Wagner v. State, 47 Fla. L. Weekly D1207 (Fla. 2nd DCA June 3, 2022):
A criminal defendant filed a writ of prohibition seeking review of the trial court’s order denying his motion to disqualify the judge. The defendant asserted that the trial judge’s extrajudicial activities placed him in fear that he could not receive fair treatment in the litigation of his DUI case. The motion detailed the judge’s participation in a Christian faith-based organization, and described certain political and religious statements the judge had made during a taped “Sunday Sermon” including topics such as socialism, no fault divorce, and abortion.
Based on those statements, the defendant asserted he was objectively fearful that the court was biased and prejudiced against cases like his involving alcohol.
The trial judge denied the motion as being legally insufficient. However, as part of the ruling, the trial judge chose to cite specific cases and make certain analogies that surreptitiously refuted the defendant’s allegations of bias. These statements reflected that the judge took issue with the motion.
Because the order went beyond merely ruling on the legal sufficiency of the motion, the court granted the writ of prohibition.