Punitive damage law restored

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 23

CASES FROM THE WEEK OF JUNE 12, 2026

FLORIDA SUPREME COURT HOLDS THAT WHEN A TRIAL COURT CONSIDERS WHETHER TO ALLOW A PUNITIVE DAMAGES CLAIM, IT MUST NOT WEIGH THE EVIDENCE NOR ATTEMPT TO DETERMINE WHETHER THE CLAIMANT CAN ULTIMATELY PROVE PUNITIVE DAMAGES BY CLEAR AND CONVINCING EVIDENCE IN EVALUATING THE MOTION TO AMEND

Perlmutter v. Federal Insurance Co., 51 Fla. L. Weekly S163 (Fla. June 11, 2026):

The Florida Supreme Court used this decision as an opportunity to articulate and clarify the standard a trial court must apply when deciding whether to permit a party to amend a pleading to assert a claim for punitive damages under section 768.72, Florida Statutes.

The underlying litigation arose out of a contentious dispute involving a defamation arising out of very serious allegations of awful conduct and counterclaims brought by the defendant. Based upon evidence developed during discovery, the Plaintiffs sought leave to amend their pleadings to add claims for punitive damages, which based on the heinousness of the evidence, the trial court granted.

The Fourth District, sitting en banc, reversed. It concluded that before allowing a punitive damages claim, the trial court had to determine whether a reasonable jury, considering all the evidence presented by both sides, could ultimately find by clear and convincing evidence that punitive damages were warranted. Based on conflict, the Fourth District certified the issue to the Florida Supreme Court.

The Supreme Court rejected the Fourth District’s interpretation and explained the purpose of section 768.72.

Before a plaintiff may plead punitive damages and obtain discovery into a defendant’s financial worth, the Legislature requires the plaintiff to make a reasonable evidentiary showing supporting such a claim. The statute protects defendants from the burden and potential abuse associated with unsupported punitive damage allegations while still permitting legitimate claims to proceed.

The Court emphasized that the statute creates only a “pleading-stage” gatekeeping function, where the trial court plays a considerably limited role in evaluating the evidence.

The supreme court explained that the trial court should consider only the evidence submitted or identified by the claimant seeking punitive damages. The trial court does not determine witness credibility, resolve factual disputes, or weigh conflicting evidence. Nor is the opposing party entitled to submit competing evidence for the trial court to weigh at that stage.

The motion to amend stage when it comes to punitive damages does not ask the trial judge to conduct a mini-trial, or task it with deciding whether punitive damages ultimately will be awarded.

Instead, the trial court simply asks whether a reasonable person could conclude, viewing the claimant’s evidence in the light most favorable to the claimant, whether the statutory requirements for punitive damages are satisfied. The trial court is not asked to determine whether the plaintiff can ultimately establish entitlement to punitive damages by clear and convincing evidence. That heightened burden of proof applies only at trial.

The Court explained that section 768.72(2), which establishes the clear-and-convincing standard, governs what the trier of fact must ultimately find before punitive damages may actually be awarded. Nothing in the statutory language imports that trial burden into the earlier pleading determination required by section 768.72(1).

Accordingly, the Supreme Court answered the certified question in the negative, quashed the Fourth District’s decision, approved the Second and Fifth District decisions applying the less demanding standard, and remanded for reconsideration under the proper legal test.

LANDLORD COULD OWE DUTY TO RESTAURANT MANAGER WHO SLIPPED ON WATER FROM ROOF LEAK WHERE LEASE GAVE LANDLORD EXCLUSIVE CONTROL OVER ACCESS TO THE ROOF

Hale v. Sleiman Enterprises, Inc., 51 Fla. L. Weekly D1152 (Fla. 5th DCA June 5, 2026):

The plaintiff managed a Domino’s Pizza restaurant operating under a commercial lease with the defendant landlord. After water began leaking from the roof into the restaurant’s kitchen, the plaintiff placed garbage cans beneath the leak to catch the water. Because the lease provided that only the defendant or its designated roofing contractor could access the roof, the restaurant could not investigate the source of the leak itself, and instead reported the condition to the defendant.

Approximately one week later, the plaintiff observed no active leaking and believed the problem had been corrected. He removed the garbage cans. Shortly thereafter, while walking through the kitchen, he slipped on a wet area of the floor that he had not seen and suffered injuries.

The plaintiff sued the defendant for premises liability, alleging that the defendant negligently failed to timely investigate and correct the source of the leak.

The defendant moved for summary judgment, arguing that the water originated from a defective hood vent rather than the roof itself. Under the lease, maintenance of the hood vent was the tenant’s responsibility. Accordingly, the defendant argued that it owed no duty to the plaintiff.

The trial court agreed and entered summary judgment. The Fifth District reversed. It noted that the existence of a legal duty is a question of law and a duty may arise whenever a defendant’s conduct creates a foreseeable zone of risk posing a general threat of harm to others.

Here, although the lease required the tenant to maintain the hood vent, the lease simultaneously prohibited the tenant from accessing the roof to determine whether the hood vent or some other condition was causing the leak. Only the defendant landlord or its designated roofing contractor could enter the roof to investigate.

Because the defendant retained exclusive authority over access to the roof, the plaintiff and the restaurant could not determine the source of the leak or repair any roof-related condition without the defendant’s involvement.

The appellate court concluded that those facts created a duty of reasonable care on the part of the defendant to timely investigate and address the source of the leak.

The court also rejected the defendant’s alternative argument that the wet condition was open and obvious. Even where a dangerous condition is open and obvious, that circumstance may eliminate a duty to warn but does not eliminate the separate duty to maintain property in a reasonably safe condition.

Finding that the trial court incorrectly concluded that the defendant owed no duty as a matter of law, the Fifth District reversed the summary judgment and remanded the case for further proceedings.