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The Week In Torts – Cases from June 23, 2023
A proffer is more than an allegation
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 25
CASES FROM THE WEEK OF JUNE 23, 2023
COURT REVERSES AMENDMENT FOR PUNITIVE DAMAGES-PLAINTIFF’S PROFFER WAS INSUFFICIENT
Desanto v. Grahn, 48 Fla. Law Weekly D1198 (Fla. 4th DCA Jun. 14, 2023):
Former clients of a disbarred attorney tried to pursue a claim for punitive damages against him. The former client’s punitive damages proffer consisted almost entirely of allegations unsupported by any evidence.
The parties disagreed about what it means to “proffer” under the statute. The defendant argued that a proffer must consist of evidence and asserted that the required “reasonable showing” can be made with recorded evidence or proffered evidence but cannot consist of mere factual allegations.
The former client plaintiffs responded that a proffer does not require evidence, contending that the required “reasonable showing” may be met by presenting either evidence or anticipated evidence.
The court reminded us that punitive damages are reserved for truly culpable behavior and are intended for society to express its collective outrage against such conduct. It then advised that allegations are not evidence, and pleadings alone cannot be viewed as an evidentiary basis for punitive damages.
In this case, the former clients moved to add a claim for punitive damages before any discovery was conducted, using only the exhibits from the disciplinary proceedings to show culpable conduct. Additionally, the motion to amend was not verified, referred to no record evidence and was not supported by affidavits.
A reasonable showing by evidence in the record proffered by the plaintiff refers to actual evidence that would provide a prima facie basis to recover punitive damages. Because that was not shown in this case, the court reversed.
DEFENDANT WAIVED DEFENSE OF LACK OF PERSONAL JURISDICTION BASED ON IMPROPER SERVICE – – FILING AMENDED MOTION BEFORE THE HEARING DID NOT CURE THE WAIVER.
Retherford v. Kirkland, 48 Fla. Law Weekly D1188 (Fla. 1st DCA Jun. 14, 2023):
Rule 1.140 allows for defenses like lack of personal jurisdiction and insufficiency of service of process to be made by motion. In this case, the defendant raised the improper service argument in a related case, but not in the case before the court.
Some courts have held that when a party files and amended motion under Rule 1.140(b) before a hearing on the original motion, the party may assert a previously omitted defense and have it treated as timely. However, the Second District in Gannon v. Cuckler observed that those decisions were not based on the plain language of the Rule.
Because the plain language of the Rule does not allow an amended motion to cure the omission of an earlier raised defense, the trial court erred in considering it at all because the defendant had waived it.
TRIAL COURT ERRONEOUSLY ENTERED SUMMARY JUDGMENT FOR THE FIRST DEFENDANT WHO CRASHED INTO A MEDIAN AND CAME TO REST IN THE MIDDLE OF THE TURNPIKE, EVEN THOUGH ANOTHER VEHICLE ULTIMATELY WAS THE ONE THAT COLLIDED WITH THE OTHER STOPPED VEHICLES.
Serano v. Dickinson, 48 Fla. Law Weekly D1195 (Fla. 4th DCA Jun. 14, 2023):
The plaintiff and two defendants were involved in a multi-vehicle accident. The trial court entered summary judgment for the first vehicle, notwithstanding that the driver of that vehicle had collided with the median and came to rest in the middle of the turnpike.
The plaintiff was able to avoid that vehicle, another semi-truck was then able to avoid the plaintiff and the original vehicle, but a second semi-truck who was speeding ran into the plaintiff’s stopped vehicle.
The trial court entered summary judgment for the original vehicle, finding that an “intervening cause” had cut off the chain of proximate causation for her negligence.
The court explained that the concept of intervening cause that absolves a negligent actor, is conceptually tied into the proximate cause of elements of negligence. The question of foreseeability as related to proximate causation must be left to the fact finder to resolve.
Citing two the seminal decisions in Gibson and DOT v. Anglin, the court concluded that the trial judge improperly granted summary judgment. Viewing the facts of the case in the light most favorable to the plaintiff, a reasonable jury could conclude that the original driver’s negligence proximately caused the plaintiff’s injuries.
The trial court erred in finding as a matter of law that the driver of the second semi truck’s negligence was an intervening cause of the harm, breaking the chain of causation and relieving the original tortfeasor from liability. That driver’s negligence was a foreseeable byproduct of the original tortfeasor’s negligence.
The court observed, on an expressway or a highway with no stop lights or stop signs and a potential for highway hypnosis, a driver’s inattention can arise from a multitude of causes, including use of a cell phone, changing radio stations, falling asleep, or dealing with children fighting the back seat.
Because such inattention is a foreseeable cause of a collision with a stopped vehicle on a highway, the law permits the conclusion that the original tortfeasor’s conduct may have set in motion the chain of events that results in injury.
The tests of foreseeability does not require one to foresee exactly how an accident will unfold, because the law does not require such an absurd degree of specificity.
PLAINTIFF DID NOT WAIVE ATTORNEY/CLIENT PRIVILEGE BY ATTACHING A SINGLE NON-SUBSTANTIVE ATTORNEY/CLIENT EMAIL TO AN AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT – – INADVERTENT DISCLOSURE OF ATTORNEY/CLIENT COMMUNICATIONS DOES NOT AUTOMATICALLY CONSTITUTE A WAIVER OF PRIVILEGE.
Petzold v. Castro, Fla. Law Weekly D1216 (Fla. 2nd DCA Jun. 16, 2023):
After the plaintiff attached a single non-substantive attorney/client email to their motion for summary judgment, the defendant sought copies of all communications between the plaintiffs and their attorneys. The trial court found that the plaintiffs had waived the attorney/client privilege, and claimed that the plaintiffs’ failed to follow the procedure set forth in Rule 1.285(a) for asserting privilege over inadvertently disclosed materials, thus further waiving the privilege.
In order to assert a privilege for inadvertently disclosed materials, a party, person or entity shall within ten days of discovering it, serve written notice of the assertion of privilege on the party to whom the materials were disclosed.
The attorney in this case admitted at the hearing that he did not comply with the Rule, so the privilege had been waived as to the contents of the single already disclosed email. When a party himself or herself ceases to treat a matter as confidential, it loses its confidential character.
However, it does not follow that the discrete waiver applies to all communications between clients and their attorneys. Waiver of the privilege as to a single email is limited to that email itself.