Send the jury back!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 9

CASES FROM THE WEEK OF MARCH 1, 2024

TO PRESERVE THE ISSUE OF AN INCONSISTENT VERDICT, THE PARTY CLAIMING INCONSISTENCY MUST RAISE THE ISSUE BEFORE THE JURY IS DISCHARGED AND ASK THE TRIAL COURT TO RE-INSTRUCT AND SEND THE JURY BACK FOR FURTHER DELIBERATIONS.

Chiarella v. Ford, 49 Fla. L. Weekly D409 (Fla. 4^th DCA Feb. 21, 2024):

In this rear end collision, the 35-year-old plaintiff was rear-ended and pushed into the vehicle in front of him.

The Plaintiff was treated at an emergency room on the day of the accident and began seeing an orthopedic surgeon ten days later.  His MRI revealed that he had bulges and tears, but did not reveal an acute compression of the cervical spine.  Ultimately, however, after having flare ups from his neck and back pain, the surgeon recommended he undergo neck surgery which he had. He subsequently began having back pain and then underwent a lumbar fusion two years later. 

However, there was also evidence that the Plaintiff had pre-existing injuries from working out at the gym for which he sought medical treatment.  The Plaintiff introduced a medical bill index reflecting a total of nearly $350,000.00 in past medical expenses as well as evidence of future medical expenses that would total over $1.1 million dollars. 

The jury returned a verdict of $150,000.00. The jury also found the Plaintiff had not sustained a permanent injury. The Plaintiff argued that the verdict was inconsistent because the amount of the award necessarily had to include some degree of invasive care which would have included the surgery. However, the Plaintiff did not specifically ask the trial court to re-instruct the jury or send the case back for further deliberations.

The appellate court found that Plaintiff failed to preserve the issue of the inconsistent verdict, because to do so requires the raising of the issue before the jury is discharged, and also requires the party to ask the trial court to re-instruct the jury and send it back for further deliberations.  Litigants must assert clear and specific objections under the law to preserve issues for appeal. 

Because the Plaintiff failed to ask the trial court to re-instruct the jury and send the matter back for further deliberations, the court found the issue had not been preserved and affirmed the trial court’s denial of the motion for new trial.

TRIAL COURT ERRED IN STRIKING THE PLAINTIFF’S PLEADINGS AS A SANCTION FOR FAILING TO ATTEND A CASE MANAGEMENT CONFERENCE AFTER COUNSEL HAD BEEN PERMITED TO WITHDRAW. 

RSBD, LLC v. Velocity #1, LLC, 49 Fla. L. Weekly D419 (Fla. 4^th DCA Feb. 21, 2024):

The court reminded us that the striking of pleadings is the most extreme of sanctions for failing to comply with court orders but may be appropriate when the offending conduct is flagrant, willful or persistent. Although the sanction may be imposed for failure to secure counsel or failure to attend a Notice to Case Management Conference, it should only be employed in extreme circumstances such as when the party exhibits a deliberate and contumacious disregard for the court’s authority.

In this case, the Plaintiff had no opportunity to be heard prior to the court issuing its order striking its pleadings and discharging its liens. The motion to strike the pleadings alleged only that the Plaintiff was ordered to obtain new counsel and did not do so within the 30-day deadline. As mere negligence was the only ground noted in the court’s order, it did not suffice to justify such an extreme measure as striking the pleadings.

NO ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BASED ON LACK OF GENUINE DISPUTE OF MATERIAL FACT REGARDING DEFENDANT’S CONSTRUCTIVE NOTICE OF CLEAR LIQUID ON THE FLOOR WHICH CAUSED PLAINTIFF TO SLIP AND FALL.

Leftwich v. Walmart Stores, 49 Fla. L. Weekly D436 (Fla. 5^th DCA Feb. 22, 2024):

The trial court reviewed Walmart’s video footage of the accident.  It was undisputed that the liquid was not viewable on the video, but a clear liquid was discovered on the floor after the incident.  It was also undisputed that Walmart had no prior knowledge of the liquid.

Plaintiff described the liquid as a “clear color” that was “a pretty good-sized amount” but did not cover a whole floor tile. Although there were marks on the floor the Plaintiff maintained the fluid was clear. The Plaintiff’s adult son stated in his deposition that there were what looked like wheel marks and footprints running through it. The Plaintiff described those marks and footprints as dirty. 

Given the area of the alleged spill, a Walmart employee testified that he would have noticed the liquid had already been on the floor when he was pulling a pallet near the spill area nine minutes before the incident.

The mere presence of water on the floor does not establish constructive notice.  It is the Plaintiff’s burden under §768.0755 to prove that the business had actual or constructive notice of the dangerous condition and should have taken action to remedy it. 

To reach the Plaintiff’s desired inference, the court found a jury would have had to impermissibly stack inferences in this case where the video showed a multitude of customers standing, walking, and pushing carts through the exact spot where the liquid was found in the nine minutes between the Walmart employee leaving the area and the incident.

Because the evidence presented when viewed in the light most favorable to the Plaintiff would not allow a reasonable jury to find the dangerous condition existed for a length of time sufficient to establish constructive notice, the court affirmed the summary judgment despite a lengthy dissent. 

TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO COMPEL ARBITRATION BASED ON ITS DETERMINATION THAT THE WAIVER AGREEMENT CONTAINING THE ARBITRATION CAUSE WAS UNENFORCABLE BECAUSE THE WAIVER’S EXCULPATORY CLAUSE WAS AMBIGUOUS-ISSUE WAS FOR THE ARBITRATOR

Flying Panda Florida v. Rutherford, 49 Fla. L. Weekly D4454 (Fla. 5^th DCA Feb. 23, 2024):

The trial court denied the Defendant’s Motion to Compel Arbitration on the issue of the validity of the exculpatory clause.  There was no dispute that the Plaintiff was required to sign a document which contained a waiver to enter the Defendant’s trampoline park.

The Defendant moved to dismiss, arguing that the waiver that had been signed also contained an arbitration clause.  The Defendant asserted that because the Plaintiff admitted to completing the waiver and raised no legal argument against the enforceability of the alternative dispute resolution clause, the court had to enforce that portion of the agreement and allow the arbitrator to decide the enforceability of the waiver.

Because the Plaintiff did not challenge the validity of the exculpatory clause nor did she dispute that she signed the waiver, the claim of invalidity of the exculpatory clause as a whole had to be considered in the first instance by the arbitrator rather than the court.