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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 12

CASES FROM THE WEEK OF MARCH 22, 2024

TRIAL COURT PROPERLY ENFORCED A SETTLEMENT AGREEMENT AND DISMISSED THE PLAINTIFF’S CASE — EMAILS BETWEEN ATTORNEYS CAN CONSTITUTE AN ENFORCEABLE SETTLEMENT AGREEMENT — ALSO, PLAINTIFF WAIVED THE ATTORNEY-CLIENT PRIVILEGE BY DISCUSSING CONFIDENTIAL COMMUNICATIONS WITH HIS FORMER COUNSEL DURING HIS TESTIMONY.

Portner v. Koppel, 49 Fla. L. Weekly D599 (Fla. 4th DCA Mar. 13, 2024):

The plaintiff filed an action against the defendants for a wrist injury he sustained when the defendant’s dogs charged at him in their home. The parties negotiated a settlement agreement arising out of those injuries. However, the Plaintiff claimed there was not a settlement agreement because he wanted a “net” settlement of $100,000 instead of the “gross” settlement of $100,000 negotiated by his former attorney.

The defendant’s attorney testified regarding text messages and emails exchanged between himself and the plaintiff’s former attorney. The correspondence showed that the defendant’s counsel said he was authorized to settle for $100,000 and provided a draft settlement agreement.

The plaintiff testified that he told his former attorney’s associate that he would settle for a net amount of $100,000. When the associate informed the plaintiff of the $100,000 offer, the plaintiff testified he was not clear if it was net, and testified he did not accept the $100,000 because the “net” was actually much less. Plaintiff’s former attorney testified that the plaintiff had unambiguously authorized him to settle for $100,000.

The appellate court found the plaintiff was not credible. It further found that competent, substantial evidence supported the trial court’s findings that the parties had agreed to all essential terms that were incorporated into the final settlement agreement. There was also no abuse of discretion in allowing testimony about once privileged communications because the plaintiff waived the privilege by claiming that his former counsel lacked the authority to settle his case.

TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF LANDLORD THAT LEASED THE PREMISES.

Arias V. Codealtex, LLC, 49 Fla. L. Weekly D581 (Fla. 3rd DCA Mar. 13, 2024):

The plaintiff was injured while operating machinery at his place of employment. His employer leased the premises where the Plaintiff was injured, from the defendant.

The appellate court affirmed the entry of summary judgment for the landlord. Once a landlord delivers possession and control of leased premises to a tenant, the landlord is not liable for injuries to the property or to individuals who are on the premises with the permission of the tenant.

Premises liability is not predicated on ownership of the property; instead, the duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property.

IN CASES INVOLVING A NON-RESIDENT PLAINTIFF WHO IS A UNITED STATES CITIZEN, THE PRESUMPTION IN FAVOR OF THE PLAINTIFF’S INITIAL CHOICE OF FORUM IS ALWAYS ENTITLED TO GREAT DEFERENCE — TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION TO DISMISS ON THE BASIS OF FORUM NON CONVENIENS. 

Rieber v. Yamazaki, 49 Fla. L. Weekly D607 (Fla. 5th DCA Mar. 15, 2024):

The plaintiff, a Texas resident, filed a complaint against a Florida resident in Brevard County. The complaint arose out of the plaintiff and defendant meeting in Costa Rica, where they became involved in a romantic relationship that went awry. The plaintiff filed a civil action against the defendant in Belize, where there was an assault and damage to property, and then filed a case in Brevard County.

The plaintiff alleged that the defendant was a resident of Brevard and maintained a business there. The defendant moved to dismiss for forum non conveniens. However, even the defendant acknowledged that Florida would be a more convenient forum for her than Belize, Still, she contended that Belize was the more convenient forum because that was where the attack had occurred.

The trial judge applied the Kinney test, which affords a strong presumption to the plaintiff’s choice of forum when evaluating the balance of private interests.

Because the defendant failed to produce any sworn affidavits or sworn evidence to support the motion to shed light on the factors considered under Kinney, and because the trial court’s order did not contain any findings showing that it weighed the defendant’s own private interests when employing the Kinney analysis, the information available to the trial court showed that Florida was the more convenient forum, and the one the plaintiff chose, rendering dismissal improper.

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BASED ON ITS DETERMINATION THAT THE PLAINTIFF WAS THE EMPLOYEE OF AN INDEPENDENT CONTRACTOR INJURED IN THE COURSE AND SCOPE OF PERFORMING HIS CONTRACTUAL DUTIES, AND THAT NO REASONABLE JURY COULD FIND THAT THE ALGAE THE PLAINTIFF FELL ON WAS ANYTHING BUT OPEN AND OBVIOUS.

Williams v. Weaver, 49 Fla. L. Weekly D610 (Fla. 5th DCA Mar. 15, 2024):

The plaintiff was an employee of a lawn service hired by the defendant to spray the grass at the defendant’s home. In his deposition, the plaintiff testified that the grass on the defendant’s lawn was wet, and when he approached the deck on the front lawn to drop off job-related paperwork, he slipped on dark greenish algae, which he actually had seen.

The trial court found that the plaintiff was an employee of an independent contractor, and no reasonable jury could find the algae was anything but open and obvious.

While property owners who employ independent contractors will not be held liable for injuries sustained by the employee of an independent contractor, there are two exceptions: (1) when the owner actively participates or exercises direct control over the work, or (2) when the property owner negligently creates or negligently approves a dangerous condition.

Here, the plaintiff had not begun spraying the lawn at the time he was hurt, and as such, his injuries were not sustained in the course of performing his work under the contract. Therefore, the defendant’s duty should have been analyzed under the separate framework governing a landowner’s duty to business invitees.

Landowners owe an invitee two independent duties: (1) to give warning of concealed perils which are known or should be known to the owner, but which are not known to the invitee, and (2) to maintain the premises in a reasonably safe condition. If there is an obvious danger where the dangerous condition of the object is obvious, there is no duty to warn. Still, there is a separate and distinct duty to maintain the premises in a reasonably safe condition.

Because genuine issues of material fact existed regarding whether the defendant’s duties to warn and/or maintain his premises existed, the court reversed the summary judgment.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY AUTHORIZING DEFENDANTS TO ISSUE SUBPOENAS FOR “ANY AND ALL” MEDICAL RECORDS FOR “THE LAST TEN YEARS,” WITHOUT LIMITING THE SCOPE OR CONDUCTING AN IN-CAMERA INSPECTION — PLAINTIFF MAINTAINS A RIGHT TO PRIVACY IN MEDICAL RECORDS THAT ARE IRRELEVANT.

Dominguez v. Omana, 49 Fla. L. Weekly D617 (Fla. 6th DCA Mar. 15, 2024):

The plaintiff sued the defendant for medical malpractice for damaging nerves in her arm while performing a procedure to remove a nodule from her armpit. The defendants gave notice of their intent to serve subpoenas on several non-parties requesting the production of the plaintiff’s medical records. The subpoena sought “any and all” records “for the last ten years” that pertained to the plaintiff. The plaintiff filed objections and the defendants moved to overrule.

Plaintiffs argued the subpoenas were overbroad, and invaded her constitutional right to privacy because it was highly probable that irrelevant medical records would be produced.

She asked the trial court to sustain her objections or alternatively, to conduct an in-camera inspection. The trial court found that the plaintiff waived her right to privacy by putting her physical condition at issue and found that the subpoenas were likely to lead to the discovery of admissible evidence. The court also denied her request for an in-camera inspection.

The court issued the writ. It found that the plaintiff established irreparable harm because the improper disclosure of medical records caused a material injury that could not be remedied on appeal.

While the court found that the records could be calculated to lead to the discovery of admissible evidence, it agreed with the plaintiff that it was highly probable that irrelevant medical records would accompany the relevant ones under the breadth of the subpoenas, requiring the trial court to limit the scope or to conduct an in-camera inspection. The court expressed its understanding about the burden that in-camera inspections could put on busy trial judges, but wrote that such a burden may be necessary to protect privacy rights.