The Week In Torts – Cases from March 24, 2023
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FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 12
CASES FROM THE WEEK OF MARCH 24, 2023
NO ERROR IN TRIAL COURT’S DECISION TO DENY DEFENDANT’S MOTION FOR LACK OF JURISDICTION – – THE RECORD SUPPORTED A REASONABLE INFERENCE THAT THE DEFENDANT “PURPOSELY AVAILALED” ITSELF OF THE MARKETS OF THE UNITED STATE AND FLORIDA – – ADDITIONALLY, DEFENDANT’S ACT OF “CREATING, DEPUTIZING AND UTILIZING” ITS AMERICAN SUBSIDIARY QUALIFIED AS MARKETING THE PRODUCT THROUGH A DISTRIBUTOR WHO AGREED TO SERVE AS A SALES AGENT AND PROVIDED THE “ADDITIONAL CONDUCT” NECESSARY TO ESTABLISH SPECIFIC JURISDICTION.
Mazda Motor Corp. v. Triche, 48 Fla. L. Weekly D544 (Fla. 3rd DCA Mar. 15, 2023):
The Plaintiff sued Mazda Motor Corp., a company based in Japan. Plaintiff alleged that a Mazda dealership in Florida sold the Mazda vehicle to a Florida resident, and when another driver rear ended the decedent’s vehicle, it burst into flames on the streets of Florida, killing its owner.
Mazda Japan asserted that it lacked sufficient minimum contacts with Florida, and thus personal jurisdiction violated federal due process. Mazda Japan contended that the targeting of Mazda products to Florida was done solely by its American corporate subsidiary.
In looking at the record, the appellate court believe that Mazda Japan did more than simply place its vehicles in the global stream of commerce knowing they would hit the American and Florida markets. Instead, the court concluded that Mazda Japan engaged in the sort of “additional conduct” that indicated an intent or purpose to serve the market in the forum state, thereby supporting specific jurisdiction.
The record demonstrated that the subject vehicle was designed and developed by Mazda Japan in Japan and was manufactured by its subsidiary in Mexico.
Mazda Japan then purchased the vehicle from Mazda Mexico and then resold it to Mazda North America, another subsidiary. After taking title, Mazda Japan shipped the vehicle from Mexico to the United States f/b/o Mexico, with Mazda North America noted as the buyer. Thereafter, Mazda North America sold the vehicle to a South Florida dealership.
While Mazda North America submitted to the jurisdiction of the court, it insisted it could provide no discovery regarding the design of the vehicle because all such information was possessed only by Mazda Japan, which refused to provide American style discovery.
In support of Mazda’s dismissal for lack of personal jurisdiction, it submitted two declarations from one of its officials, essentially averring that it has no office in Florida, does not manufacture, design, service, market, distribute or do anything else in Florida. The Affidavit also stated the Mazda dealer network in the United States consists of independent corporate entities that are overseen by Mazda North America.
The court looked various materials plaintiff filed after obtaining them in discovery. One document was the 2018 company profile called “Mazda in Brief”, an annual statement of the consolidated financials of over 68 Mazda corporations worldwide. The materials reflected that Mazda Japan is a leader of a worldwide conglomerate of corporations that design, manufacture and market a renowned brand of vehicles internationally.
In response to request for admissions, Mazda Japan admitted that its vehicle was intended to the United States market, including Florida. In the company profile it reported a growth of sales in Mazda vehicles in the U.S. consistently from 2012 to 2017. In one section of one of its materials, Mazda noted that it had been reforming its sales network in the U.S. and other areas while enhancing customer care and developing new generation dealerships. There was a demonstration that some of the Japanese executives were responsible for oversight and operations in North America. Mazda Japan had research and development facilities in California and Michigan.
The court also observed that request for admissions showed that Mazda designed the vehicle to comply with U.S. regulations, had registered trademarks with the U.S. Patent and Trademark Office, and provided warranties for Mazda vehicles sold in the U.S.
Mazda Japan had also shipped at least 493 vehicles to Florida ports during a 14-year period, and the vehicles were sold to Mazda North America f/b/o Mexico or Japan.
In December of 2015, Mazda showcased how its designs combined famous Japanese aesthetics with advanced ergonomics at an event in Miami. Mazda Japan also ordered the recalls of Mazda vehicles, including recalls of the make and model of the car at issue and recalls specifically naming the State of Florida.
The court observed that under normal circumstances there would be an evidentiary hearing if the affidavits could not be harmonized, but without one, all the facts presented by the plaintiff had to be taken as true, drawing all reasonable inferences from the facts in the favor of the plaintiff.
To satisfy due process with a court’s exercise of specific jurisdiction of a defendant, the defendant’s contacts must meet three conditions: (1) they must involve some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum thus invoking the benefits and protections of its laws; (2) the contacts must be related to the plaintiff’s cause of action or have given rise to it; and (3) the defendant’s contacts with the forum must be such that the Defendant should reasonably anticipate being hauled into court there.
The mere presence of the defendant’s product is not enough for case specific personal jurisdiction.
Targeting for purposeful availment may be done directly or indirectly, and if the sale of a product is not simply “an isolated occurrence” but arises from the efforts of the manufacturer or distributor to serve directly or indirectly the market for its product in other states, it is not unreasonable to subject it to suit in one of those states.
The court cited to Asahi v. Superior Court of California, a United States Supreme Court case, which noted that the placement of a product into the stream of commerce without more, is not an act of the defendant purposely directed toward the forum state. The Asahi court took great pains to explain how a defendant’s conduct could satisfy the type of “additional conduct” that could be a basis for specific jurisdiction.
The U.S. Supreme Court has identified six examples of “additional conduct” to indicate an intent or purpose to serve the market in the forum state: (1) sending products to the forum state; (2) designing the product for the market in the forum state; (3) advertising in the forum state; (4) establishing channels for providing regular advice to customers in the forum state; (5) marketing the product through a distributor who has agreed to service the sales agent in the forum state; and (6) selling the product in the forum state which is not simply not an isolated occurrence.
Mazda Japan asserted that these activities were taken by its American subsidiary, but not by it. The court disagreed based on the record materials. The court noted how Japan ordered recalls that expressly named and included Florida, evidencing its efforts to foster an ongoing relationship with its Florida buyers, as well as its promotion of its new design concepts in Florida, noting those efforts could only have been intended to reach Floridians. As the court asked: “if not to serve the state’s market, what was the purpose of Mazda Japan designing vehicles for, shipping vehicles to, and continuing to provide technical support in the form of recalls for its vehicles owned in Florida?”
The court also found that the use of a wholly owned subsidiary created for the purposes of marketing a product within a jurisdiction also shows a desire to connect to the forum state.
As the court wrote: “applying this law, Mazda Japan’s act of creating, deputizing, and utilizing Mazda North America qualifies as “marketing the product through a distributor who has agreed to service the sales agent in the forum state.” This provides even more additional conduct of the type the Supreme Court identified in Asahi.
Mazda Japan shipped this vehicle to the United States where it was purchased by the decedent in a Mazda branded dealer, and that among other things made the court conclude that Mazda purposely availed itself of the privilege of conducting business in Florida, because it directed the distribution of its vehicles to the State and sold Florida residents its cases through its distributor, Mazda North America and Mazda branded dealerships.
The court also found that Mazda’s contacts with Florida, all which related to facilitating the sale of its vehicles here, satisfied the prong that the activities that “arose out of or related to” the defendant’s activities in Florida.
As for the final prong, the court said that once it found that the defendant purposely availed itself of the state’s market, it was difficult for Mazda to argue that requiring it to litigate cases in a state where a resident riding in a vehicle purchased within the state’s borders was killed, violated due process.
In the concurring opinion, Judge Lindsey wrote “nothing in the due process or controlling case law demands insulating a foreign global automobile company like Mazda Japan from liability when it purposely avails itself of the privilege of selling vehicles directly or indirectly, in this state.”
One judge dissented, rebutting that the evidence in the record supported purposeful availment, or that Mazda Japan purposely directed or targeted its efforts towards Florida. This case is certainly far from over.
A COURT MAY NOT DISMISS AN ACTION WITH PREJUDICE AS A SANCTION FOR DISCOVERY MISCONDUCT WHERE THE TRIAL FAILS TO COMPLY WITH THE REQUIREMENTS OF KOZEL.
First Baptist Church of Greater Miami v. Miami Baptist Association, 48 Fla. L. Weekly D554 (Fla. 3rd DCA Mar. 15, 2023):
The plaintiff failed to comply with a prior agreed order on discovery (among other things). The trial court dismissed its case against the defendant.
The court conducted a non-evidentiary hearing and did not address all of the Kozel factors. The court also admonished that it is critically important to differentiate between the actions of the client and the actions of counsel, when making findings of fact corresponding to the conduct of each.
The court did not express any opinion on the nature and extent of the alleged misconduct, nor whether it justified the ultimate sanction of dismissal.
The holding was only that the court failed to comply with the requirements of Kozel, which generally requires an evidentiary hearing finding made under the various prongs.
A CLAIM OF NEGLIGENT HIRING, TRAINING, RETENTION, SUPERVISION OR ENTRUSTMENT AGAINST A SUPERVISOR INDIVIDUALLY (AS OPPOSED TO A CORPORATE EMPLOYER) DOES NOT DEPEND ON WHETHER THE SUBORDINATE EMPLOYEE’S ACTIONS WERE OUTSIDE THE SCOPE OF EMPLOYMENT.
Jones v. Vasilias, 48 Fla. L. Weekly D568 (Fla. 4th DCA Mar. 15, 2023):
The trial court dismissed the complaint for failure to state a cause of action, in this case where the plaintiff sued the supervising employees of a corporation individually, for an automobile accident caused by a subordinate employee of the corporation. The acts were alleged to have occurred within the course and scope of employment.
The accident happened when the plaintiff was riding his bicycle along a busy street in front of an automobile dealership, and an employee was leaving in a dealership van to make a delivery.
Because the service manager had sent the driver to make the delivery, the plaintiff titled the direct liability claims against the supervisors and the general manager’s employer as “negligent employment” claims. The claims sounded in negligent training, retention, supervision and entrustment. As to the service manager, the plaintiff alleged negligent hiring.
The trial court dismissed the claims based on Clooney v. Geeting, finding that the plaintiff could not allege independent causes of action against them, where the dealership had admitted that the employee driver had permission to use the vehicle and was doing so in the course and scope of his employment. The supervisors also argued that a necessary element for the causes of action against them was that the supervisors’ committed the tort outside of their employment (which was not alleged).
The trial court’s reliance on Clooney was misplaced as the appellate court found. Clooney involved vicarious claims against the employer and not direct claims. However, individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were permitted in the scope of their employment or a corporate officer.
A plaintiff may maintain a negligent employment claim against a supervisor individually even for acts that were within the course and scope of employment. The trial court erred in dismissing those claims.
GENUINE ISSUE OF FACT AS TO WHETHER DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE OF LIQUID THAT CAUSED FALL PRECLUDED SUMMARY JUDGMENT.
Welch v. CHLN, Inc., 48 Fla. L. Weekly D58 (Fla. 5th DCA Mar. 17, 2023):
The plaintiff was a customer at a restaurant and alleged that while there, she slipped and fell in a puddle near the salad bar. Plaintiff testified that there was quite a bit of liquid that appeared to be dirty and murky and had a “slimy” consistency. She observed footprints in the puddle that were going in different directions, and on multiple occasions expressed certainty that the footprints were not hers.
The restaurant’s manager testified that on a busy night like the night of the accident, the restaurant would have had at least two employees assigned to the salad bar; one of whom would have been there at all times helping to keep that floor clean.
The trial court granted summary judgment finding there was no evidence that the restaurant had actual knowledge of the dangerous substance, and insufficient evidence of its constructive knowledge.
The testimony that the plaintiff stepped in a large amount of liquid that was dirty, murky, and slimy, combined with the testimony that the footprints going in different directions, were in the liquid, and were not the plaintiffs raised a fact question precluding summary judgment.
WHEN PLAINTIFF SUES A SOVERIGN IMMUNE GOVERNMENTAL ENTITY BECAUSE ONE OF ITS AGENTS IS ALLEGED TO HAVE SEXUALLY ABUSED A MINOR CHILD, §768.28(14) APPLIES AND NOT §95.11(9).
SS v. School Board of Sarasota County, Fla. L. Weekly D590 (Fla. 2nd DCA Mar. 17, 2023):
In 2016, a woman filed a lawsuit the Sarasota County School Board alleging that during the 2010 to 2011 school year, a school board employee sexually abused her child in an aftercare program. There was no dispute that the parent first became aware of the abuse in 2013, about two years after the last abusive act.
A little more than two years later, plaintiff served a written claim pursuant to §768.28(6) on the School Board. The lawsuit however was not filed until March of 2016, more than four years after the last alleged act of abuse.
The School Board asserted that §768.28(14) applied and barred the claim. The plaintiffs asserted that the child’s claim was characterized more as one related to a sexual battery offense against a minor, meaning there was not time limit under §95.11(9).
In comparing the two statutes, the second district observed that both statues seem equally important to the maintenance of the claims because one could deem the lawsuit is both one related to the alleged sexual battery of a minor, and a negligence action against a sovereign immune defendant.
However, §95.011 clarifies that §95.11’s general applicability applies unless there is a different time prescribed elsewhere in the statutes. Because a different time period for sovereign immune defendants such as the School Board has been prescribed elsewhere in §768.28(14), that statute applied.
The court observed a wrinkle to its analysis in Green Cottrell where the First District affirmed the circuit court’s dismissal and determined that §95.011(5)(g) and not §768.28(14) governed the claim, because it was the more recently enacted statute.
The court reluctantly concluded that consistent with §95.011 and Public Health Trust of Dade County v. Menendez, §768.28(14)’s four-year limitations period applied to the claims against the school board therefore barring the minor’s claim.