Why res ipsa exists

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 13

MARCH 29, 2024

PLAINTIFF ENTITLED TO INSTRUCTION ON RES IPSA LOQUITUR IN MEDICAL MALPRACTICE CASE

Barber v. Manatee Memorial Hospital, 49 Fla. L. Weekly D651 (Fla. 2nd DCA Mar. 22, 2024):

The plaintiff sustained a bilateral hip fracture while unconscious at the defendant hospital’s ICU where he was being treated for a drug overdose. Based on the facts, the court concluded he was entitled to assert  res ipsa loquitur, rendering the entry of summary judgment erroneous.

Before he came to the hospital, the plaintiff had attempted to end his life by taking four different prescription medications. He had a change of heart and called 911 and when the EMTs responded, he was fine, but then began to have seizure-like activity.

He was taken to the emergency department at the defendant’s hospital and submitted to a psychiatric consultation. In the emergency department, the notes indicated he was not complaining of pain of any kind and his exams showed a normal range of motion.

However, within four hours of arriving, the plaintiff’s condition deteriorated. He became non-responsive and was put on a ventilator. He was then transferred to the ICU.

The next day, he was extubated, but complained of pain in his right groin and thigh that felt like a big cramp. He was sent for X-rays complaining of extreme pain and was found to have suffered bilateral hip fractures. No one could explain how those occurred.

When the plaintiff’s counsel notified the hospital of his claim, it responded that it had no record or incident of a report concerning the cause of the hip injuries. Without any records, all the medical experts had to rely on was their collective medical skill and expertise, as well as literature about the most common causes of bilateral hip fractures.

After the bulk of the medical discovery was done, the defendant moved for summary judgment, arguing that the plaintiff had failed to put forth sufficient evidence to prove medical negligence, and therefore failed to meet his burden of proof.

In trying to refute the summary judgment, the plaintiff produced expert witness testimony and relied on the doctrine of res ipsa loquitur, the doctrine providing a common-sense inference of negligence when direct proof of negligence is wanting.

To prove res ipsa loquitur, a plaintiff must present sufficient evidence that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the incident causing the injuries would not ordinarily occur without negligence on the part of the one in control.

The trial court found that the plaintiff had failed to provide sufficient evidence of the hospital’s exclusive control, and further found there was some question about the doctrine’s application, because the plaintiff’s expert witnesses could not rule out that most of his injuries had occurred outside the hospital.

The court reversed the trial court’s entry of summary judgment (as well as the denial of the defendant’s motion in limine to exclude evidence of its failure to investigate the cause of the plaintiff’s injuries once they were discovered).

Because the record evidence established that the plaintiff’s hip fractures were unrelated to his treatment from a drug overdose, and that the hospital was in exclusive control of the instrumentality that caused his fractures which would not have ordinarily occurred in the absence of negligence, the plaintiff was entitled to argue res ipsa loquitur, rendering summary judgment improper.

Similarly, the court reversed the trial court’s finding that the hospital’s lack of investigation was not relevant to whether the plaintiff’s injuries were caused by a breach of the standard of care. The lack of investigation weakened the defendant hospital’s argument that the plaintiff’s injuries were the result of an undocumented violent seizure, and established the limited foundation for the hospital’s expert witness opinions.

ERROR TO DENY DEFENDANT’S MOTION FOR ATTORNEY’S FEES PURSUANT TO THEIR VALID JOINT PROPOSAL FOR SETTLEMENT

Webjet Linhas Aeras v. ZGA Aircraft Leasing, 49 Fla. L. Weekly D620 (Fla. 3^rd DCA Mar. 20, 2024):

A corporation sought to buy six Boeing aircraft that the defendant had acquired when it purchased another airline. Despite the negotiations and agreements, the defendant sold the planes to another party. 

The plaintiff sued the defendant. The defendants served the plaintiff with a proposal for settlement to settle all claims made by the plaintiff against the airline company. However, there was another airline that had absorbed all of the defendant’s assets and services.

The plaintiff lost the trial, and after the defendant’s moved for attorney’s fees, argued that the two different parties (the one with the assets and the one that formerly had the assets) had filed an invalid proposal without properly apportioning the offer between the two parties.

The trial court ruled that because the proposal had not strictly complied with the requirements of rule 1.442, it was an invalid joint proposal that failed to apportion the amount offered between the two defendants.

The court reversed. It found that under Rule 1.442(c)(4), the two defendants had made an enforceable joint proposal against the plaintiff because one of the defendants “constructively liable,” and therefore under the plain language of the exception, the joint proposal was valid.

TRIAL COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT IN THIS PREMISES LIABILITY CASE — JURY COULD HAVE REASONABLY CONCLUDED THAT DEFENDANT’S EMPLOYEES KNEW OF THE DANGEROUS CONDITION UNDER THE FACTS

Dolgen Corp, LLC v. Doty, 49 Fla. L. Weekly D644 (Fla. DCA Mar. 22, 2024):

A Dollar General Store displayed seasonal merchandise in “U-boats”–carts shaped like hotel baggage carriers outside the store’s entrance. When it started raining one afternoon, an employee moved the carts inside and placed a wet floor sign nearby.

When the rain stopped, another employee put the carts back outside and moved the wet floor sign. Moments later, the plaintiff entered the store and slipped and fell on a puddle of water she alleged was near the main entrance. 

The case went to trial. One employee testified that the carts most likely got wet that day, noting that the rain was fairly heavy, and testifying that they put up the wet floor sign, because the floor was wet or could get wet. He acknowledged that when the rain stopped, he had moved the wet floor sign off to the side.

Another employee, the manager on duty, had testified that she completed an incident report in the immediate aftermath of the plaintiff’s fall, noting that the cause of the incident was “rain outside, had to bring in wet U-boats hadn’t gotten wet floor sign down yet.”

The defendant unsuccessfully moved for a directed verdict, claiming there was no evidence that it knew about the water on the floor.

When seeking a directed verdict, the movant admits the truth of all evidentiary facts as well as every reasonable conclusion or inference favorable to the opposing party from these facts. In a slip and fall case involving a transitory substance in a business, the plaintiff must prove under section 768.0755 (1) that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it

A business owner has actual knowledge of a dangerous condition when the owner or one of its agents knows or creates the dangerous condition.

The court observed that the evidence of actual knowledge was more compelling in this case, than in other cases. An employee had placed a wet floor sign near the display after she brought the carts in presumably because the floor was wet. That was consistent with testimony that given how heavy it was raining, the displays were likely wet when they entered the store.

On this record, when viewed in a light most favorable to the plaintiff, there was a jury question about whether the defendant had actual notice of the dangerous condition that caused the plaintiff’s fall. The trial court correctly denied the defendant’s motion.

TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION TO SEVER AND TRANSFER PORTION OF THE PLAINTIFF’S COMPLAINT IN A CASE WHERE PLAINTIFF HAD BEEN INJURED IN TWO SUCCESSIVE ACCIDENTS, EVEN THOUGH THEY AROSE IN DIFFERENT COUNTIES AND INVOLVED DIFFERENT PARTIES AND DIFFERENT TREATMENTS, BECAUSE THEY WERE STILL SUFFICIENTLY INTERTWINED 

Pereira v. Jones, 49 Fla. L. Weekly D648 (Fla. 5th DCA Mar. 22, 2024):

The plaintiff was involved in two successive car accidents, one in Lake County, one in Orange County. The plaintiff sued for both accidents in Lake County, asserting that Florida law allows a plaintiff to try two cases together that result in injuries that are difficult or impossible to apportion.

The defendant insurance company argued that the two accidents were not sufficiently intertwined and could be severed because they were in different counties, with different parties, different patient treatments, and occurred over three years apart.

When a plaintiff is injured in two successive accidents, he or she may bring a suit where the accidents cause the same or similar injuries, or where it is difficult or impossible to apportion the injuries between the two tortfeasors. However, the plaintiff must allege that the injuries are unapportionable. The plaintiff had not so alleged, and the trial court denied him leave to amend.

Even the insurance company acknowledged that it is error to sever and transfer one case when two successive actions cause the same or similar injuries, provided those injuries are indivisible, impossible, or very difficult to apportion. The court ruled that the plaintiff should have been allowed to amend her complaint, which would have allowed him to keep both cases in the county in which he filed it.