The Week In Torts – Cases from May 13, 2022
Court slams G4S again for its overreach
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 19
CASES FROM THE WEEK MAY 13, 2022
G4S’ UNREASONABLE ATTEMPT AT SEEKING COMPLETE SOVEREIGN IMMUNITY FAILS YET AGAIN
Naso v. Hall and G4S Secure Solutions, 47 Fla. L. Weekly D998 (Fla. 4th DCA May 4, 2022):
A G4S security guard observed an elderly man sitting on a bus bench at 3:00 a.m., long after the terminal was closed. The guard advised the victim that he had to leave, and called a taxi for him.
Soon thereafter, the assailant began harassing and teasing the victim, causing someone else present to alert security. The G4S guard arrived approximately five minutes later, and attempted to call his supervisor. However, the guard did not intervene. The assailant then attacked the victim, smashing his head into the sidewalk and ultimately causing his death, which was later ruled as a homicide.
The guard and G4S moved for summary judgment arguing that they were “agents of the state,” therefore entitled to complete sovereign immunity under §768.28(9). Based on its earlier decision in Lovelace v. G4S Secure Sols., 320 So.3d 178 (Fla. 4th DCA 2021), the court again ruled that G4S was not entitled to complete immunity; only to limited sovereign immunity.
The Fourth District reminded us that §768.28(9) does not apply to G4S because it is a corporation. That section only applied to the guard himself as an individual. However, complete immunity would only apply to the guard if he acted without a conscious and intentional indifference to the consequences, and with knowledge that damage was likely to be done through his actions.
The court remanded, reversing the summary judgment, and ordering the trial court to consider the issue of punitive damages.
TRIAL COURT ERRONEOUSLY DISMISSED COMPLAINT AGAINST THE SHERIFF BASED ON SOVEREIGN IMMUNITY FOR THE NEGLIGENT HANDLING OF A K-9
McKinley v. Gualtieri, 47 Fla. L. Weekly D966 (Fla. 2nd DCA May 4, 2022):
The court examined the interplay between the dog bite statute found in §767.04, Fla. Stat. and the common law approach to dog bite cases which existed prior to the enactment of that statute, and §768.28, Fla. Stat., which waives sovereign immunity in tort cases. §767.04 is a strict liability statute, and cases have prohibited actions against the state on that basis.
However, the court found there was no reason to differentiate between motor vehicles, firearms, firefighting equipment and police dogs when deciding whether officials employed by or acting on behalf of a state agency owe a common law duty of care toward innocent bystanders who happen to find themselves within a foreseeable zone of risk created by such officials. The Florida Supreme Court has held that governmental entities are clearly liable for that type of conduct as a result of the enactment of §768.28.
Consequently, the court concluded that although the decision to patrol the subject venue with a K-9 dog may have been discretionary, the act of patrolling itself was operational, and as such, the lawsuit was not barred by sovereign immunity.
FAILURE TO PRESENT A TIMELY NOTICE OF CLAIM BARRED PLAINTIFF’S ACTION AGAINST A COUNTY PSYCHIATRIC FACILITY
Simmons v. Public Health Trust of Miami-Dade County, 47 Fla. L. Weekly 972 (Fla. 3rd DCA May 4, 2022):
The plaintiff claimed that on October 11, 2013, while a resident at Jackson Memorial Hospital’s psychiatric facility, he was attacked and beaten by another resident.
On February 4, 2014, the plaintiff sent written notice of his claim against Community Health of South Florida, to both Community Health as well as the Florida Department of Financial Services, pursuant to §768.28(6)(a). The statute prohibits a claim against the state or one of its agencies, unless the claimant presents the claim in writing to the appropriate agency.
The plaintiff here did not present written notice of the claim against Jackson Memorial Hospital or to the Florida Department of Financial Services before filing suit as required by §768.28(6). The plaintiff filed suit in October of 2015, and then sent notice of his claim to the Florida Department of Financial Services by mailing the notice via certified mail on October 11, 2016. Written notice was received by the Florida Department of Financial Services on October 13, 2016.
In November of 2016, the plaintiff tried for the first time to serve Jackson Memorial Hospital with the complaint. However, the plaintiff did not serve the head of the agency as required by §§48.111 and 768.28(7), thus service on Jackson Memorial Hospital was improper.
On December 5, 2016, the plaintiff filed an amended complaint against Jackson Memorial Hospital based on negligence and strict vicarious liability. He again tried to serve Jackson Memorial Hospital, but failed for the same reason.
After an appeal determined that the plaintiff’s action was a negligent security case and not medical malpractice (requiring compliance with the pre-suit notice requirements of medical malpractice), the court remanded back to the trial court. At that point, Jackson Memorial Hospital filed its answer and affirmative defenses, and asserted that plaintiff failed to comply with the conditions precedent set forth in §768.28(6).
In light of both federal and state case law, the court held that it had to strictly construe §768.28(6) holding that the mailbox rule does not apply in the context of sovereign immunity cases. Thus, a claimant “presents” his notice of claim under that section on the date the state agency or subdivision receives the notice of claim in hand, and not on the date the claimant mailed his notice of claim to the agency or subdivision.
Additionally, the court found that the plaintiff was required to present the notice of claim before filing suit.
For both of these reasons, the court affirmed the trial court’s entry of summary judgment in favor of Jackson Memorial Hospital, because the plaintiff failed to comply with the mandatory conditions precedent set forth in §768.28(6).
DEFENDANT’S MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED WHEN THERE WAS A VALID AGREEMENT TO ARBITRATE AND NO RECORD SUPPORTING THAT THE AGREEMENT WAS UNCONSCIONABLE
Fort Walton Rehab Center v. Estate of Gordon, 47 Fla. L. Weekly D1007 (Fla. 1st DCA May 4, 2022):
In ruling on a motion to compel arbitration, courts are constrained by both the federal statutory provisions and Florida’s arbitration code to consider (1) whether a valid agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.
Additionally, when disputed by the parties, courts must determine whether the arbitration agreement is unconscionable – both procedurally [the manner in which the agreement was entered into and the absence of meaningful choice] and substantively [the unreasonableness of the agreement’s terms].
The trial court failed to make findings regarding these elements, but the appellate court did make findings, ruling that there was a valid agreement and no waiver of the right to arbitrate.
The court could not find a “scintilla of record support” to conclude that the arbitration agreement was either procedurally or substantively unconscionable.