The Week In Torts – Cases from May 19, 2023
Not so fast….
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 20
CASES FROM THE WEEK OF MAY 19, 2023
TRIAL COURT IMPROPERLY DIRECTED A VERDICT ON CAUSATION IN THE FACE OF CONFLICTING EVIDENCE.
Lancheros v. Burke, 48 Fla. Law Weekly D992 (Fla. 6th DCA May 12, 2023):
This automobile accident case went to trial solely on the issues of causation and damages. The plaintiff asserted that he suffered a permanent injury to his back from a car accident.
The defendants contended that the 24-year-old plaintiff, who had rowed crew competitively since he was a teenager, suffered from a preexisting back injury attributable to either weigh training or crew.
The defendant’s expert testified that the accident had not caused the plaintiff permanent injury. On cross, the surgeon conceded that the post-accident treatment was related to the crash.
The plaintiff moved for a directed verdict on causation. He argued that the surgeon’s testimony raised no dispute that plaintiff had been damaged at least in some manner and asserted that no reasonable jury could find that the defendant had not injured him. The trial court granted the motion.
The court reversed.
It found there was evidence of disputed causation evidence in the record, and that a reasonable jury could have disbelieved the plaintiff’s expert’s testimony and could have also disbelieved the plaintiff’s own testimony about his back soreness from the accident, when he did not complain of back pain during his subsequent emergency room visit, and no record showed the complaints until 18 days later.
The court ruled it was error for the trial court to take the issue away from the jury.
ERROR TO DENY INSURANCE COMPANY’S MOTION FOR A STAY OF DISCOVERY WITH A COVERAGE ACTION PENDING, EVEN THOUGH IT WAS PENDING IN FEDERAL DISTRICT COURT.
Mt. Hawley Ins. Co. v. Russo, 48 Fla. Law Weekly D956 (Fla. 2nd DCA May 10, 2023):
NOT ALL CONTRACTED DUTIES ARE “NON-DELEGABLE,” BUT THE PLAINTIFF FAILED TO RAISE THE IMPORTANCE OF THE DUTY ANYWAY
Garcia v. Southern Cleaning Service, 48 Fla. Law Weekly D977 (Fla. 1st DCA May 10, 2023):
The cleaning service defendant contracted with Winn-Dixie to provide floor cleaning and janitorial services. The cleaning service then subcontracted the work to another entity, also an independent contractor.
After the plaintiff fell in the Winn-Dixie at which she was employed, she filed a negligence action against the cleaning service, alleging that it breached its duty to warn Winn-Dixie employees and invitees of unreasonably slippery floors.
The cleaning service moved for summary judgment. To support its motion, it submitted its contract with the subcontractor. That subcontract stated that in no event would the cleaning service be liable for any damage caused by the subcontractor.
Plaintiff responded by asserting the defendant cleaning service had a non-delegable duty to ensure that the work performed at the Winn-Dixie store was done in a non-negligent fashion. The plaintiff filed the contract with Winn-Dixie in support of its opposition to the summary judgment motion and asserted that its existence alone created a non-delegable duty.
During the summary judgment hearing, plaintiff’s counsel asserted that the contract between Winn-Dixie and the cleaning service was the lynchpin of the case. The defendant cleaning service asserted that under plaintiff’s argument, every time a landowner or any other contractor enters a subcontract with an indemnity provision, irrespective of what it was for, they would make themselves subject to direct claims by people who are not parties to the contract which is not Florida law.
In describing the law of non-delegable duty, the court explained that a party that hires an independent contractor may be liable for the contractor’s negligence when a non-delegable duty is involved. Such duties may be imposed by statute, contract or common law. In determining whether a duty is non-delegable, the question is whether the responsibility at issue is so important to the community that the entity with the duty should not be allowed to transfer it to a third party.
The court observed that the plaintiff in this case was not a party to the cleaning service’s contract with Winn-Dixie. It cited to Mills v. Krauss where the Second District held that a duty of a general contractor to use due care in repairing the premises of another, insofar as it is applicable to the owner of the premises who was in contractual privity with the general contractor, is a non-delegable duty that may not be delegated to an independent contractor.
Similarly, in Shands v. Julianna, the court had affirmed a final judgment holding the hospital vicariously liable for a perfusionist’s negligence, noting the possibility that the perfusionist’s employer could be found to be an independent contractor, but that did not alter the fact that the perfusionist breached the contractual undertaking it made to the plaintiffs.
The court agreed that the facts of this case were more closely aligned with the Third District’s opinion in Carrasquillo v. Holiday Carpet Service, where an employee of a hotel alleged that he tripped over a bulge in a carpet that had recently been installed by someone employed by the hotel under an agreement with the hotel. The hotel successfully moved for summary judgment relying on the rule that as a general contractor it lacked control over the subcontractor who installed the carpet.
In opposition to the motion, the plaintiff argued that the hotel’s duties relating to the carpet installation were non-delegable. The Third District said the case did not stand for the proposition that liability for breach of contractual duties automatically forms the basis of recovery and tort by parties not related to the contract and the plaintiff could not recover on that basis. In affirming, the court explained that the mere existence of a contract does not create vicarious liability as to third persons for the negligent acts of an independent contractor.
In this case, the court held that the cleaning company’s contract with Winn-Dixie did not automatically create a non-delegable duty on its part to the plaintiff, a non-party to the contract. As such, the trial court properly granted summary judgment. While the plaintiff also argued that a non-delegable duty was created because the type of work for which she was employed entails a particular risk, she had failed to raise that argument below, waiving it on appeal.
TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS COMPLAINT SEEKING DAMAGES FOR DEFAMATION AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, BASED UPON AN ALLEGATION OF FALSELY MALICIOUSLY IMPUTING “FICTITIOUS DISORDER” TO THE PLAINTIFF – – PLAINTIFF FAILED TO COMPLY WITH PRE-SUIT REQUIREMENTS IN THIS MEDICAL NEGLIGENCE CASE.
Halsey v. Hoffman, 48 Fla. Law Weekly D986 (Fla. 2nd DCA May 12, 2023):
The plaintiff sued the defendant doctor for defamation per se, slander per se, and negligent and intentional affliction of emotional distress. She alleged that the physician, an asthma, allergy and immunology specialist, falsely and maliciously imputed her and labeled her with “fictitious disorder.” The disorder has elements of a psychiatric disorder, where the patient deceives others by appearing sick or purposely getting sick or having self-injury. The plaintiff alleged the doctor was not qualified to determine that she suffered from this disorder because he was not a specialist in psychiatry.
However, the plaintiff failed to comply with pre-suit notice requirements. Even though the case involved defamation and other claims, the court concluded that based on the plaintiff’s allegations she would likely have to call at least one medical expert to testify that she does not have fictitious disorder, and to testify that the defendant was not qualified to diagnose her with that disorder. Those factors made this a case for medical negligence and not ordinary negligence.