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FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 20

CASES FROM THE WEEK OF MAY 23, 2025

COURT REVERSES SUMMARY JUDGMENT IN FAVOR OF PROPERTY OWNER BASED ON ISSUES OF FACT REGARDING THE DEGREE OF CONTROL EXERCISED OVER THE LEASED PREMISES AND THE OWNER’S KNOWLEDGE OF A DANGEROUS CONDITION

Hu v. Hua, 50 Fla. L. Weekly D1087 (Fla. 4th DCA May 14, 2025):

A woman who was at a massage therapy business, slipped and fell while using the shower that had a step for ingress and egress. The owner had leased the premises to the massage therapy spa business, and the tenant had installed the elevated shower in what was previously a half bathroom.

The tenant did not obtain the owner’s written consent as required before altering the leased premises. The lease prohibited the tenant from “cutting, drilling or securing any fixture or apparatus, or equipment of any kind” on the subject premises without first obtaining written consent of the landlord. If approval was obtained, the lease then obligated the tenant to provide build-out plans for the approval.

The tenant subsequently assigned the lease to two new individuals. While the lease made the tenant responsible for most repairs, it also gave the premises owner the right at all reasonable times to enter the premises to inspect, maintain, repair, or make reasonable alterations to it.

After the second tenant took over, the plaintiff used the shower for the first time. As she descended the step to exit, she lost her balance and sustained serious injuries. She alleged that the premises owner and the spa operator had failed to maintain the shower step, so it was free from defects or dangerous conditions and that it was not compliant with the building code.

Both the second tenant spa operator and the premises owner separately moved for summary judgment. The spa operator argued it lacked actual or constructive notice of the liquid substance referenced in the plaintiff’s deposition. The owner adopted the tenant’s argument and asserted an additional ground — that it was not in possession or control of the premises and owed no duty to the plaintiff.

Plaintiff filed the affidavit of a professional engineer who found that the entrance/exit to the shower area was unsafe, provided limited accessibility and was in violation of the ADA and the Florida Building Code. She also submitted her own affidavit.

The trial court granted summary judgment for the owners, finding that the premises owners did not have possession or control and thus had no duty to maintain or warn the plaintiff of any defects or dangerous conditions. The plaintiff appealed.

The appellate court found there was a genuine issue of material fact regarding the degree of control which the premises owner exercised over the leased premises based on the language of the lease agreement, namely, because the lease maintained a right of entry for the landlord, and because the tenant was required to obtain written consent of the landlord before altering the premises.

Additionally, there was a genuine factual dispute regarding the owner’s notice of the shower, and more specifically the step and the shower’s lack of an anti-slip component.

The owner admitted during her deposition that her inspection of the premises had predated the purchase and execution of the new lease. The owner admitted that while she had been physically present at the leased premises before the fall and when the lease was assigned, she did not conduct an inspection which would have revealed that the shower had been installed.

There was also another owner that had entered the leased premises before the tenant assigned the lease, and that tenant could not recall specifics surrounding the visit but said that the owner should have seen the shower located in the reception area.

Those facts, combined with the owner’s possessory interest in the premises, created a genuine issue of material fact about the owner’s notice of the shower and its duty to maintain and remedy it, including a potential shower renovation or removal.

Finally, the court concluded that genuine factual issues remained regarding the nature of the defect, including whether the plaintiff’s fall was attributed to a substance, a construction defect including anti-slip components, or a combination of the two. Plaintiff’s expert had also concluded that there were violations of the building codes and the ADA.

In viewing this evidence in a light most favorable to the plaintiff, the court disagreed with the trial judge’s assessment that there was no competent substantial record evidence regarding a construction defect and remanded for a trial against the owner (and the operator who had not obtained summary judgment).

CHALLENGE TO ADMISSION OF BUSINESS RECORDS WAS NOT PRESERVED FOR APPEAL

Pescatore v. Deeper Blue Sea LLC, 50 Fla. L. Weekly D1092 (Fla. 4th DCA May 14, 2025):

After the plaintiffs objected to hearsay at trial, and the defendant identified the business records exception, it was incumbent upon the plaintiffs to specify the infirmity in the predicate and to obtain a ruling on the specific objection that they later asserted on appeal.

The court explained that had an objection been specific, it might have directed the trial judge’s attention away from the issue of authentication to the perceived deficiency in the predicate for the business records exception. The failure to preserve led to the affirmance (this was a reaffirmance on rehearing).

DEALING WITH CAUSE CHALLENGES AND THE “RANDOM JURY BOX” METHOD OF JURY SELECTION

Sikes v. R.J. Reynolds Tobacco Co., 50 Fla. L. Weekly D1097 (Fla. 3d DCA May 14, 2025):

The plaintiff in this case did not exhaust all his peremptory challenges during jury selection (something that needs to be done to preserve error).

In this case, where the trial court used the “random jury box” method of jury selection (i.e,, after prospective jurors are excused for hardship reasons, the trial court uses a random number generator to reorder the jury pool, and list them on a random list that the court does not share with the attorneys. Then, using the random list, the trial court on a one-by-one basis calls out prospective jurors’ numbers, and the party’s attorneys either accept the prospective juror, challenge the juror for cause, or exercise a peremptory challenge).

Plaintiff’s counsel asserted that this procedure ran afoul of the law, which requires that a party be allowed to view the entire venire while making a decision about whether to exercise a peremptory challenge. The plaintiff also asserted that the trial court erred in failing to strike a prospective juror for cause, who ended up on the panel.

To preserve for appellate review a challenge to the trial court’s jury selection methods as it pertains to the use of cause or peremptory challenges, a party must do more than simply object to the procedure that was used. The party must exhaust all challenges, identify an objectionable juror that is still on the panel, and then request — and be denied — an additional peremptory challenge to use on the objectionable juror. Then, prior to the jury being sworn, the party must object to the composition of the jury.

Unless the trial court is advised that there is an objectionable juror on the panel, the trial court has the right to assume that by accepting the jury, the party is satisfied with the panel members. Here, while the plaintiff complained about two jurors, the court ruled that neither challenge was preserved.

One judge wrote a special concurrence, noting that the use of the random jury box method gave her great pause because peremptory challenges are “an important tool in a trial lawyer’s toolbox” and “fundamental” in the selection of impartial jurors.

The judge cited Article I, Section 16(a) and Article I, Section 22 of the Florida Constitution regarding a litigant’s right to a fair and impartial jury and noted how that right must be jealously guarded.

This is probably a good case to have at trial, both as a reminder about preservation, and to discourage any judge who wants to use this method (and you can object to it, citing those provisions of the Florida Constitution).

TRIAL COURT PROPERLY ENTERED FINAL SUMMARY JUDGMENT FOR HOSPITAL AS A MATTER OF LAW WHERE THERE WAS NO GENUINE DISPUTE OF MATERIAL FACT THAT THE EMPLOYEE WAS INJURED IN THE SCOPE OF HIS WORK AS A FULL-TIME EMPLOYEE OF AN INDEPENDENT CONTRACTOR, AND THE HOSPITAL NEITHER ACTIVELY PARTICIPATED IN HIS WORK NOR CREATED AN UNSAFE CONDITION THAT CAUSED HIS INJURY

Almanzar v. Public Health Trust of Miami-Dade County, 50 Fla. L. Weekly D1110 (Fla. 3d DCA May 14, 2025):

The hospital retained Thyssenkrupp Elevator Corp. as the independent contractor to maintain and repair its elevators. The company assigned an employee, the plaintiff, to serve as a full-time on-site resident elevator mechanic at the hospital. He was injured while repairing an elevator and filed an action against the hospital, asserting it was negligent in maintaining the elevator that caused his injury.

The hospital moved for summary judgment, arguing it owed no duty to the plaintiff, as he was the employee of an independent contractor. The hospital argued that the plaintiff’s injury arose from the condition he was engaged as an independent contractor to repair, the hospital did not participate or control the manner in which the maintenance work was performed, and it did not create the condition that caused the plaintiff’s injury.

The plaintiff did not file a response in opposition. He relied solely on his own deposition testimony where he admitted that the hospital did not participate or exercise any control over the elevator’s maintenance and that it did not create the condition that caused his injury.

Generally, a property owner who employs an independent contractor to perform work on its property will not be held liable for injuries sustained by the employee of the independent contractor during the performance of the work.

There are two exceptions: if the property owner actively participates in or directs control over the work, or the property owner negligently creates or negligently approves of a dangerous condition.

The hospital submitted undisputed evidence that the plaintiff was injured in the scope of his work as a full-time employee of the elevator company, an independent contractor. The plaintiff did not contest this, nor did he come forward with any evidence to demonstrate that the hospital actively participated in his work or that it created the condition that caused his injury.

Because no genuine dispute of material fact existed (the plaintiff’s injury occurred in the scope of his work, the hospital neither participated in the work, and the hospital did not create an unsafe condition) the final summary judgment was affirmed.

TRIAL COURT ERRED BY AWARDING DEFENDANT ITS ATTORNEYS’ FEES AND COSTS BASED ON A REJECTED PROPOSAL FOR SETTLEMENT WHERE THE TRIAL COURT FAILED TO INCLUDE THE PLAINTIFF’S PRE-OFFER ATTORNEYS’ FEES AND COSTS IN ITS CALCULATION WHEN DETERMINING WHETHER THE JUDGMENT OBTAINED WAS 25% LESS THAN THE DEFENDANT’S OFFER

SFR Services LLC v. Florida Department of Financial Services, 50 Fla. L. Weekly D1129 (Fla. 6th DCA May 16, 2025):

This case arises from a homeowner’s insurance claim following Hurricane Irma. The insurance company served a proposal for settlement on the entity that had been assigned the right to insurance benefits from the plaintiff homeowners for $15,000. It included language that it was exclusive of all taxable costs and attorneys’ fees.

The plaintiff did not accept the proposal, and the jury found that the insurance company owed $20,000 in damages. The trial court subsequently reduced the damages to $9,000 to account for a $6,000 hurricane deductible and a judgment in accordance with a prior directed verdict motion regarding $5,000 of interior damages and awarded the insurance company fees.

Because the proposal stated specifically that it was exclusive of taxable costs and the pre-offer attorneys’ fees, the trial court erred in not adding in that amount before ruling that the judgment fell below the threshold.

The appellate court cited White v. Steak and Ale for the proposition that the judgment obtained includes the net judgment for damages and any attorneys’ fees and taxable costs that could have been included in the final judgment if such final judgment was entered on the date of the offer.

The legislature has not seen fit to clarify its intent since White, and while the Florida Supreme Court was recently presented with an opportunity to recede from that formula, it declined to do so.

Thus, the trial court erred in failing to apply the White formulation of judgment obtained, which would have meant that the plaintiff did meet the threshold with the final judgment, and thus the defendant was not entitled to attorneys’ fees.