The Week In Torts – Cases from November 11, 2022
Sorry seller, it ain’t legal
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 45
CASES FROM THE WEEK NOVEMBER 11, 2022
EXCULPATORY CLAUSES THAT PURPORT TO ABSOLVE RETAILERS (AND OTHERS IN THE CHAIN OF DISTRIBUTION) FROM STRICT LIABILITY CLAIMS WHEN A DEFECT IN THE PRODUCT INJURES A VICTIM, ARE VOID AS AGAINST PUBLIC POLICY
Harrell v. BMS Partners, LLC, 47 Fla. L. Weekly D2211 (Fla. 4th DCA Nov. 2, 2022):
In a case proudly handled by yours truly, a young man lost his leg when the brand-new motorcycle he had purchased from the defendant retailer began to wobble and turn violently while he was riding it. These conditions caused the rider plaintiff to lose control and crash, and he ultimately lost his leg due to his injuries.
The purchase contract the man signed contained a broad exculpatory clause. The defendant asserted that the clause prevented the plaintiff’s lawsuit altogether, and essentially immunized it from suit.
While the Fourth District found that the plain language of the exculpatory clause itself did not include claims for strict liability, the more important part of the ruling had to do with these clauses and strict liability in general.
The Court additionally concluded that the exculpatory clause contravened public policy, as applied to strict liability claims. It looked to the Florida Supreme Court’s adoption of West v. Caterpillar Tractor in 1976, which made the Restatement (Second) of Torts § 402A part of Florida’s common law, and found that product safety is part of Florida’s public policy. That policy places a duty on manufacturers and others in the chain of distribution to warrant the safety of their products.
The Fourth District acknowledged that the case was one of first impression because no Florida decision has ever directly addressed the issue of whether an exculpatory clause between a retailer and a consumer, purporting to insulate the retailer from strict liability claims, contravenes public policy.
In ruling that it does, the Court looked to a Fifth District opinion in a case involving shoddy construction and public policy, and also looked to decisions from other jurisdictions that supported the result.
Finally, the court rejected the defendant’s suggestion that because the plaintiff had the option of pursuing the manufacturer, Suzuki, in this case, that the exculpatory clause would not violate public policy.
In rejecting the argument, the court reminded us that the underlying basis for the doctrine of strict liability is that those entities within a product’s distributive chain who profit from the sale or distribution of the product to the public, rather than an innocent person injured by it, should bear the financial burden of even an undetectable product defect.
Hopefully, the Fourth District’s groundbreaking decision and win for consumers will cause courts to confront these exculpatory clauses in other contexts.
SUPREME COURT ADDS VIDEO DEPOSITIONS AND EXPERT “COURT” TESTIMONY TO THE UNIFORM GUIDELINES OF TAXABLE COSTS
In Re: Amendments to Florida Rules of Civil Procedure, 47 Fla. L. Weekly S277 (Fla. Nov. 10, 2022):
The court amended the statewide uniform guidelines to include “audio visually recorded depositions” and expert “court” testimony to the list of litigation costs that “should” be taxed.
The Court further amended the guidelines so that non-binding arbitration fees and expenses “may” be taxed.
TRIAL COURT PROPERLY DENIED MOTION FOR PROTECTIVE ORDER TO COMPEL A HOSPITAL’S NON-PARTY EMPLOYEES TO PRODUCE THEIR TEXT MESSAGES COMMUNICATING THEIR OBSERVATIONS ABOUT THE DEFENDANT PHYSICIAN’S PURPORTEDLY IMPAIRED BEHAVIOR
Talley v. Consolidated Respondents, 47 Fla. L. Weekly D2228 (Fla. 1st DCA Nov. 2, 2022):
A group of former patients of the defendant doctor at St. Vincent’s Medical Center brought a consolidated medical malpractice claim against both, based on the physician’s alleged negligence and the hospital’s vicarious liability.
To support their claims, the plaintiff sought to obtain discovery from several non-party employees of the hospital regarding the doctor’s purportedly impaired behavior as communicated by text messages on their personal cell phones.
These former employees moved for protective order asserting a global right to privacy, which the trial court denied. The denial necessitated a petition for writ of certiorari.
While the right to privacy exists to protect persons from governmental intrusion into their private lives and protects the disclosure of sensitive information about a person, the Supreme Court has held that those rights are not absolute.
Under Florida’s broad discovery rules, any non-privileged information, including electronically stored information, is discoverable so long as it is relevant to the subject matter of the action.
Here, the trial court narrowly tailored its order to only “non-party” employees. The plaintiffs did not seek disclosure of their medical records. The order was limited to what the petitioners conceded that was relevant information.
Because the petitioners failed to demonstrate that they had a global right to privacy to their text messages when the information was admittedly relevant, and the order was narrowly tailored, certiorari was not proper. Generally, people do not have a clearly established blanket right to privacy to prevent the disclosure of relevant, albeit personal, text messages.