The Week In Torts – Cases from October 28, 2022
Personal jurisdiction v. the internet
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 43
CASES FROM THE WEEK OCTOBER 28, 2022
TRIAL COURT PROPERLY DISMISSED ACTION FOR LACK OF PERSONAL JURISDICTION OVER NON-RESIDENT WHO ALLEGEDLY MADE DEFAMATORY REMARKS IN AN INTERVIEW – PLAINTIFF’S FAILURE TO FILE ANY SWORN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND AFFIDAVIT MEANT THOSE STATEMENTS IN DEFENDANT’S AFFIDAVIT HAD TO BE TREATED AS TRUE
Robolledo v. Chaffardet, 47 Fla. L. Weekly D2119 (Fla. 3rd DCA Oct. 19, 2022):
This appeal highlighted the difficulties inherent in applying the traditional personal jurisdiction framework to an internet-based defamation claim. The plaintiff was an exiled former Venezuelan judge, who challenged an order dismissing his slander lawsuit for lack of personal jurisdiction over the defendant.
Plaintiff alleged that defendant defamed him in an interview with a prominent Venezuelan journalist outside of Florida. The interview was uploaded to YouTube by a third party and was purportedly accessed by viewers in Miami-Dade and Broward Counties.
The trial court ruled that the defendant lacked sufficient minimum contacts with Florida to satisfy due process integral to any jurisdictional analysis.
In cases involving intentional torts, courts have applied the “effects test,” first formulated by the United States Supreme Court in Calder v. Jones, as an alternative method for establishing purposeful availment.
In Calder, the court concluded that a California state court had personal jurisdiction over The National Enquirer, a nationally distributed paper with editorial offices in Florida, as well as a reporter and an editor who were both Florida residents, in a liable lawsuit involving an article about a California actress in California. The court explained that jurisdiction was proper based on the “effects” of the Florida-based conduct in California.
Thirty years later in Walden v. Fiore, the court refined the parameters of the “effects test,” reasoning that there could be no jurisdiction unless the plaintiff felt the effects while residing in that forum. For a state to exercise jurisdiction consistent with due process, the defendant’s suit related conduct must have a substantial connection with the forum state.
Under these cases, a single tortious act may be sufficient to establish purposeful availment without regard to the defendant having any other contacts with the forum, in cases where the tort was intentional, aimed at the forum state, and caused harm that the defendant should have anticipated would be suffered in the forum state.
However, applying this test to cyber-based torts is not always a simple task because the unique nature of the internet gives access to potentially harmful communication anywhere in the world.
Unlike the defendants in Calder, there was no indication that the defendant here sourced his statements in Florida or that his comments concerned Florida activities. While the plaintiff persuasively asserted that it was reasonably foreseeable that the comments would reach a Florida audience, mere knowledge of the brunt of the alleged harm is insufficient to establish purposeful direction at the forum state.
Additionally, in this case, a third person uploaded the video to YouTube. It is axiomatic that unilateral activity of another party or a third person is not appropriate for jurisdictional consideration.
The court advised it was “remaining cognizant that the relationship between internet activities and personal jurisdiction is a dynamic and evolving area of the law,” but still concluded there was no jurisdiction.
TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT RESTAURANT; WHILE THE PLAINTIFF FELL PAVERS ADJACENT TO THE RESTAURANT AND UNDERNEATH THE RESTAURANT’S AWNING, THE CITY OWNED THEM.
Martin v. City of Tampa, 47 Fla. L. Weekly D2109 (Fla. 2nd DCA Oct. 19, 2022):
A woman went to have lunch at a restaurant, and tripped on an uneven hexagonal paver located directly beneath the awning that the restaurant owned and maintained. The awning was attached to the restaurant and supported by pillars affixed atop the hexagonal pavers.
The City of Tampa allowed the restaurant to erect the awning above the pavers after the parties entered into an encroachment agreement. However, the agreement did not mention the sidewalk underneath the awning.
The plaintiff alleged the restaurant had joint and shared responsibility with the city for the pavers, but that the restaurant had actual possession and control of the sidewalk, and thereby assumed a duty to keep it free from dangerous conditions.
A restaurant employee who witnessed the fall testified that she had stumbled over one of those pavers close to the restaurant more than fifty occasions, explaining that they were slightly uneven.
The issue of whether a defendant owes a duty of care is a question of law, but to determine the legal question of whether a foreseeable general zone of risk was created by the defendant’s conduct, the court must make inquire into the factual allegations.
With no legislatively imposed duty, non-owners of property may owe a duty of care to their invitees when they are in actual possession or control of the piece of property. The mere fact that a restaurant’s location required patrons to traverse the pavers to enter the restaurant does not mean that it exercised control over those pavers, or had a created a foreseeable zone of risk.
Merely because patrons must walk on a public walkway before getting to the threshold of the business does not transform the situation in to one where the landowner is liable for a dangerous condition that results in injury “off of” the premises. Potential pitfalls along public pathways are a fact of life, and the decision to patronize the business establishment includes the possibility that somewhere along the way, a prospective patron’s route may include terrain that is dangerous through no fault of the business owner.
The court relied Carter v. Capri Ventures, Inc. where the plaintiff and her minor son were guests at one of three hotels owned by the defendant. The various hotels were located on opposite sides of a major highway, and guests were invited to use the amenities at one of the hotels. The plaintiff’s son was killed by a car while he was attempting to cross the highway to use the amenities at the hotel on the other side of the road.
The court affirmed summary judgment, finding that a landowner does not create a common risk associated with public roadways that lead to the landowner’s property, simply by owning land that is adjacent to a public roadway or by inviting people to come onto the landowner’s property where public roadways are used as an access.
In this case, there were no factual allegations or summary judgment evidence to support that a foreseeable zone of risk was actually created by the restaurant’s conduct. To show that, the requisite control must rise to the level where the landowner holds out or uses the adjacent property as part of the business’s premises.
CONDO ASSOCIATION HAD A CONTRACTAL OBLIGATION TO PROVIDE VALET SERVICES WHICH THE ASSOCATION SUBLET TO THE PLAINTIFF’S EMPLOYER; CONSEQUENTLY, THE ASSOCIATION WAS THE PLAINTIFF’S STATUTORY EMPLOYER, AND WORKERS’ COMPENSATION IMMUNITY BARRED THE ACTION AGAINST THE ASSOCIATION WHEN THE PLAINTIFF WAS INJURED WHILE PERFORMING HIS DUTIES AS A VALET.
Bal Harbour Tower v. Bellorin, 47 Fla. L. Weekly D2114 (Fla. 3rd DCA Oct. 19, 2022):
The plaintiff was injured while employed as a valet by American Parking Systems. He sued the defendant, The Bal Harbour Condominium Association, for the injury he sustained on its premises.
The association had entered into a contract with APS to manage and operate the valet parking service at the condominium. The contract required APS to maintain workers’ compensation insurance, which it did.
In the course of delivering luggage, a plastic panel fell from the ceiling of the service elevator and hit the plaintiff on the head.
The association moved for final summary judgment. It asserted that it was plaintiff’s “statutory employer,” because it had sublet its contractual obligation to provide valet services to APS, as found in the declaration of the condominium where the contractual obligation was found. The court agreed and granted the motion.