Going Federal one step at a time

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 39

CASES FROM THE WEEK OF OCTOBER 3, 2026

FLORIDA SUPREME COURT AMENDS RULE 1.280(k) TO ALIGN MORE CLOSELY WITH FEDERAL DISCOVERY RULES—UNSIGNED DISCOVERY DOCUMENTS NEED NOT BE ACTED UPON AND MUST BE STRICKEN UNLESS PROMPTLY CORRECTED

In Re: Amendments to Florida Rule of Civil Procedure 1.280(k), 51 Fla. L. Weekly S297 (Fla. October 1, 2026):

The Florida Supreme Court adopted amendments to Rule 1.280(k), governing the signing of initial discovery disclosures, discovery requests, responses, and objections. The changes are another effort to bring Florida closer to the Federal Rules.

The amendments reorganize the existing rule and add a new subdivision specifically addressing the failure to sign discovery documents.

Under the amended rule, opposing parties have no obligation to act upon an unsigned disclosure, discovery request, response, or objection until the document is signed. The trial court must strike the unsigned document unless the required signature is promptly supplied after the omission is brought to the attorney’s or party’s attention.

The existing certification obligations remain important. By signing discovery documents, an attorney or unrepresented party certifies, after reasonable inquiry, that the disclosure is complete and correct, or that the discovery request, response, or objection is legally warranted, not made for an improper purpose, and not unreasonable or unduly burdensome in light of the case.

A certification made without substantial justification remains subject to mandatory sanctions, which may include reasonable expenses and attorney’s fees.

The amendments become effective January 1, 2027, at 12:01 a.m.

FLORIDA SUPREME COURT AMENDS CIVIL PROCEDURE RULES GOVERNING PLEADINGS, COMPLEX LITIGATION, FINAL DISPOSITION FORMS AND JUROR QUESTIONNAIRES—REPLACES “PRO SE” WITH “UNREPRESENTED” THROUGHOUT THE AFFECTED RULES

In Re: Amendments to Florida Rules of Civil Procedure, 51 Fla. L. Weekly S298 (Fla. October 1, 2026):

The Florida Supreme Court considered proposed amendments to several Rules of Civil Procedure, including Rule 1.100 governing pleadings and motions, Rule 1.201 governing complex litigation, Rule 1.545 governing final disposition forms, and Form 1.983, the prospective juror questionnaire.

The Court consolidated the proceeding with a separate rules case concerning depositions and nonparty document production and adopted the proposed amendments with modifications.

One of the changes was the replacement of the term “pro se” with “unrepresented” throughout the affected rules. The Court explained that “unrepresented” more plainly describes a litigant’s status and better conforms to terminology used in the Federal Rules of Civil Procedure.

The amendments also update and clarify language in the rules governing pleadings and complex case management. The changes retain the requirement that counsel and unrepresented parties confer before case management conferences or hearings in complex cases and notify the trial court immediately when a scheduled conference or hearing is no longer necessary. Failure to provide timely notice may result in sanctions.

The Court also adopted corresponding amendments to the final disposition form rule and prospective juror questionnaire.

The amendments become effective January 1, 2027, at 12:01 a.m.

FLORIDA SUPREME COURT AMENDS RULES GOVERNING DEPOSITIONS AND NONPARTY DOCUMENT SUBPOENAS—OBJECTIONS MUST STATE SPECIFIC GROUNDS, AND A PARTY SEEKING DOCUMENTS MUST RESOLVE AN OBJECTION BEFORE OBTAINING PRODUCTION

In Re: Amendments to Florida Rules of Civil Procedure 1.310 and 1.351, 51 Fla. L. Weekly S299 (Fla. October 1, 2026):

The Florida Supreme Court adopted amendments to Rules 1.310 and 1.351, governing oral depositions and the production of documents and things from nonparties without deposition.

The most significant changes concern Rule 1.351, a rule routinely used to obtain medical records and other nonparty documents in personal injury litigation.

The Court added subdivision (b)(6), requiring objections to nonparty subpoenas to state their grounds with specificity, including the reasons supporting the objections. The Court declined, however, to adopt a proposal that would have required all objections to nonparty subpoenas to be filed with the trial court.

The Court also clarified what happens after an objection is made. Under amended Rule 1.351(c)(7), a party cannot simply proceed with production despite an outstanding objection. Instead, the requesting party must obtain a ruling under Rule 1.351(d), reach an agreement resolving the objection, or pursue production at a deposition under Rule 1.310 while complying with Rule 1.350.

The Court declined another proposed amendment that would have required documents subpoenaed for a deposition to be produced only at the deposition unless the parties and deponent agreed otherwise.

The amendments become effective January 1, 2027, at 12:01 a.m.

PUNITIVE DAMAGES CLAIM COULD NOT BE BASED SOLELY ON SHUTTLE COMPANY’S ALLEGED FAILURE TO ENSURE DRIVER HAD PROPER PASSENGER ENDORSEMENT—LICENSING VIOLATION HAD NO DIRECT CONNECTION TO REAR-END COLLISION AND DID NOT ESTABLISH INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE

Limousines of South Florida, Inc. v. Levit, 51 Fla. L. Weekly D1950 (Fla. 3d DCA September 23, 2026):

The defendant limousine company hired a driver who possessed a valid Class B commercial driver’s license. The dispute concerned whether she also had the required passenger endorsement.

Several months after being hired, the driver was operating an empty passenger shuttle bus when she failed to brake in time and hit the rear of the plaintiff’s vehicle. No injuries were reported at the scene, and photographs (reprinted in the case) showed very limited damage to the plaintiff’s rear bumper.

The plaintiff and three passengers filed a thirty-two-count complaint alleging various forms of negligence. They later sought leave to amend to add punitive damages, arguing that the defendant’s decision to hire and permit the driver to operate the shuttle without the required passenger endorsement created an imminent danger and demonstrated intentional misconduct or gross negligence.

The trial court allowed the amendment, finding that permitting a driver without the required endorsement to transport passengers, exposed the public to risk and demonstrated conscious disregard for the safety of others.

The appellate court reversed. Under section 768.72, Florida Statutes, a plaintiff seeking punitive damages must make a reasonable evidentiary showing that the defendant engaged in intentional misconduct or gross negligence. The appellate court acknowledged the Florida Supreme Court’s recent clarification in Perlmutter that clear and convincing evidence is not required at the pleading stage. Still, the proffer must be sufficient for a reasonable person to conclude that the statutory standard has been met.

A licensing or statutory violation, standing alone, is not enough. There must be additional conduct demonstrating the specific intent required for intentional misconduct or the conscious disregard necessary for gross negligence.

Here, the alleged licensing deficiency had no direct relationship to the driver’s failure to brake or the resulting collision. The shuttle was empty, the impact was minor, and the plaintiff proffered no additional conduct showing that the driver or limousine company acted with the heightened culpability required for punitive damages.

The appellate court emphasized that punitive damages require a direct nexus between the conduct alleged to warrant punishment and the injury suffered by the plaintiff. The absence of a passenger endorsement did not cause the driver to fail to brake.

SUMMARY JUDGMENT AFFIRMED FOR CAR DEALERSHIP WHERE PLAINTIFF COULD NOT IDENTIFY THE SUBSTANCE THAT CAUSED HIS FALL OR ESTABLISH CONSTRUCTIVE KNOWLEDGE—THE FACT THAT RAINWATER REGULARLY ENTERED THE SERVICE BAYS COULD NOT ESTABLISH THAT A DANGEROUS CONDITION REGULARLY OCCURRED WHEN THE PLAINTIFF DID NOT KNOW WHAT HE FELL ON.

Ausburn v. Wesley Chapel-T, LLC, 51 Fla. L. Weekly D1984 (Fla. 2d DCA September 25, 2026):

The plaintiff was an automobile glass technician who went to the defendant Toyota dealership on a rainy afternoon to perform work on a customer’s vehicle. Because of the rain, he asked the service manager whether he could work somewhere under cover. The manager directed him into a service bay.

After the plaintiff pulled his vehicle into the bay, he stepped out, and both feet immediately slipped out from underneath him. He attempted to grab the door handle to break his fall but missed and landed on the floor.

The plaintiff sued the dealership for premises liability and negligence, alleging that the wet, slippery floor constituted a dangerous condition. The defendant moved for summary judgment, arguing that the plaintiff could not establish actual or constructive knowledge of the condition.

The problem for the plaintiff was that he could not identify what caused him to fall. He testified that he did not know whether he slipped on oil, water, or something else. He had not noticed any puddle where he stepped, could not describe the substance, and did not know how long anything might have been on the floor.

The evidence established that water sometimes entered the service bays on rainy days. Employees testified that the floors were designed to be slip-resistant, contained drainage grates, and sloped to allow water to drain. Although the dealership did not have a formal written inspection schedule, employees were expected to clean up spills and address excessive water. There was also no evidence of prior slip-and-fall accidents in the service area.

The trial court granted summary judgment, finding no evidence that the defendant had actual or constructive knowledge of the condition that allegedly caused the plaintiff’s fall.

The appellate court affirmed. Under section 768.0755, Florida Statutes, a plaintiff injured by a transitory foreign substance must establish actual or constructive knowledge. Constructive knowledge may be shown through evidence that the condition existed long enough that the defendant should have discovered it, or that the dangerous condition occurred with such regularity that it was foreseeable. Here, the plaintiff could not establish either.

Because he could not identify the substance, describe its condition, or establish how long it had been present, there was no basis to infer that the defendant should have discovered it before the fall. The existence of tire tracks or water elsewhere in the service area also did not establish notice of a substance at the particular location where the plaintiff fell.

The plaintiff also could not establish constructive knowledge by arguing that rainwater regularly entered the service bays. The statute requires evidence of a dangerous condition occurring with regularity—not just evidence that water sometimes appears on the floor.

The appellate court explained that even assuming the plaintiff slipped on rainwater, there was no evidence that the presence of rainwater regularly made the service bay dangerously slippery. The absence of prior falls and the evidence concerning the slip-resistant flooring further undermined that theory.

The court also rejected the plaintiff’s attempt to rely on a series of inferences—that water accumulated, remained on the floor, created a dangerous condition, and caused his fall—when the foundational inference had not been established to the exclusion of other reasonable explanations. It noted that the rainwater could have come from the very vehicle the plaintiff had just driven into the bay.

Without evidence establishing the defendant’s constructive knowledge of an identifiable dangerous condition, the trial court properly entered summary judgment.