The Week In Torts – Cases from October 4 2024
A duty even when obvious
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 40
OCTOBER 4, 2024
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST TENANT WHO FELL ON “OPEN AND OBVIOUS” LOOSE TILES –LANDLORD WAS ON NOTICE AND HAD A CONTINUING DUTY TO REPAIR AND MAINTAIN FLOORING, EVEN WITH CONDITION THAT WAS OPEN AND OBVIOUS
Perez v. Belmont at Ryals Chase Condominium, 49 Fla. L. Weekly D1939 (Fla. 2nd DCA Sep. 25, 2024):
A couple leased an apartment in 2018. Pursuant to the terms of the lease, the landlord was responsible for the maintenance and repairs of foundations, floors, structural components and other areas. The lease prohibited tenants from making any alterations or improvements to the unit without first obtaining the landlord’s written consent.
Over the period that the plaintiff rented the unit, the floor tiles inside the sole entrance became loose, forcing the plaintiff to walk through the area where the loose tiles were to access his unit. On two occasions, the plaintiff’s wife complained about the loose tiles to the owner of the property management company and to the maintenance supervisor. In 2019, the plaintiff fell on the loose tiles.
The trial court granted summary judgment for the defendant, finding that the alleged dangerous condition was open and obvious.
A landlord’s duty to its residential tenant can be properly divided into a pre-possession duty and post-possession duty. Before allowing a tenant to take possession of the residence, a landlord has a duty to reasonably inspect the premises, and to make repairs necessary to transfer a reasonably safe dwelling to the tenant, unless defects are waived by the tenant.
After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant.
Here, the loose floor tiles at the entryway of the unit were a dangerous condition. The plaintiff’s wife twice notified the landlord and property manager of the loose tiles prior to his fall, and this notice of the defective floor tiles could never be mistaken as a waiver. Upon receiving notice of the dangerous condition, both defendants had a continuing duty to repair the tiles.
Accordingly, the appellate court reversed entry of summary judgment, finding that the trial court erred in determining that the owner and property manager owed no duty to the plaintiffs.
THE PLAINTIFF’S FAILURE TO REFUTE A DEFENDANT’S AFFIDAVIT THAT FULLY DISPUTED PLAINTIFF’S JURISDICTIONAL ALLEGATIONS WAS FATAL TO PLAINTIFF’S ABILITY TO GET JURISDICTION OVER A FOREIGN CORPORATION
Pipistrel d.o.o. v. Cicin, 49 Fla. L. Weekly D1942 (Fla. 3rd DCA Sep. 25, 2024):
The plaintiff’s husband was killed in a plane crash. Plaintiff sued a Slovenian aircraft component manufacturer as well as an Italian aircraft manufacturer related to it.
The Slovenian company moved to dismiss for lack of personal jurisdiction and filed the requisite affidavit stating that it did not do any business in Florida, maintained no offices, had no officers or directors, etc.
The plaintiff amended her complaint to assert that the defendant had routinely marketed Pipistrel products in the United States and in Florida, citing to shows it conducted in Sebring and Zephyrhills, demo flights in Florida, employees in Florida etc.
The defendant again filed an affidavit stating it did not design, manufacture or sell the aircraft involved in the accident and did not market, sell or deliver any aircraft parts in Florida.
The plaintiff filed a response in opposition but did not file any countervailing affidavits. Instead, the plaintiff only provided email communications between her husband and representatives from Pipistrel USA, along with an attorney declaration which contained no substantive evidence.
Because the plaintiff failed to refute the legally sufficient factual allegation set forth in the defendant’s affidavit, the trial court should have granted its motion to dismiss for lack of personal jurisdiction.
DEFAULT JUDGMENT REVERSED BECAUSE DEFENDANT DID NOT RECEIVE PROPER FAIR NOTICE OF THE CALENDAR CALL
Schneider v. Tirikian, 49 Fla. L. Weekly D1945 (Fla. 3rd DCA Sep. 25, 2024):
The plaintiffs sued the defendant for multiple causes of action in a business dispute.
After several years of litigation, the case was placed on the trial docket. When the case was not reached, it was rolled to a subsequent trial docket, but the court reset the trial and entered an order for a live in-person calendar call for the same day, an hour and 20 minutes later. The order advised that failure to appear would result in sanctions not limited to the dismissal of the action or other sanctions.
The pro se defendant resided in France and failed to appear at the calendar call. The plaintiffs moved for default and the trial court granted the motion.
The appellate court reversed. It found that under these circumstances, the defendant did not receive adequate notice of a need to be present and his due process rights were violated.
Additionally, while there is an argument about whether the defendant preserved the issue, the court wrote that a denial of due process constitutes fundamental error and a litigant may raise that issue for the first time on appeal.