The Week In Torts – Cases from September 30, 2022
Not the same, really?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 39
CASES FROM THE WEEK SEPTEMBER 30, 2022
TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S MEDICAL MALPRACTICE COMPLAINT WITH PREJUDICE FOR FAILING TO COMPLY WITH PRE-SUIT REQUIREMENTS
Martinez v. Ortiz, 47 Fla. L. Weekly D1964 (Fla. 2nd DCA Sep. 23, 2022):
The plaintiff asserted that a physician negligently misdiagnosed a condition affecting her eye and that the treatment he provided was inadequate for her condition. She asserted that she suffered permanent eye damage as a result of the misdiagnosis.
In her pre-suit affidavit, the plaintiff attached an affidavit of a board certified opthalmologist, who had also completed an additional, one-year fellowship in neuro-ophthalmology. The defendant was a board certified opthalmologist without such a fellowship.
The appellate court found the trial judge “split hairs,” in agreeing with the defendant that the expert was not in the same specialty as the defendant. It reversed the dismissal, and found that the affidavit met the statutory requirement for medical experts under section 766.202(6).
TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT’S RULE 1.540(b) MOTION TO SET ASIDE A DEFAULT JUDGMENT WHEN DEFENDANT MET THE REQUIRMENTS FOR SO DOING
All My Sons Moving & Storage v. A&E Truck Service, 47 Fla. L. Weekly D1957 (Fla. 2nd DCA Sep. 23, 2022):
The plaintiff served defendant with the summons and complaint which the defendant failed to answer.
The trial court ended up entering a default final judgment. Five days later, counsel for the defendant moved to set it aside. Accompanying its motion to vacate, the defendant submitted an affidavit stating that she had been out of the office since the beginning of the pandemic due to her health concerns making her more vulnerable to Covid-19.
Her affidavit stated that she first learned of the lawsuit five days after the default judgment was entered and stated that the court documents had not been properly forwarded to her attention by newly hired office staff.
The affidavit also stated that the defendant had stopped payment on the check to the plaintiff (one of the counts) because the plaintiff had failed to perform promised repairs.
In reviewing the trial court’s refusal to vacate the default judgment (the trial judge found that the company had suffered from chronic disorganization rising to the level of gross negligence even before and after the pandemic), the court explained that Florida has a strong preference for determining lawsuits on their merits, resolving all reasonable doubts in favor of setting aside the default.
The court concluded that the defendant established excusable neglect, and that nothing in the record supported the trial court’s finding of chronic disorganization or gross negligence either before or after the pandemic.
The defendant also proved that it had a meritorious defense and that it moved expeditiously to set aside the default. Because the defendant met its burden of establishing excusable neglect, a meritorious defense, and due diligence, the trial court abused its discretion in denying the motion to set aside the final default judgment.
TRIAL COURT PROPERLY DETERMINED THAT DEFENDANTS WHO OWNED A COMMERCIAL PARKING LOT OWED NO DUTY TO THE PLAINTIFF WHO WAS INJURED WHILE WORKING ON A TRUCK OWNED BY A THIRD PARTY, PARKED IN THAT LOT
Ruiz v. Wendy’s Trucking, 47 Fla. L. Weekly D1959 (Fla. 2nd DCA Sep. 23, 2022):
Defendants owned a commercial parking lot where crushed concrete was kept. It was also leased out as a parking lot for large commercial trucks. The defendants entered into an agreement with a third party who was paid commissions to find truck owners to enter into leases for parking spots. These lease agreements forbade oil changes or engine work from being performed on the lot, but they did allow for emergency repairs.
One of the trucks parked in the lot required a transmission repair, and the owner hired the plaintiff to perform it. The week before the accident, the plaintiff saw other people working on trucks in the lot. The day of the accident, the plaintiff got underneath the truck to begin working on it. He was injured when the driver of the truck started the engine and the truck broke loose and ran him over while he was still under it, causing him catastrophic injuries.
The plaintiffs alleged that the defendants owed a non-delegable duty to maintain their premises in a reasonably safe condition and to prevent unreasonable and dangerous activities from occurring there. Plaintiffs asserted the Defendants breached duties for failing to prevent mechanical repairs from being performed on the property, failing to train or hire someone to supervise the lot, failing to supervise agents and employees, and failing to maintain or make available the necessary safety equipment.
The defendants moved for summary judgment arguing that there was no evidence that they committed any negligence, or that the condition on the property caused the accident. They asserted that the plaintiff was a licensee on the property and they only owed a duty not to willfully and wantonly harm him.
Plaintiff responded that by arguing that there was a disputed issue of material fact as to whether the defendants created a foreseeable zone of risk by permitting repairs to be performed without proper safety measures in place. They also argued that the defendants owed them a duty of care under the ordinary negligence standard, because the accident was a result of their own active or passive negligence rather than a defective condition on the property. Even if the case were a premises liability issue, the plaintiff asserted he was an invitee.
The court observed that the allegations in the complaint indicated that the plaintiffs’ claims were not based on a lot being dangerous in and of itself, but instead on the defendants’ alleged failure to implement safeguards to keep the lot safe for those who entered upon it. Active negligence is when a tortfeasor actually does something to harm the injured party, and passive negligence means that the tortfeasor’s failure to do something to its property results in harm to the injured victim.
Plaintiffs asked the court to construe their claims as either active or passive ordinary negligence. The appellate court found they were premises liability claims.
In ordinary negligence cases, the defendant owes the plaintiff a duty of reasonable care regardless of the relationship between the defendant and the plaintiff, and the premises.
However, in premises cases, the defendants’ duty to the plaintiff is dependent upon the plaintiff’s status to the land.
The plaintiffs’ theory of liability clearly depended upon the fact that the accident occurred on the defendants’ lot, even though a truck breaking loose could have happened anywhere. If the accident had occurred off the lot, the plaintiffs would have had no basis to sue the defendants. This was not a case where the landowner, or one of her agents or employees, was operating equipment on the lot in such a way that it created a dangerous situation which the landowner then failed to rectify. Nor was it a case where the landowner actively engaged in conduct that injured the plaintiff.
The plaintiffs’ claims were that the defendants failed to do something on the lot that resulted in harm to the plaintiffs, i.e., they failed to properly prohibit mechanical repairs from being performed on the lot or to implement safeguards related thereto. Consequently, the court construed their claims as being predicated on premises liability involving passive negligence.
The court advised that even if it construed the claims as being based on ordinary negligence, the disposition would be the same, even viewing the plaintiff as an invitee.
In premises liability claims, invitees are owed (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) a duty to warn of concealed dangers that the landowner knows about or should have known about which are unknown to the invitee and cannot be discovered by him or her through the exercise of due care.
The defendants asserted that as to the duty to warn, they had equal knowledge to that of the plaintiff, and their knowledge was not superior regarding the danger.
The court said there was no basis to hold the defendants liable for failure to warn because the defendants would have had to have known that the performance of mechanical repairs on the lot was dangerous, and the plaintiff would have to have no knowledge of that fact and been without the ability to discover with due care, which was not the case.
As to the duty to use reasonable care in maintaining the property in a reasonably safe condition, the landowner is not an insurer of the safety of persons on his or her property. Nor is the landowner subject to strict liability for injuries resulting from dangerous conditions on owned property.
The essence of the plaintiff’s claim was that the defendants owed them a duty to prevent mechanical work from being performed without having safeguards in place. But to adopt that argument would render any landowner susceptible to a negligence suit simply based on ownership status. Such a scenario did not give rise to a foreseeable zone of risk requiring the landowner to employ safeguards to mitigate that risk.
The court also said there was no known dangerous condition because it was undisputed that the lot was being used as a parking lot, and there were no allegations that the defendants advertised it as a truck repair facility. The defendants could not have created a known dangerous condition merely by owning the lot and allowing trucks to park on it.
While the plaintiffs raised the issue of control of the property in their reply brief, because they had not raised it in their initial brief, the court would not consider it. Even looking at that argument of the defendants having control of the lot because they had a right to enter it and stop people from working on trucks, a right to enter leased premises is not sufficient to constitute control or to impose a duty on the landlord to protect third parties.
Additionally, the plaintiffs cited no authority to establish that there was a general duty on landowners to properly prohibit mechanical repairs from occurring on privately owned property, or that the failure to do so results in a foreseeable zone of risk. The defendants’ ownership of the lot did not create a foreseeable zone of risk meaning that the defendants were under no duty to take further action to prevent mechanical repairs from being performed on the lot or to implement safeguards.