A blow in the accident and then by the court

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 36

CASES FROM THE WEEK OF SEPTEMBER 11, 2026

COURT ALLOWS A PARTY TO POINT OUT THE “ABSENCE” OF PROPERLY EXCLUDED EVIDENCE IN CLOSING ARGUMENT (EVEN THOUGH THE ARGUMENT WAS CATEGORICALLY FALSE)—ANY ERROR WAS HARMLESS WHERE COURT PROPERLY EXCLUDED THE EVIDENCE AS HEARSAY AND THE PLAINTIFF REJECTED A CURATIVE INSTRUCTION AS NOT GOING FAR ENOUGH (REQUESTING TO BRING THE EVIDENCE IN)

Velez Rivera v. Lopes, 51 Fla. L. Weekly D1845 (Fla. 4th DCA Sept. 2, 2026):

The plaintiff was a passenger when the vehicle she was riding in was struck by another vehicle driven by the defendant. The defendant named the driver of the vehicle in which the plaintiff was riding as a third-party defendant, and all issues — liability, causation and damages – were hotly contested at trial.

Permanency was one of the “hottest” hotly contested issues. The plaintiff’s treating spine surgeon testified that the collision caused a herniated disc requiring cervical surgery and that her injuries were permanent; the defense experts attributed her condition to degeneration and opined that the collision caused, at most, a temporary sprain or strain.

Before trial, the defendant successfully moved to exclude as hearsay a notation in the plaintiff’s final evaluation assigning her a four-percent permanent whole-body impairment. The Plaintiff did not contend that the notation was admissible. Still, the admitted portion of the same record stated that no further functional improvement was reasonably anticipated and that maintenance care had been offered.

In closing, defense counsel argued that none of the plaintiff’s doctors had ever rendered an opinion that she suffered a permanent injury, and that none of her records showed a permanent impairment.

The plaintiff objected, pointing to the excluded rating. The court offered a curative instruction, but Rivera rejected it as inadequate and instead asked to reopen the evidence to admit the unredacted record. The court refused.

The jury apportioned sixty-five percent fault to the defendant and thirty-five percent to the non-party driver of the plaintiff’s vehicle. It awarded $70,040.80 in past medical expenses but found no permanent injury. After reductions, the final judgment was $10,834.34.

The appellate court affirmed.

It ruled that a party may refer in closing to the evidence actually before the jury and point out the absence of evidence on an issue (even when it is there in reality and the court has excluded it).

The cases condemning counsel for excluding evidence and then exploiting its absence involved evidence that had been improperly excluded; here, the permanency notation was properly excluded.

According to the court, for purposes of the jury’s deliberations, it did not exist, and the defense was entitled to argue that the plaintiff presented no admissible permanency opinion from her treating doctor’s group.

While the court did “not entirely condone” this closing argument (the categorical statement that no one at the treating group had ever rendered a permanency opinion was objectively false) the accurate formulation would have been that the jury heard no such evidence.

Still, the court concluded that such “imprecision” was harmless because the core message was still proper. The plaintiff had presented other permanency evidence, and one remark created no reasonable possibility of affecting the verdict. The court found the plaintiff had also waived the complaint by rejecting the offered curative instruction, and reopening the evidence would only have placed the same inadmissible hearsay before the jury.

The court taught litigants a painful trial-practice lesson: be careful about failing to oppose a key exclusion of evidence and accept a curative instruction in hopes of saving a victim’s case.

HOT CEMENT POOL DECK AND BEACH SAND UNDER THE FLORIDA SUMMER SUN WERE SO COMMON AND OBVIOUS THAT THEY CREATED NO DUTY TO WARN OR PROTECT—GUEST’S DIABETIC NEUROPATHY DID NOT CREATE A SPECIAL DUTY

Lekas v. Dezer Properties, LLC, 51 Fla. L. Weekly D1808 (Fla. 3d DCA Sept. 2, 2026):

The Plaintiff was vacationing at a beach resort in Miami in August of 2022, when the daily temperature was approximately ninety-five degrees. He repeatedly walked and stood barefoot on the cement pool deck and beach sand. Because he suffered from diabetic neuropathy, he did not feel the heat. On the third day, he noticed the skin on his feet peeling. His condition later required two hospitalizations and the partial amputation of his right foot.

The Plaintiff sued the entities that owned, operated and developed the resort. The defendants moved to dismiss, arguing that any danger from hot concrete and sand in Florida in August was open and obvious. The plaintiff responded that the danger was not obvious to him because his neuropathy prevented him from perceiving it and that his condition created a special duty. The trial court dismissed the complaint with prejudice.

The Third District affirmed. Although a landowner ordinarily must maintain its premises in a reasonably safe condition and warn invitees of concealed dangers, some conditions are so common, innocuous, and obvious that they are not dangerous conditions as a matter of law.

Cement pool decks and sandy beaches are ordinary features of Florida life and are not inherently dangerous. Even assuming their heat posed a danger, the court held it was so obvious that an invitee could reasonably be expected to discover it and protect himself.

The court further held that the plaintiff’s diabetic neuropathy did not transform the ordinary condition into a dangerous one, nor did it impose a special duty on the resort. The duty analysis remains “objective,” and the plaintiff’s inability to feel an otherwise obvious hazard did not change the legal character of the condition. While he experienced a devastating injury, the defendants owed no duty under these circumstances.

ORDER DENYING MOTIONS TO DISMISS REVERSED WHERE TRIAL COURT FAILED TO APPLY VENETIAN SALAMI TO THE PERSONAL-JURISDICTION DISPUTE OR CONDUCT THE REQUIRED KINNEY FORUM-NON-CONVENIENS ANALYSIS

Doe v. Pencov, 51 Fla. L. Weekly D1836 (Fla. 4th DCA Sept. 2, 2026):

The defendants appealed an order denying their motions to dismiss for lack of personal jurisdiction and forum non conveniens. While the case contains no facts, the court reversed, remanding with directions that the trial court had to apply the two-step procedure required by Venetian Salami Co. v. Parthenais. That meant that the court had to first determine whether the parties’ affidavits and other sworn materials could be harmonized, and if not, then the trial court had to conduct a limited evidentiary hearing to resolve the disputed material jurisdictional facts.

The court also reversed the denial of all appellants’ motions to dismiss for forum non conveniens.

On remand, the court ordered the trial court to conduct the analysis required by Kinney System, Inc. v. Continental Insurance Co. and Florida Rule of Civil Procedure 1.061, and to make express findings addressing the adequacy of the alternative forum, the private-interest factors, the public-interest factors if applicable, and whether the plaintiffs could reinstate their suit in the alternative forum without undue inconvenience or prejudice. A denial without that analysis and those findings cannot stand.