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The Week in Torts – Cases from the Week of August 10, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 32
CASES FROM THE WEEK OF AUGUST 10, 2018
SITTING EN BANC, THE THIRD DISTRICT HELD THAT IN ORDER FOR A CONTRACT TO BE RESCINDED ON THE BASIS OF UNILATERAL MISTAKE, IT IS NOT NECESSARY THAT THE PARTY SEEKING RESCISSION HAS TO PROVE THAT THE MISTAKE WAS INDUCED BY THE PARTY SEEKING TO BENEFIT FROM THE MISTAKE–AS LONG AS THE MISTAKE WAS NOT MADE AS A RESULT OF AN EXCUSABLE LACK OF DUE CARE, AND THE OTHER PARTY HAS NOT CHANGED ITS POSITION IN RELIANCE ON THE CONTRACT, RESCISSION IS ACCEPTABLE.
DePrince v. Starboard Cruise Services, Inc., 43 Fla. L. Weekly D1734 (Fla. 3rd DCA August 1, 2018):
The Third District announced that a party seeking rescission of a contract based on a unilateral mistake does not have to prove that he or she was induced into making the mistake by the other party. Instead, a contract may be set aside on the basis of the unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) the denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.
Florida law holds that a person should be relieved of the consequences of a unilateral mistake unless there is detrimental reliance upon the mistake, or an “inexcusable” lack of due care.
The facts of this case involved a woman’s purchase of a 20.64 carat diamond on a cruise ship. She paid based on what she believed to be the total price ($235,000). Shortly after the sale, the ship discovered it was actually the price per carat. The court ultimately allowed the ship to rescind the deal.
THE TWELVE YEAR STATUTE OF REPOSE FOR FRAUD IS CONSTITUTIONAL.
Garofalo v. Proskauer Rose LLP, 43 Fla. L. Weekly D1718 (Fla. 4th DCA August 1, 2018):
Plaintiffs sued their law firm for an opinion letter the firm wrote regarding the legitimacy of a tax shelter strategy, back in 2002. The firm assured it would provide legal support if there were a dispute with the IRS. The IRS audited the plaintiffs’ tax returns and ultimately concluded that the strategy was not a proper tax shelter.
In 2016, the plaintiffs sued several defendants, including the law firm, arguing that they all conspired to lure them into participating in this tax shelter strategy. The allegations against the law firm were that it allegedly helped design, develop, market and implement the strategy, as part of a conspiracy to commit fraud, knowingly provided false information in the opinion letter, and continued its involvement in the conspiracy by withholding information from the plaintiffs after they filed their returns.
The law firm moved to dismiss the complaint based on the statute of repose for fraud found in section 95.031(2)(a).
The firm argued that the plaintiffs’ “continuing omission theory” would eviscerate the statute of repose, because the law firm’s duty would continue on indefinitely. The trial court agreed and dismissed the plaintiffs’ complaint.
The Fourth District affirmed the trial court’s dismissal. Not only did it rule that there was no continuing duty, it also ruled that the statute of repose with respect to fraud was constitutional, even though it prohibits fraud actions before they accrue.
Statutes of repose are valid legislative decisions to limit causes of action to balance the rights of the injured person against the exposure of defense to liability for endless periods of time. That is because over time, memories fade, documents are destroyed or lost, and witnesses disappear.
Although the statute of repose may cause some injustice by eliminating a valid cause of action, it addresses the countervailing concern regarding the difficulty in defending against the lawsuit many years after the conduct at issue occurs.
BECAUSE CONDUCT OF THE FABRE DEFENDANT DID NOT RISE TO THE LEVEL OF INTENTIONAL TORT, IT WAS ERROR TO KEEP THE PERSON OFF THE VERDICT FORM.
Regal Entertainment Group v. Navas, 43 Fla. L. Weekly D1728 (Fla. 3rd DCA August 1, 2018):
A woman at a movie observed another patron stand up in the middle of the movie and begin to pace up and down the aisle, while speaking to himself for about 8-10 minutes. She then saw the patron exit the theater, only to return approximately 30 seconds later whereupon he started yelling at another patron sitting in the bottom front row.
On edge because of the shooting that had occurred in Aurora, Colorado only ten days earlier, the other patrons frantically exited the theater after the man’s outburst. The plaintiff was among the patrons who fled, and while descending the stairs of the theater, she was pushed from behind and was injured.
The plaintiff underwent multiple surgeries to repair her fracture, and afterwards struggled to resume her active lifestyle. She sued the movie theater alleging that the other patron’s conduct prompted other patrons to frantically exit the theater.
When the jury deliberated, it found the movie theater 40% negligent and the screaming patron 60%. The plaintiff moved for a directed verdict, arguing the man’s liability was intentional and should be stricken. The trial court entered an Amended Final Judgment striking the jury’s apportionment of 60% of the comparative fault to the trouble-making patron.
The court reversed. It found the trial court had improperly removed the “theater-disrupter” as a Fabre defendant, having previously found at most that he was negligent, and not intentionally responsible. Because his conduct did not rise to the level of intentional tort, his negligence should have been apportioned by the jury as had been originally done.
TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT, WHERE THERE WAS NOT COMPETENT SUBSTANTIAL EVIDENCE TO SUPPORT THE REQUIRED FINDING THAT A CLEAR AND UNEQUIVOCAL GRANT OF AUTHORITY WAS GIVEN TO THE DEFENDANT’S ATTORNEY TO ENTER INTO THE AGREEMENT.
St. Mary’s School of Medicine Limited v. Zabaleta, 43 Fla. L. Weekly D1729 (Fla. 3rd DCA August 1, 2018):
A man sued the defendant St. Mary’s, his former medical school, after it refused to issue him a medical degree. The school asserted that it did not issue the degree, because the man had only paid a portion of his tuition, and had failed to complete the required course curriculum.
The litigation went on for 12 years before the school’s attorney initiated settlement negotiations, by emailing a settlement offer to the plaintiff’s attorney.
Over the next few months, the two attorneys attempted to negotiate the settlement terms through emails. Throughout the negotiations, the defense lawyer represented that he had the defendant’s authorization to extend and accept certain offers, but not to resolve the matter.
After an exchange of terms, the defense lawyer sent a letter to the trial court notifying that a settlement could not be reached, and informed plaintiff’s counsel that the hospital was not inclined to settle because it was unable to verify the plaintiff’s credentials.
The court observed that a party seeking to compel enforcement of a settlement bears the burden of proving that an attorney has the clear and equivocal authority to settle on his or her client’s behalf. A trial court’s factual findings that there is clear and unequivocal grant of authority by the client to the attorney to settle, must be supported by competent substantial evidence in order to be upheld on appeal.
There is a very high standard set by the case law, before a court can enforce a settlement agreement.
At the evidentiary hearing conducted in this case, the plaintiff’s attorney claimed that one of the defense counsel’s emails memorialized settlement terms, but the defense attorney claimed that everyone was aware that he had to obtain his client’s authorization to agree. The court observed that while some of the emails evidenced some authority to negotiate and even extend or accept certain offers, there was no evidence presented that the defendant hospital had authorized its lawyer to enter into the specific settlement agreement that plaintiff was seeking to be enforced. In fact, throughout the email exchanges, the defendant consistently indicated that he needed authorization.
Because there was not competent substantial evidence in the record to support the required finding of a “clear and unequivocal grant of authority” given to the defense lawyer “to enter into the settlement agreement,” the court reversed.
STATUTORY AMENDMENTS EXPANDING SOVEREIGN IMMUNITY TO COVER NON-PROFIT INDEPENDENT UNIVERSITIES THAT PROVIDE PATIENT SERVICES, FOUND TO BE CONSTITUTIONAL.
Bean v. University of Miami, 43 Fla. L. Weekly D1741 (Fla. 3rd DCA August 1, 2018):
In 2011, the legislature expanded the immunity in section 768.28(9)(b) and (10)(f) of Florida Statutes to cover non-profit independent universities that agree to provide patient services at government teaching hospitals as part of an affiliation agreement. These universities and their employees, as the amendment provides, are treated as agents of the government teaching hospital, and are covered by the immunity in section 768.28 to the extent that they provide patient services consistent with the affiliation agreement.
The University of Miami School of Medicine entered into an affiliation agreement with Miami-Dade County Public Health Trust (the government agency that operates Jackson Memorial Hospital). It moved to dismiss plaintiff’s lawsuit for malpractice based on the expanded immunity. The trial court found that the expanded immunity did not violate the Florida Constitution, dismissed the suit, and the Third District affirmed.
The Third District found that these amendments did not violate the sovereign immunity, equal protection, due process, access to courts, jury trial or private debt provisions of the Florida Constitution. Therefore the defendants were immune under the statute.
NO NEED TO COMPLY WITH PRESUIT REQUIREMENTS BECAUSE CLAIM DID NOT INVOLVE MEDICAL MALPRACTICE-ACT CAUSING PLAINTIFF’S INJURY DID NOT DIRECTLY RESULT FROM HOSPITAL’S “PROVISION OF MEDICAL SERVICES REQUIRING PROFESSIONAL JUDGMENT OR SKILL” AND THUS NOT SUBJECT TO MEDICAL MALPRACTICE LAW.
Simmons v. Jackson Memorial Hospital, 43 Fla. L. Weekly D1749 (Fla. 3rd DCA August 1, 2018):
Plaintiff was a resident at a psychiatric patient facility operated by the hospital. Another patient came into his room and beat him with a metal handrail that the second patient had removed from a hallway wall of the hospital. The patient suffered injuries to his face and head, and sued the hospital for negligence.
The hospital moved to dismiss, arguing that the plaintiff had stated a claim for medical malpractice and failed to comply with presuit notice requirements. The court explained that negligence claims constitute “medical malpractice,” when the claim “arises out of the rendering of or the failure to render medical care or services.”
As the court observed, statutory restrictions on medical malpractice claims make a plaintiff’s litigation path significantly more formidable than a claim sounding in ordinary negligence. Medical malpractice has a shorter statute of limitations. Presuit notice is a condition precedent to bringing a claim, and there are more restrictions on proof in a medical malpractice claim.
This dichotomy makes the proof of a medical malpractice claim much more complicated than the proof of an ordinary negligence claim (which is why there are many cases which address the distinction).
Fairly recently, the Florida Supreme Court explained that for a claimant to sound in medical malpractice, the act for which the claim arises must be directly related to medical care or services which require the use of professional judgment or skill. That inquiry involves determining whether proving the claim requires the plaintiff to establish that the allegedly negligent care represented a breach to the prevailing professional standard of care, as testified to by a qualified medical expert.
The Florida Supreme Court made clear that the analysis focuses not only on the standard of care implicated by the claimant’s allegations, but also upon the actual act causing the claimant’s damages.
In National Deaf Academy v. Townes, 242 So.3d 303 (Fla. 2018), the Florida Supreme Court focused not only on the standard of care implicated by the claimant’s allegations, but also upon the actual act causing the claimant’s damages.
There, the Court concluded that an aggressive hold caused the patient’s injuries, and proof that the defendant’s nurse negligently applied such a hold did not require testimony from a medical expert on the professional standard of care.
The Court concluded that the defendant’s administering of the aggressive hold may have been required to control the patient, but was not part of an effort to staff or to provide the patient with medical care or services. Thus, the Court found the claim sounded in ordinary negligence, because for negligence to be medical malpractice, “the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill.”
Acknowledging that the Townes decision might not transform this “grey area” into something that is black and white, the application of that case required reversal of the trial court’s dismissal of the plaintiff’s complaint in this case. Here, the injury did not directly result from the hospital’s provision of medical care or services requiring staff’s professional judgment or skill, and instead his injuries were not occasioned by acts directly related to medical care or treatment which would implicate an inquiry into medical malpractice.
COURT CANNOT GRANT SUMMARY JUDGMENT WHERE A DEFENDANT ASSERTS LEGALLY SUFFICIENT AFFIRMATIVE DEFENSES THAT ARE NOT REBUTTED.
Blade of Orlando, LLC v. Delsanter, 43 Fla. L. Weekly D1781 (Fla. 5th DCA August 3, 2018):
Because the final judgment failed to address the first count of the plaintiff’s complaint, and several of their affirmative defenses to defendant’s counter-claim (which were not disproved by the record), it was error for the court to grant summary judgment (in the face of sufficient affirmative defenses that were unrebutted).
ERROR TO DENY RULE 1.540(b) MOTION TO SET ASIDE JUDICIAL DEFAULT WHERE MOVANT ESTABLISHED EXCUSABLE NEGLECT, HAD A MERITORIOUS DEFENSE AND ACTED WITH DUE DILIGENCE.
Professional Golf Global Group v. Huynh, 43 Fla. L. Weekly D1784 (Fla. 2nd DCA August 3, 2018):
Defendant was served with a summons and the complaint both in his individual capacity, and as an officer of the corporate defendant.
Before the 21-day period to file the response expired, the defendant sent a letter to the plaintiff and her attorney advising that he was seeking an attorney to represent both parties, and needed additional time to respond to the complaint. The letter was also mailed to the court.
The plaintiff filed a motion for a clerk’s default on that same day which was entered, and a few weeks later filed a motion for default judgment.
Counsel for the defendant filed a notice of appearance two weeks after that, then filed a motion to vacate the default and the default judgment. While the motion was initially unsworn, the trial court allowed them to have additional time to prepare an affidavit in support.
The affidavit raised a number of defenses to the complaint, specifically, the affidavit stated that an agreement between the parties was never intended to be a loan and that the plaintiff never loaned this defendant or the co-defendant any money.
Because the record reflected that the defendants acted diligently once they were served with the lawsuit and again when they learned of the default, because they stated a meritorious defense, and because they showed excusable neglect by trying to find a lawyer, and keeping the plaintiff and the court apprised of these efforts, the trial court abused its discretion in failing to vacate the default judgment.