The Week in Torts – Cases from the Week of August 26, 2016
FLORIDA LAW WEEKLY
VOLUME 41, NUMBER 34
CASES FROM THE WEEK OF AUGUST 26, 2016
PSYCHIATRIST OWED A DUTY TO A NON-CUSTODIAL PATIENT WHO COMMITTED SUICIDE.
Chirillo v. Granicz, 41 Fla. L. Weekly S345 (Fla. August 25, 2016):
A woman with a history of depression began seeing a psychiatrist in 2005. He prescribed an antidepressant, and switched to another one later. Shortly thereafter, she called the doctor’s office telling the medical assistant that she stopped taking the second antidepressant, because it was having side effects such as not allowing her to sleep well, making her feel under mental strain, causing her to cry easily, and causing gastrointestinal problems. She said she had not felt right for months.
Upon reading the note from the assistant, the doctor changed the medication and told the woman she could pick up the samples at his office. He never scheduled an appointment with her.
The next day, the woman hung herself in her garage. She did not leave a note. Her husband filed an action against the doctor, asserting that he breached the standard of care in treating her.
The trial court granted the defendant’s motion for summary judgment, finding the doctor had no legal duty to prevent the woman’s suicide. The plaintiff appealed, arguing that the trial court improperly characterized the doctor’s duty as one to prevent the woman’s suicide, when in actuality it was to exercise reasonable care in his treatment.
Beginning its analysis with the McCain v. Florida Power Corp. case, “the starting point for any duty analysis under Florida’s negligence law, the supreme court asked whether the defendant’s conduct foreseeably created a broader zone of risk that posed a general threat of harm to others.’
The Second District observed that the doctor had a duty to use ordinary skills, means and methods recognized as necessary, and which are customarily followed in the particular type of case according to the standard of those who are qualified by training and experience to perform similar services. The Second District characterized the duty as a general legal duty. It said it was not a duty to prevent the woman’s suicide and reversed the summary judgment. In an earlier First District case, the trial court had granted summary judgment because it found the suicide of the former patient was not sufficiently foreseeable to impose a duty on the defendant psychotherapist.
The supreme court reasoned that the proper duty of care owed by a physician to a patient who commits suicide is the duty to treat the patient in accordance with the prevailing standard of care. In this case, the plaintiff demonstrated that the doctor knew that patients who stopped taking this kind of antidepressant abruptly, had an increased risk of suicide. The Second District correctly looked to the depositions of the experts filed with the motion for summary judgment to determine the applicable standard of care. Because the evidence showed that stopping the drug was a contributing factor in the decedent’s suicide, the court agreed that the Second District was right to reverse the summary judgment.
ATTORNEY’S FEES MAY BE AWARDED FOR SERVICES IN THE APPELLATE COURT PURSUANT TO SECTION 627.428 WHETHER ON DIRECT APPEAL OR IN CERTIORARI PROCEEDINGS.
Allen v. State Farm, 41 Fla. L. Weekly D1902 (Fla. 2nd DCA August 17, 2016).
ERROR TO ENTER SUMMARY JUDGMENT FOR ELEVATOR MAINTENANCE COMPANY WHEN THERE WAS A FACTUAL ISSUE AS TO HOW LONG A SEAL HAD BEEN LEAKING OIL BEFORE THE PLAINTIFF’S FALL.
McNabb v. Taylor Elevator Corp., 41 Fla. L. Weekly D1903 (Fla. 2nd DCA August 17, 2016):
A man slipped and fell near an elevator at a condominium. At some point prior to the fall, a Victaulic seal in the elevator machinery broke and leaked oil into the machinery and out into the hallway. A technician who had serviced the leak after the fall testified that the seal was leaking at a rate of a drip every two seconds. He testified that the oil on the floor was a quarter of an inch deep.
The elevator company submitted evidence showing that three days prior to the fall, it had inspected the elevator machinery including the seal. The inspectors testified that it was not leaking.
However, in opposition to the motion for summary judgment, the plaintiff submitted the affidavit of a mechanical engineering expert who opined that the seal had been leaking for between four-and-a-half to eighteen days. His opinion was based on the flow rate of the oil leaking from the seal as observed by the technician, drip tests and the depth of the spill as well as the dimensions of the machine room.
The trial court granted the defendant’s motion for summary judgment, finding that the plaintiff’s expert’s affidavit was not based on actual facts.
This finding was error. The expert’s conclusions were based not only on a drip test, but also on the technician’s observation of the drip rate, the depth of the oil, and the dimensions of the machine room. The court also found the trial judge improperly weighed the evidence when it discounted the affidavit, and reasoned that the defendant had a “large amount of evidence indicating that the seal was not leaking at the time of the inspection.” The court reversed the summary judgment.
RULE 9.110(m) PROVIDES FOR INTERLOCUTORY APPEALS FOR THIRD-PARTY CLAIMS, BUT NOT FOR FIRST-PARTY CLAIMS SEEKING UM/UIM BENEFITS.
Geico v. Perez, 41 Fla. L. Weekly D1909 (Fla. 3rd DCA August 17, 2016):
The court ruled that the plaintiff’s interlocutory appeal was premature on the issue of whether the policy provided stacked coverage or not. Rule 9.110(m) provides for appeals of non-final orders that determine the existence or non-existence of insurance coverages in cases in which a claim has been made against an insured and coverage is disputed by the insurer. Thus, the court lacked jurisdiction to review an order on the existence of stacked first-party coverage, which does not fall within those parameters.
STRICT LIABILITY PRINCIPLES DO NOT APPLY TO PERMANENT IMPROVEMENTS TO REAL PROPERTY–A BROKEN SEAT AT A MOVIE THEATER WAS A PERMANENT IMPROVEMENT TO REAL PROPERTY.
Simmons v. Rave Motion Pictures Pensacola, 41 Fla. L. Weekly D1939 (Fla. 1st DCA August 22, 2016):
Plaintiff’s seat broke in a movie theater due to a failure in the welding in the seat bottom, causing him injury. Plaintiff sued the owner and operator of the theater, the seat manufacturer and a broker who sold the seating system to the theater.
In moving for summary judgment, defendants argued that the theater seating system was not a “product” for purposes of products liability, but rather was a permanent improvement to real property, and thus strict liability did not apply. They pointed to the undisputed evidence that the seating system was bolted to the concrete floor of the auditorium.
Plaintiff responded by arguing that the theater seat was a product as opposed to a permanent improvement, because the seat bottom could be easily removed from the movie theater chair’s frame without doing any damage to the floor.
The court found the case to be similar to an opinion in Plaza v. Fisher Development, where an employee of Pottery Barn was injured when he fell on a conveyer system at a Potter Barn store. There, the Third District also found that the conveyer system was a “structural improvement to real property” and not a “product.”
The court further explained that the case was not brought against the manufacturer of the theater seating system. It then observed that the seating system was an integral part of the movie theater’s operation as it was installed as part of the construction of the theater, and the entire seating system was bolted to the floor. There was no evidence that the seat bottom or the seating system could be disassembled and resold.
The seating system was a structural improvement to real property and not a product and therefore, strict product liability did not apply.
TRIAL COURT ERRED IN STRIKING DEFENDANTS’ PLEADINGS AS A SANCTION WITHOUT FINDING DEFENDANTS’ CONDUCT TO BE WILLFUL AND CONTUMACIOUS–ERROR TO AWARD DAMAGES TO PLAINTIFF BASED ON THE PLAINTIFF’S AFFIDAVIT WITHOUT A JURY DETERMINATION WHEN THE PLAINTIFF HAS REQUESTED A JURY TRIAL.
Olawoye v. Arubuola, 41 Fla. L. Weekly D1941 (Fla. 1st DCA August 22, 2016):
When a jury trial has been requested by the plaintiff, the defendant is still entitled to a trial on the issue of damages, even though a default has been entered against the defendant.