The Week in Torts – Cases from the Week of December 13, 2019
No Non-Delegable Duty To Repair
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 50
CASES FROM THE WEEK OF DECEMBER 13, 2019
COURT REFUSES TO FIND A NON-DELEGABLE DUTY ON THE PART OF A MOTOR CARRIER WITH RESPECT TO REPAIR WORK THAT THE OWNER HAS DONE ON THE VEHICLE.
Le v. Colonial Freight Systems, 44 Fla. L Weekly D2884 (Fla. 1st DCA December 04, 2019):
The plaintiff was injured when a tire from one of the defendant Appellee’s trailers detached and collided with the vehicle in which plaintiff was riding as a passenger. Plaintiff alleged that a co-defendant had negligently installed the wheels on the trailer, but that the defendant owner had a non-delegable duty to ensure the repair work was done properly.
The source of the alleged non-delegable duty was both from the common law, and several federal motor carrier safety regulations, one of which was §396.17 requiring periodic inspections of commercial vehicles.
The court engaged in a detailed analysis of the non-delegable duty doctrine, stating that under Florida law, a party who hires an independent contractor may still be liable in certain instances where there is a non-delegable duty involved. Such a non-delegable duty may be imposed by statute, contract or the common law.
The court observed that there are no specific criteria for determining whether or not a duty is non-delegable, and the standard is a rather ambiguous one, stating that such a duty will be imposed when the responsibility is so important to the community, that the employer should not be allowed to transfer it to a third party.
As examples of non-delegable duties that have been upheld, the court cited instances of property owners toward their invitees, nursing home operators, and hospitals for the acts of anesthesiologists (the court distinguished a Third District case from a Fourth District case, citing the Third District’s ruling that the hospital owed no non-delegable duty for the treatment provided to the plaintiff in the emergency room).
All the parties agreed that no court in Florida or elsewhere has recognized a non-delegable duty owed by motor carriers for repairs and maintenance done on their equipment. The court rejected the plaintiff’s argument that motor carriers would have no incentive to perform inspections, maintenance and repairs if a non-delegable duty is not imposed, and that such a duty is necessary to protect the public. Instead, it found that such arguments ignored both the motor carriers’ desire to stay in business, and their obligation under the Federal Regulations to conduct inspections on their equipment, and potential liability for their own negligence if they were to disregard those duties.
IN RE AMENDMENTS TO FLORIDA RULE JUDICIAL ADMINISTRATION 2.240.
44 Fla. L Weekly S281 (Fla. December 12, 2019):
The court amended Rule 2.240(b)(1)(A)(i)(ii) to reflect the change in jurisdictional amounts in the courts. There is now a $30,000 minimum for Circuit Court cases and a $15,000 amount for “non-small claims court” county court cases. The small claims court will now handle claims up to $8,000. These amendments became effective on 1/1/20.
A COURT ERRS IN COMPELLING AN EXPERT TO TESTIFY WHEN HE OR SHE HAS NOT BEEN RETAINED BY A PARTY AND HAS NO SPECIFIC KNOWLEDGE OF THE CASE—COUNTY EMPLOYEES CANNOT TESTIFY AS EXPERTS WITHOUT THE COUNTY’S AUTHORIZATION.
Miami Dade County v. Morejon, 44 Fla. L Weekly D2904 (Fla. 3rd DCA December 04, 2019):
A party in an unrelated lawsuit listed one of the County’s Building Officials as an expert witness. The county petitioned for a writ of certiorari after the trial court compelled the official to testify as an expert without being paid fees, and by allowing the plaintiff to call him as a fact witness instead, when he had no personal knowledge of the case.
The case had arisen when a man was working on a roof and stepped through a skylight and fell to the floor, ultimately dying from his injuries. His father sued the defendant owners of the property, alleging that their failure to obtain certain permits from the county created a dangerous condition that caused the death. The plaintiff listed a Building Official as an expert witness for trial, and the trial court allowed his deposition under the circumstances set forth above.
Although the plaintiff listed the Building Official as an expert, he argued that the witness was actually a fact witness, despite having specialized knowledge that was obtained through his work experience. The plaintiff testified that the Building Official would be testifying to statements of fact about when and how permits for roofing and skylights are applied for and obtained in Miami Dade County.
The court found that this was actually “expert” testimony regarding county procedure, and it was clear that the Building Official had no personal knowledge regarding the facts of this case. As such, the Official is not qualified to testify as a fact witness under §90.701, Fla. Stat.
Because the plaintiff had not retained the Official, and he had not been authorized by County to testify, the County demonstrated a good cause for the issuance of a protective order. Because the trial court departed from the essential requirements of law resulting in a material injury not remediable on appeal, the court granted the petition.