The Week in Torts – Cases from the Week of February 14, 2020
To E-File Or Not To E-File, That Is The Question.
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 6
CASES FROM THE WEEK FEBRUARY 14, 2020
ERROR TO GRANT MOTION TO STRIKE MOTION FOR FEES, §57.105 BECAUSE THE SAFE HARBOR NOTICE DID NOT COMPLY WITH RULE JUDICIAL ADMINISTRATION’S 2.516’s E-MAIL SERVICE REQUIREMENTS – THOSE REQUIREMENTS DO NOT APPLY TO THE SERVICE OF A §57.105 SAFE HARBOR NOTICE.
Law Offices of Fred Cohen v. H.E.C. Cleaning, LLC 45 Fla. Weekly D265 (Fla. 4th DCA February 5, 2020):
Sitting en banc, the Fourth District ruled to recede from its decisions in Matte v. Kaplan, 147 So. 3d 686 (Fla. 4th DCA 2014) and Estimable v. Prophete 2197 So. 3d 1001 (Fla. 4th DCA 2017), in light of the Florida Supreme Court’s decision in Wheaton v. Wheaton, 261 So. 3d 1236 (Fla. 2019).
Pursuant to the Wheaton decision, Rule 2.516’s e-mail service requirements do not apply to service of a §57.105 Safe Harbor Notice either.
Rule 2.516(a) specifically requires e-service of “every pleading subsequent to the initial pleading and every other document filed in any Court proceeding…”. In Wheaton, the Florida Supreme Court ruled that proposal for settlements do not need to comply with Rule 2.516’s service provisions.
The provision of Rule 2.516(a) focuses on two groups of documents that must be filed – documents that are required to be served, and documents that are permitted to be served. The proposal for settlement shall be served, but must not be filed with the court. Therefore, by its plain language a proposal for settlement is not a required “document” as contemplated by Rule 2.516. That said, any analysis of a situation must begin with subsection (a) of Rule 2.516; not subsection (b) which addresses how service is made.
The bottom line is “the pre-filing” service of §57.105 safe harbor notices are similar to the “pre-filing” service of §768.79 proposals for settlement, and therefore, the §57.105 safe harbor notice does not need to be served according to the e-mail rules under Rule 2.516 either.
COMMENTS ABOUT THE CREDIBILITY OF A PARTY AND HER FAMILY MEMBERS CREATED A LEGALLY SUFFICIENT REASON FOR REMOVING A JUDGE.
S.S. v. Department of Children and Families, 45 Fla. Weekly D257 (Fla. 3rd DCA February 5, 2020):
The trial judge commented concerning the credibility of the petitioner and her family members, and did so before the direct examination was completed of the petitioner, and before the presentation of any witnesses in the case.
Such comments were sufficient to create a well-founded fear in a reasonably prudent person that he or she would not receive a fair hearing. As such, the court granted the petition for writ of prohibition.
SUMMARY JUDGMENT ENTERED IN ERROR–THE COURT’S FINDING THAT NO DUTY EXISTED OVERLOOKED THE VERY ISSUES OF FACT REGARDING DUTY.
Sturgill v. Lucas, 45 Florida Weekly D275 (Fla. 2nd DCA February 5, 2020):
A truck was towing a 20-foot dual axel commercial trailer that the defendant had loaded with palm fronds. As the driver was operating the truck and towing the trailer carrying the palm fronds, another vehicle stopped abruptly in front of her. The driver attempted to brake but realized that she could not stop in time. Instead, she swerved off the road to avoid hitting the cars in front of her, and struck the plaintiff who had been standing along the edge of the road waiting with her grandchildren for the school bus. There was no dispute that at the time of the accident the trailer was not equipped with brakes, and the police officer who came to the scene found that the lack of brakes was the cause of the accident.
The defendant moved for summary judgment, asserting that he owed no duty of care to the plaintiff because there was no law, statute, or rule that required the trailer to be equipped with brakes. Plaintiff responded that a duty was owed because defendant exercised control over the truck and trailer, chose to use it to haul the palm fronds, and then entrusted the truck, and the palm frond-laden trailer to another person. The trial court’s agreed with defendant.
The court looked at the four different sources of duty, the last one being a factual inquiry into the existence of a duty that has foreseeable conduct creating a broader zone of risk. It observed that irrespective of the lack of applicable statutes or regulations, or an affidavit stating it was dangerous to drive the trailer without brakes, there was nothing in the trial court’s order to suggest that the court had analyzed whether the defendant’s act of loading a trailer with palm fronds where the trailer lacks brakes, created a foreseeable zone of risk that posed a general threat of harm to others.
By improperly restricting its analysis on the issue of duty, and failing to analyze the proper source of it, the trial court erred as a matter of law, necessitating the reversal of the summary of judgment.