The Week in Torts – Cases from the Week of February 28, 2020
Supreme Court Solidifies Product Liability Jury Instructions
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 8
CASES FROM THE WEEK FEBRUARY 28, 2020
THE FLORIDA SUPREME COURT AUTHORIZES NEW STANDARD JURY INSTRUCTIONS ON PRODUCT LIABILITY ISSUES.
In Re: Standard Jury Instructions in Civil cases, 45 Fla. L Weekly S78 (Fla. February 27, 2020):
The court accepted a series of amendments regarding the Product Liability jury instructions.
As to instruction 403.7b, the court deleted the “[and]” between the consumer expectation and risks/benefit tests, to reflect that a plaintiff may choose to prove a product’s defectiveness through the risk/benefit test, but is not required to do pursuant to Aubin. That same amendment was also made to instruction 403.15e.
Instruction 403.7b was further amended to track the statutory definition of §768.1257 regarding state-of–the-art knowledge available at the time of a product’s manufacture.
The court modified instructions 403.17 and 403.19 to make them consistent with instructions on legal cause and comparative fault. The current language describes the apportionment of comparative fault as requiring the jury to determine what percentage of the “total negligence” of the parties was “caused by” each of them. However, such an instruction is confusing because it is unclear how a person or entity can “cause” negligence, fault or responsibility.
The new instruction is similar to those in 401.21, 401.23, 402.13, 402.15, 409.12 and 412.8 [as published in the opinion at 2018 WL 2168867 (Fla. February 1, 2018)], which now advises that the jury still should apportion negligence to those defendants whose negligence caused injury.
There is also a new instruction, 403.18c, on the learned intermediary defense. It applies to failure to warn claims for products supplied through an intermediary.
The instructions became effective immediately.
SUMMARY JUDGMENT PROPER IN A SLIP AND FALL CASE WHEN THERE ARE NOT ENOUGH FACTS TO SUGGEST THAT THE LIQUID WAS ON THE GROUND LONG ENOUGH TO IMPUTE CONSTRUCTIVE KNOWLEDGE TO THE DEFENDANT.
Oliver v. Winn-Dixie Stores, 45 Fla. L Weekly D388 (Fla. 4th DCA February 19, 2020):
Plaintiff alleged she fell on a liquid substance at a Winn-Dixie. She saw nothing on the floor before falling, did not know how the substance got there, and did not know how long it had been there. However, when she stood up, she noticed a clear dirty liquid on the floor that had some sort of red speck or purple speck, as if were smeared on the ground. She photographed the liquid later which was determined to be a squished grape.
There were no cart tracks or footprints in the liquid, but there was a slip mark. The plaintiff’s daughter had been in a different area of the store when her mother fell, and could not remember if there was liquid on the floor. She did not notice it until the plaintiff pointed it out.
A witness testified that he saw a very small substance that may have been the cause of the fall, but did not see any footprints or cart tracks running through the liquid. He too was standing in the same area before the fall, but did not remember seeing that substance.
An employee filed an affidavit stating that he had passed the area four times between 6:54 p.m. and 7:10 p.m. placing items on the shelves and looking out for hazardous conditions. The plaintiff fell at 7:23 p.m.
The manager filed an affidavit stating that he observed a squishy grape that appeared to have been stepped on and a small amount of clear liquid in the area with one slip mark leading to the grape. The manager also stated there were no cart tracks or footprints, and didn’t know how long the grape was there.
The current premises liability statute governing the case, §768.0755, specifically places the burden on the plaintiff to prove that the business establishment has constructive knowledge of a hazard. While a plaintiff does not have the burden to prove that the defendant has constructive knowledge of the substance, if the defendant satisfies its summary judgment burden of showing that there were no disputed factual issues about its constructive knowledge, the burden does shift back to the plaintiff to come forward with counter evidence to reveal a genuine issue.
In this case, there were no facts to suggest that the grape and the surrounding liquid were on the ground long enough to impute constructive knowledge to Winn-Dixie, and without such facts, Winn-Dixie was entitled to summary judgment.
NEGLIGENT SECURITY VERDICT AFFIRMED—DIRECTED VERDICT ON DEFENDANTS FABRE DEFENSE ALSO AFFIRMED BECAUSE WITHOUT A SPECIAL RELATIONSHIP PEOPLE GENERALLY OWE NO DUTY TO PROTECT THIRD PARTIES FROM HARM CAUSED BY ANOTHER.
The Waves of Hialeah v. Machado, 45 Fla. L Weekly D391 (Fla. 3rd DCA February 19, 2020):
Plaintiffs, the parents and co-personal representatives of the estate of the decedent, sued the motel where their daughter was killed. On that day, their daughter and a male companion had spent the day drinking. When they arrived at the defendant motel at 11:00 p.m., Plaintiff was intoxicated and realized she had lost her phone.
Later, the companion received a message that the decedent’s phone had been found at a restaurant, and he left to retrieve it. He and the decedent had an argument as he was leaving, which spilled outside of their room. They both got locked out.
Before leaving the motel, the companion asked the front desk attendant to open the door to their room, but when the hotel security went there, no one was there. The companion never returned to the motel, going to a strip club instead.
In the meantime, while the decedent waited for her friend to return, an intoxicated man arrived around 4:30 a.m. and asked the receptionist if the motel had “any women”. Shortly thereafter, the decedent appeared at the front desk requesting that the room be open but the receptionist refused pursuant to the motel security policy. At the same time, the intoxicated man was harassing a housekeeper in the room two doors down. Motel security was warned by the housekeeper about the intoxicated man, but security did not remove him from the premises. The intoxicated man and the decedent were then seen walking around the motel together looking friendly.
The decedent again approached the receptionist a short while later asking for a key to the room and thereafter, was seen walking towards an area of the motel consistent with the direction of the intoxicated man’s home. That was the last time the decedent was seen alive. By his own admission, the intoxicated man murdered that decedent.
Prior to trial, the plaintiff sought to preclude the defendant from referencing the fact that trace amounts of cocaine and benzodiazepine were found in the decedent’s system, arguing that that fact was substantially outweighed by its prejudicial effect, because the defendants’ experts could not testify as to her level of intoxication.
The trial court properly excluded that evidence, (it found that it would be character assassination), and admonished that relevant evidence tends to prove or disapprove the material fact, which this did not. Finding the evidence not to be relevant and if so to be more prejudicial than probative, the trial court excluded it, and the appellate court affirmed. The judge did allow the defendant’s drug and alcohol defense brought pursuant to §768.36 to go to the jury.
The plaintiffs also moved for directed verdict seeking to exclude the decedent’s companion as a Fabre defendant, contending that he owed no duty to her. The defendant argued that the companion undertook a duty when he agreed to retrieve her phone, because he knew that she was impaired, and by seeking to have the door to their room opened for her.
The court rejected the companion was a Fabre defendant. The duty element of negligence focuses on whether the defendant’s conduct foreseeably creates a broader ‘zone of risk’ that poses a general threat of harm to others. A person’s duty generally does not extend to prevent a third party from causing physical harm to another unless there is a special relationship, or the defendant is an actual or constructive control of the (a) instrumentality of the harm, (b) the premises upon which the tort is committed, (c) or the person who committed the tort.
Here, the companion had no actual or constructive control over the instrumentality, the premises, or the tortfeasor. He was not present when the murder occurred and was unable to prevent the injury. As such, the trial court correctly granted the motion for directed verdict, keeping him off the verdict form.
The jury awarded the plaintiffs $12,000,000 solely against the motel. The court affirmed the verdict, and refused to grant a new trial or the motion for remittitur.