The Week in Torts – Cases from the Week of January 15, 2021

To Amend For Punies You Need A Reasonable Basis

FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 2
CASES FROM THE WEEK JANUARY 15, 2021

SUCCESSOR JUDGE PROPERLY RECONSIDERED PREDECESSOR JUDGE’S DENIAL OF MOTION TO AMEND COMPLAINT – PUNITIVE DAMAGES

Deaterly v. Jacobson, 46 Fla. L Weekly D89 (Fla. January 6, 2021):

Plaintiff sued the defendant for intentional infliction of emotional distress, negligence, assault, and trespass to chattels, arising from an incident where the defendant shot and killed the plaintiff’s dog. The defendant asserted self-defense.

The trial court initially refused to grant plaintiff’s motion to amend, finding that plaintiff had not established a reasonable basis for recovery under the “clear and convincing” evidence standard. The plaintiff countered that section 768.72(1) simply requires a plaintiff to make “a reasonable showing” by evidence that there is a “reasonable basis for recovery” of such damages, in order to amend.

The plaintiff again brought up the issue through a motion for reconsideration, renewing his motion for leave to amend in front of a new judge who rotated into the division. The successor judge reviewed the same evidence along with additional deposition transcripts, but disagreed with the defendant that plaintiff needed to make a showing of “clear and convincing” evidence before being allowed to amend.

The trial court first concluded that it was appropriate to review and modify the interlocutory ruling of its predecessor, and then granted the plaintiff’s motion.

The court affirmed the procedure and the ruling. The successor judge has the authority to review, vacate, and/or modify a predecessor’s interlocutory rulings, as long as there was no entry of final judgment.

The successor judge also applied the proper standard simply requiring “a reasonable showing” to establish a reasonable basis for recovering punitive damages. As the court admonished, the defendant had conflated the plaintiff’s burden of proof at the pleading stage with the burden of proof at trial, noting that the legislature has written section 768.72(1) and (2) such that each subsection applies to distinct stages of the litigation process.

SUMMARY JUDGMENT PROPERLY GRANTED FOR DEFENDANT SECURITY COMPANY, WHERE ITS CONTRACT WITH A HOSPITAL LIMITED ITS OBLIGATION TO PROTECTING THE HOSPITAL AND ITS EMPLOYEES ONLY, EXPRESSLY DISAVOWING A DUTY TO PROTECT OTHERS.

Glickman v. Kindred Hospitals East, LLC, 46 Fla. L. Weekly D97 (Fla. 3d DCA, January 6, 2021):

In this slightly bizarre case, an 87-year-old was sitting in a hospital lobby with a friend. The two shared a close mutual friend who was receiving long-term care in that hospital. As the two sat in the lobby, the man pulled out a revolver, and shot the woman multiple times without provocation or reason. She survived.

The plaintiffs sued the hospital as well as several other defendants including the security company. The security company moved for summary judgment on the basis that it owed no duty to the plaintiffs because its contract with the hospital limited it to protecting the hospital and its employees, and expressly disavowed a duty to protect others. It also asserted that nothing in its conduct foreseeably created a broader zone of risk encompassing such a crime on the premises.

Even though the security company’s actions in providing security reflected a general undertaking to protect visitors, the court ruled there was no duty to provide security to those outside its contractual limits. Additionally, even though the written contract had expired, and was never renewed in writing, the hospital had continued to pay. The court found these facts could not create a genuine issue of material fact either, because there was not enough for a reasonable jury to find that the security company expressly or by implication agreed by contract or by a voluntarily undertaking, to expand the scope of services and liability beyond those stated in the written contract.

THIRD PARTY BENEFICIARY OF RETAINER AGREEMENT NOT BOUND BY ARBITRATION CLAUSE IN HIS LEGAL MALPRACTICE CASE

Jacocks v. Capital Commercial Real Estate, 46 Fla. L. Weekly D109 (Fla. 4th DCA January 6, 2021):

Plaintiff was a real estate agent working for a broker as a sales manager. He and the broker brought a lawsuit against a seller who circumvented them out of a real estate deal. However, it was the broker who retained an attorney to sue the seller to recover the commission. While the plaintiff did not sign the retainer agreement, he did pay half of the attorney’s retainer.

While the case was pending, the broker terminated its relationship with the plaintiff and the attorney stopped communicating with him. When the case settled, the plaintiff did not receive any of the proceeds and was not advised of the terms of the settlement.

The plaintiff later sued the broker, law firm and attorney. The attorney defendant then asserted that plaintiff was bound by the arbitration agreement. The plaintiff alleged that while he was an intended third party beneficiary of the retainer agreement, he never actually signed the agreement.

Generally, a person cannot be bound by an arbitration clause in a contract he or she does not sign, even if the person is a third party beneficiary of the contract. The exception to that rule occurs, however, when a third party beneficiary seeks to enforce a contract between other parties. The exception does not apply, however, when a third party beneficiary brings a claim other than one to enforce the contract. In this case, the plaintiff sued the defendants for negligence; not to enforce the retainer agreement. Thus, because he did not sign the retainer agreement and was not suing to enforce it, the plaintiff could not be bound by the arbitration clause.

IN A 2-1 DECISION, THE FOURTH DISTRICT UPHELD A RELEASE TO BAR A CLAIM BY AN INJURED HIGH SCHOOL ATHLETE, BASED ON A RELEASE HE AND HIS FATHER SIGNED IN CONJUNCTION WITH HIM PLAYING

Elalouf v. School Board of Broward County, 46 Fla. L. Weekly D114 (Fla. 4th DCA January 6, 2021):

A high school athlete who played varsity soccer was injured when he was thrown into an unpadded cement barrier near the soccer field during a game. Before he began the season, the athlete and his father had both signed a comprehensive release against the school board, which the trial court held supported summary judgment in the school board’s favor.

The court discussed two issues: The first was that the plaintiffs failed to properly preserve his claims for appeal because they relied on one line of argument in the trial court, and a different line of argument in the appellate court (the dissent found the issue was preserved). In this case, the plaintiff failed to argue in the trial court, any public policy reasons for not treating the release differently from a pre-injury release for a commercial business.

The court also found the exculpatory clause insulated the school district from suit as a matter of law. This was not a case where the terms were hidden in a maze of fine print, or one where the language of the release was not clear and unambiguous. Instead, the release made clear that the school board would not be responsible for the child’s safety.

Finally, the majority found that “pre-injury releases” executed as part of a commercial activity (as discussed in Kirton v. Fields, 997 So. 2nd 349 (Fla. 2008)) were inapposite. It said that the Kirton court specifically did not extend its holding (that such releases were unenforceable) when signed by parents on behalf of minor children in cases involving “non-commercial” activity.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO ORDER THE PRODUCTION OF DEFENDANT’S MEDICAL RECORDS WITHOUT AN IN- CAMERA INSPECTION – WHILE SOME SUBSET OF THE RECORDS MAY HAVE BEEN RELEVANT TO DEFENDANT’S MENTAL CAPACITY, REQUIRING PRODUCTION OF “ANY AND ALL” RECORDS CAST TOO WIDE A NET

Tanner v. Hart, 46 Fla. L. Weekly D138 (Fla. 2nd DCA January 8, 2021):

The plaintiff sued the defendant in connection with a 2014 automobile accident that occurred when defendant was 79 years old. The plaintiff sought to depose the defendant who was then in hospice care, and suffered memory loss in connection with her dementia.

After learning of the diagnosis, the plaintiff sought production of “any and all” (medical records listing the various kinds). The defendant objected based on violation of the right to privacy.

The trial court initially sustained the objections, but then granted the plaintiff’s request for reconsideration and directed production of the records for an almost ten- year time period without ordering an in-camera inspection.

It is well settled that patient’s medical records enjoy a confidential status by virtue of the right to privacy found in Article I, Section 23 of the Florida Constitution. Thus, an order compelling production of a party’s medical records satisfies the jurisdictional element of an irreparable harm.

While some of the defendant’s medical records may have been relevant to her mental capacity at the time of the accident and her current capacity to be deposed, some subset of the records might not have been, and the request of “any and all” cast too wide a net.

The trial court departed from the essential requirements of law by compelling disclosure of nearly ten years’ worth of categorically inclusive medical information without first determining its relevance, and balancing the need for such information against the defendant’s constitutionally protected privacy interests.

ERROR TO ENTER FINAL SUMMARY JUDGMENT BASED ON AN OPEN AND OBVIOUS HAZARD

Collias v. Gateway Academy, 46 Fla. L. Weekly D140 (Fla.1^st DCA January 11, 2021):

A seven-year-old child got distracted while running a makeshift course in her private school’s indoor auditorium, and ran into a pedestal table with a glass edge causing the child to suffer long-term injuries.

The trial judge entered final summary judgment on the basis that the table was an “open and obvious” risk of which the plaintiff was aware, and that her injury was her own fault, with no negligence on the school’s part.

The court reminded us that courts should hesitate to absolve property owners of liability on an “open and obvious” theory, unless the crystalized and undisputed facts establish as a matter of law that the plaintiff knowingly undertook an open and obvious risk for which no warning was necessary.

In this case, factual issues existed as to whether the table was so open and obvious as to make it the type of risk that a seven-year-old child engaging in an indoor running exercise would foreseeably perceive and avoid, as a matter of law.

The court distinguished a case where an adult customer tripped over a pallet as he exited a Winn Dixie store, a pallet he admitted he saw and walked around before. A seven-year­old simply cannot be charged with the same degree of knowledge.

Also, here, these second graders were required to run around the pedestal table despite its potential risk of harm, and it was foreseeable that a second grader might become distracted while running indoors in a confined area with 20 other classmates.

The court found reversal was warranted, and that the jury should determine whether the school acted negligently.