The Week in Torts – Cases from the Week of January 29, 2021
That Ain’t Control…
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 4
CASES FROM THE WEEK JANUARY 29, 2021
SUMMARY JUDGMENT FOR FRANCHISOR PROPER BECAUSE IT HAD NO LEGAL DUTY TO THE PLAINTIFF, AND COULD NOT BE HELD LIABLE FOR ACTS OF THE FRANCHISEE’S OWNER WHEN IT WAS NOT IN ACTUAL OR APPARENT CONTROL OF THE INDEPENDENTLY OWNED AND OPERATED FRANCHISE
Ferrer v. Jewelry Repair Enterprises, Inc. 46 Fla. L. Weekly D209 (Fla. 4th DCA January 20, 2021):
The plaintiff was shot by the franchisee/owner of the franchise location where he worked, and sued the franchisor. The franchise agreement itself actually negated the argument that the franchisor had any substantial control over the franchisee or its owner.
Instead, while the agreement required uniform standardization of products and services, and regular and ongoing support from the franchisor, it did not provide the franchisor with any control over day-to-day operations that did not involve the standardization of products and services.
Pursuant to the agreement, the franchisee operated as its own independently owned entity with full authority to hire and fire employees. Merely using a uniform name and logo, and oversight and standardization, did not give rise to genuine issues of material fact that could allow the trier of fact to conclude that the franchisor had any actual or apparent control over the franchisee’s management.
Accordingly, the franchisor had no legal duty to the plaintiff and could not be held liable for acts of the franchisee’s owner, because the franchisor was not in actual or apparent control of the independently owned and operated franchise.
Judge Warner dissented. She wrote that because the complaint alleged a degree of control and influence by the franchisor in the day-to-day operations of the franchisee, and because discovery on the issues was still outstanding, summary judgment should have been reversed for further proceedings. Judge Warner found that based on the unrefuted allegations in the complaint she would have held that the allegations of the franchisor’s actions were legally sufficient to show the exercise of control over the franchisee, such that a motion for summary judgment should not have been granted at that stage of the proceedings.
SUPREME COURT MAKES MINOR CHANGES TO THE STANDARD JURY INSTRUCTIONS AND OTHER RULES
In Re: Amendments to Florida Rules of Judicial Administration, The Florida Rules of Civil Procedure, and The Florida Rules of Criminal Procedure – Standard Jury Instructions, 46 Fla. L. Weekly S304 (Fla. January 28, 2021):
In this opinion accompanying the amendments, the court reiterated that the jury instructions themselves are not the law. The court also explained that from now on, the standard jury instructions will be found on the Florida Bar website instead of the Supreme Court website. The new rules are reflected in Florida Rules of Civil Procedure 1.470 and Florida Rules of Judicial Administration Rule 2.580.
THE COURT REVERSED FINAL JUDGMENT GRANTING PLAINTIFF’S MOTION FOR DEFAULT, WHERE RECORDS SUPPORTED DEFENDANT’S ARGUMENT THAT HE WAS DENIED THE OPPORTUNITY TO PROCURE COUNSEL AND FILE AN ANSWER AND AFFIRMATIVE DEFENSES WHILE HE WAS INCARCERATED
Key v. Gallagher, 46 Fla. L. Weekly D219 (Fla. 2nd DCA January 22, 2021):
Vacating the final judgment entered for the plaintiff, the appellate court ordered on remand that the trial court must allow the defendant a reasonable period of time to procure counsel, a reasonable period of time to file an amended answer and affirmative defenses, to request a jury trial, and to arrange transportation or provide an alternative method for defendant to participate in the proceedings. The court arrived at this ruling in light of the public policy favoring the liberal amendment of pleadings so that cases may be decided on their merits and in balancing the defendant’s rights.
ANOTHER COURT CERTIFIES THE QUESTION AS TO WHETHER WORLEY SHOULD ALSO APPLY TO PRECLUDE A DEFENSE LAW FIRM NOT A PARTY TO THE LITIGATION, FROM HAVING TO DISCLOSE ITS FINANACIAL RELATIONSHIP WITH EXPERTS THAT PERFORM COMPULSORY MEDICAL EXAMINATIONS FOR IT UNDER RULE 1.360
Kent v. Diaz-Navedo, 46 Fla. L. Weekly D225 (Fla. 5th DCA January 22, 2021):
The defendants in this automobile negligence suit sought certiorari relief from a discovery order entered by the trial court compelling their attorneys and law firm to disclose the amount of money that the firm has paid to its retained trial experts in the case over the last three (3) years.
While the court again denied the petition based on prior precedent, it also again certified the question to the Florida Supreme Court as one of great public importance, namely whether the decision in Worley should apply to defense firms as it does to plaintiff firms.