The Week in Torts – Cases from the Week of June 12, 2020
“Was The Conduct That Bizarre”
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 23
CASES FROM THE WEEK JUNE 12, 2020
TRIAL COURT SHOULD HAVE DIRECTED A VERDICT FOR THE PRODUCT MANUFACTURER DEFENDANT, WHERE CRIMINAL CONDUCT BY A PERSON WHO WAS VOLUNTARILY IMPAIRED AND/OR INTENTIONALLY MISUSED THE PRODUCT, WAS THE SOLE, SUPERSEDING AND PROXIMATE CAUSE OF THE ACCIDENT WHICH RESULTED IN THE DEATH.
DZE Corp. v. Vickers, 45 Fla. L Weekly D1379 (Fla. 1st DCA June 8, 2020):
A corporation that manufactures products containing a highly dangerous, synthetic marijuana marketed as “potpourri,” had labeled the product “not for human consumption.” There was no dispute that the product was dangerous if consumed, and no dispute that the defendant driver had voluntarily consumed it, became impaired, and rammed his vehicle into another vehicle, killing two people (he ended up in prison for his criminal conduct).
The plaintiffs sued the corporation for wrongful death, asserting negligence and strict liability based on a failure to warn. The corporation moved for directed verdict at trial, arguing that no proximate cause could be proven because the driver’s intoxicated driving was the sole proximate cause of the deaths. The jury returned a substantial verdict against the corporation, finding it 65% at fault and finding the driver 35% at fault.
The court relied onDepartment of Transp. V. Anglin, where the Florida Supreme Court had upheld a summary judgment for the DOT on the issue of proximate cause in a road design case, because an intervening driver had slammed into the plaintiff’s stalled car. The supreme court held that even when an actor’s conduct creates a dangerous situation, the law will not allow a jury to find proximate cause where an unforeseeable, intervening act is responsible for the injuries.
The court observed that it was not reasonably foreseeable that the driver in that case would have acted in such a bizarre and reckless manner, and found that the defendant’s negligent behavior had not set in motion the chain of events resulting in the injuries, simply providing the occasion for the driver’s gross negligence.
The court found that any conclusion that the company’s failure to warn was the proximate legal cause of the devastating crash, necessarily required speculation that the company could foresee that the driver would (1) disregard the warning on the product and consume the potpourri; (2) become voluntarily intoxicated; and (3) drive recklessly in violation of the state’s criminal laws and cause the accident. [Author’s note: Is that really so hard to foresee!?] As such, such a conclusion could not stand.
Additionally, Florida law does not permit a jury to consider proximate cause where a person responsible for the injury is voluntarily impaired, or intentionally misuses a product.
Here, the company conceded that it did not appeal any finding that it negligently manufactured its product or provided inadequate warnings. Instead, it argued that there could be no liability to a third party that was not directly impacted by the company’s product, where another party voluntarily consumed the product, became intoxicated, and made an illegal decision to drive. The court held that as a matter of law, the driver’s conduct was the sole superseding proximate cause of the accident, and reversed and remanded for entry of the directed verdict in favor of the defendant.
TRIAL COURT UPHELD IN DENYING MOTION TO DISMISS ACTION AGAINST FOREIGN CORPORATION FOR LACK OF JURISDICTION BASED ON FORUM NON CONVENIENS.
Damicet Corp v. Sidauy, 45 Fla. L Weekly D1311 (Fla. 3rd DCA June 3, 2020):
A Panamanian corporation owned real estate and maintained brokerage and bank accounts in Aventura and Miami. The company was a closely held family entity, used to accumulate assets and transact business in Florida.
The trial court found that the company’s presence and activities satisfied the twin prongs required to support personal jurisdiction (facts to bring the action within the ambit of the long-arm statute and the satisfaction of due process by showing sufficient minimum contacts).
The court also considered affidavits and proffers, and made a detailed analysis based on the four factors of the Kinney test before denying the motion to dismiss based on forum non conveniens. There was no abuse of discretion in these rulings.
COURT PROPERLY DISMISSED PLAINTIFF’S CASE BASED ON COUNSEL’S MISCONDUCT, BUT WRONGFULLY AWARDED THE FULL AMOUNT OF DAMAGES AT ISSUE AS A SANCTION.
The Strems Law Firm v. Avatar Property & Cas. Co., 45 Fla. L Weekly D1351 (Fla. 4th DCA June 3, 2020):
Plaintiff’s law firm sued the insurance company seeking $22,877.02 in damages. A year and a half later, the insurer moved to dismiss the case with prejudice, as a sanction for plaintiffs counsel’s bad faith conduct during the proceeding. After hearing argument from counsel, the trial court made findings pursuant to all of the Kozel factors, and granted the motion to dismiss.
When the law firm requested that the trial court consider a lesser sanction, the trial court then ruled instead to impose an additional sanction by requiring the law firm to pay their client $22,877.02: the exact amount the client sought as damages in their lawsuit.
The court upheld the original dismissal. However, it found that the imposition of the monetary sanctions in the amount assessed was not only a violation of due process, it was also improper because it was not sought by the clients, and was imposed without notice. Further, the amount imposed improperly prejudged the merits of the underlying lawsuit against the insurer, and presupposed that the client would have prevailed, when in fact there was never any adjudication on the merits (a finding that may have been appropriate in a legal malpractice case). The court upheld the dismissal, but reversed the actual sanction as improper.