The Week in Torts – Cases from the Week of June 15, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 24

CASES FROM THE WEEK OF JUNE 15, 2018

IN A DECISION WHICH ADMITS THAT “PATENCY VS. LATENCY” UNDER THE SLAVIN DOCTRINE IS GENERALLY A FACT QUESTION, THE COURT THEN RULED AS A MATTER OF LAW THAT SUMMARY JUDGMENT WAS STILL APPROPRIATE FOR DEFENDANTS WHO PLANTED VEGETATION AT AN INTERSECTION WHERE A MOTORCYCLIST WAS KILLED.

Valiente v. R.J. Behar & Co., 43 Fla. L. Weekly D1277 (Fla. 3^rd DCA June 6, 2018):

A man was killed when his motorcycle collided with another vehicle at an intersection located in Hialeah. The plaintiff sued the City of Hialeah as well as many of the landscape contractors who did the landscape work at the intersection.

All of the contractors moved for summary judgment based on the Slavin doctrine, which relieves a contractor from liability for injuries to third parties, when the contractor’s work is completed, the owner of the property accepted the work, and the defect that allegedly caused the injury is patent.

The defendants all contended they were not liable because they had completed the work, the City had accepted the completed roadway project, and any visual obstruction caused by the shrubs would have been patent. The City accepted the completed work in 2006, which was two years prior to the accident, and the roadway construction supervisor for the City admitted that he inspected the landscaping after the shrubs were planted.

The court then presumed that if the city made a reasonable inspection of that work prior to accepting it, and if the shrubs created a visual obstruction the obstruction could have been revealed if the city had reasonably and carefully performed its inspection.

Thus, any visual obstruction that may have existed would have been patent, and if any visual obstruction did exist, the dangerousness of that condition would equally have been patent. For those reasons, the court found that summary judgment was proper.

Judge Emas wrote a very detailed dissent. He admonished that in reviewing summary judgments, it is “apodictic” that the facts are looked at in a light most favorable to the non-movant. He noted that there were issues of fact in dispute about whether 5 ft. shrubs created a dangerous condition and if so, whether the dangerous nature of that condition could have been discovered had the owner exercised reasonable care.

Judge Emas went through the record in detail and found that genuine issues of material fact did remain in dispute regarding whether the 5 ft. shrubs created a condition whose dangerous nature was obvious, if the City had exercised reasonable care. By affirming the trial court, the majority’s decision, according to Judge Emas, failed to properly apply Slavin and was in conflict with the Third District’s earlier decision in Florida Department of Transportation v. Capeletti Bros., 743 So.2d 150 (Fla. 3^rd DCA 1999).

Judge Emas pointed out that in Capeletti, the question of patency was not whether or not the condition was obvious to the owner, but whether the dangerousness of the condition was obvious to the owner in the exercise of reasonable care. If the dangerousness of the condition is not obvious, then the defect is latent and the contractor is not automatically relieved of liability.

ERROR TO GIVE JURY INSTRUCTION ON AGGRAVATION OF PRE-EXISTING CONDITION WHERE BOTH PARTIES’ EXPERTS TESTIFIED THAT ANY INJURIES PLAINTIFF SUSTAINED FROM THE ACCIDENT DID NOT CAUSE AN AGGRAVATION OR AN ACTIVATION OF A PRE-EXISTING CONDITION.

Sanchez v. Martin, 43 Fla. L. Weekly D1251 (Fla. 4^th DCA June 6, 2018):

A woman pulled out in front of a county bus causing the driver to slam on his brakes. The plaintiff bus passenger was catapulted from his seat to the floor, and fell flat on his back. He went from having no back symptoms at all, to chronic back pain.

The plaintiff eventually underwent an MRI which indicated that he had suffered from a diffused idiopathic skeletal hyperostosis (DISH). The MRI also showed plaintiff had a three level disc herniation in his lower back.

Because the plaintiff had a completely clean and asymptomatic prior history, plaintiff and his doctor theorized that the three level herniation causing his pain, was caused by the impact. The defendants argued that this previously undiagnosed “DISH” condition is what was causing the plaintiff’s pain, stiffness and spasms, even though the condition had previously been completely asymptomatic until the accident happened.

The plaintiff’s orthopaedic surgeon testified that the plaintiff’s injuries from the accident had not caused an aggravation or an activation of a pre-existing condition. However, the defendant’s doctors testified that any herniation was caused over the course of several years by the disc problem and not by an acute traumatic event. Both doctors did testify that impacts can aggravate later problems in general.

Based on the defendant’s expert’s testimony, and the defendant’s interjection of the pre-existing condition issue, plaintiff asked for the aggravation instruction which the trial court gave. The defendants objected, arguing that the evidence and arguments did not support the instruction and that it would only serve to confuse and mislead the jury.

The jury reached a substantial verdict for the plaintiff. The Fourth District, however, reversed for a new trial, finding that the evidence had not supported the aggravation instruction, and that it was error for the trial court to give the instruction, and since it could not be said there was no reasonable possibility that the instruction affected the verdict, the error could not have been harmless.

COURT REVERSED TRIAL COURT’S DECISION TO TRANSFER VENUE, WHERE THE AFFIDAVIT IN SUPPORT OF THE MOTION TO TRANSFER WAS LEGALLY INSUFFICIENT TO ESTABLISH SUBSTANTIAL INCONVENIENCE TO THE PARTIES OR WITNESSES, AND THE TRIAL COURT’S ORDER CONTAINED NO FINDINGS INDICATING THAT THE MOTION HAD TO BE GRANTED IN THE “INTEREST OF JUSTICE.”

Gonzalez v. Hilton Palm Beach Airport Hotel, 43 Fla. L. Weekly D1270 (Fla. 3^rd DCA June 6, 2018):

The court began by discussing the burden that a defendant must meet under section 47.122, which is substantial inconvenience to the party or the witnesses. The court noted that when venue is proper in more than one county, the choice rests with the plaintiff, and should not be disturbed “without a showing of substantial inconvenience or the likelihood of injustice.”

The court also relied on a decision which stated that although a grant or refusal of application for change of venue is generally within the sound discretion of the trial court, the discretion is not unbridled and “must be predicated upon a proper showing of inconvenience or injustice.”

While the case does not set forth any facts, the court says that upon its review of the record, the affidavit submitted by the defendants in support of their motion was legally insufficient to meet their burden of “establishing substantial inconvenience to the parties or witnesses.”

Then the court stated that given the record was devoid of any indication that the trial court granted the motion “in the interest of justice.” As such, it had to reverse the order and remand for the trial court to consider whether to transfer venue on any other basis asserted in the motion, including whether the interest of justice required the action be transferred.