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The Week in Torts – Cases from the Week of June 7, 2019
Defer To Trial Judge’s Sense Of Touch
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 23
CASES FROM THE WEEK OF June 7, 2019
COURT REVERSES DENIAL OF ADDITUR WHERE JURY FOUND PERMANENT INJURY AND AWARDED PAST MEDICAL EXPENSES BUT NOTHING FOR PAST PAIN AND SUFFERING – HOWEVER, IT AFFIRMS DENIAL FOR FUTURE MEDICALS.
Arias v. Porter, 44 Fla. L. Weekly D1373 (Fla. 2nd DCA May 29, 2019):
In this case of admitted negligence, a jury found the plaintiff had suffered a permanent injury and awarded him past and future medical expenses “in an amount slightly less than what plaintiff sought but far greater than what defendant argued for,” but nothing for past or future pain and suffering damages. The plaintiff appealed from a judgment denying his motion for additur on the grounds that the jury’s zero verdict on both past and future non-economic damages was inadequate.
The Second District went through a detailed analysis of its own precedent on this issue, coupled with the Supreme Court’s decision in Allstate v. Manasse, and explained that when a jury finds permanent injury, and awards damages for past medical expenses, the plaintiff is entitled to at least a nominal award of past non-economic damages.
Conversely, because future damages are far more uncertain, the key to the inquiry regarding an additur for those damages is whether the evidence of the future non-economic damages was “substantially undisputed.”
In this case, the jury had awarded $50,000.00 to the plaintiff in past medical expenses and $200,000.00 in future medical expenses, (the plaintiff presented evidence of $2,500,000.00 in future medical expenses). The court concluded that because the jury awarded only 8% of the requested amount of future medical expenses, the amount awarded was actually not that substantial. That factor, coupled with the disputed evidence of future damages stemming from this accident, made the court conclude that while the additur needed to be granted for past non-economic damages, the trial court was within its discretion not to grant it with respect to the future damages.
My favorite line from this opinion was the court’s observation regarding the kind of wide deference it gives to a trial jury in making such a ruling: “The assessment obviously involves a sense of touch that can be delivered only by the trial judge that heard and saw the evidence.”
NO ABUSE OF DISCRETION IN DENYING DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT.
Benefit Administrative Systems v. West Kendall Baptist Hospital, 44 Fla. L. Weekly D1387 (Fla. 3rd DCA May 29, 2019):
A hospital sued the defendant to recover underpaid claims. After serving the summons and complaint, and in the absence of any answer from the defendant, the hospital successfully sought a default final judgment.
Several months later, the hospital sought to domesticate the default judgment in an Illinois court and to freeze the defendant’s assets. The defendant contended that that was the first time it became aware of the hospital’s lawsuit and the default judgment and finally sought to vacate the default judgment — five months after it was entered.
Following an evidentiary hearing, the trial court denied the motion to vacate. It rejected the evidence the defendant offered to support its claim of excusable neglect. It further found that the defendant had failed to act with due diligence in waiting for five months to seek relief.
The court reminded us that clerical error and a failure to follow an established policy may constitute excusable neglect. However, the only position advanced by the defendant was that it never received the summons and complaint. Because the evidence was contradicted by the hospital plaintiff’s evidence and the presumption of valid service arising from the return of service, the court weighed the evidence and determined that the defendant failed to show it was never served. There was also an alternative argument that the summons and complaint may have been “misfiled,” but that was a weak argument in light of its primary argument that it had never been served, (so it was hard for it to produce evidence to show that it was misfiled).
Similarly, the court concluded that because the hospital had introduced evidence that the defendant had been served with the default judgment, waiting five months to serve the motion to vacate default did not demonstrate the requisite due diligence needed to vacate the default.
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF’S FOURTH MOTION TO AMEND COMPLAINT TO ADD A NEW DEFENDANT, WHERE THE PROPOSED AMENDMENT WOULD HAVE BEEN THE FOURTH TIME PLAINTIFF AMENDED TO BRING IN NEW PARTIES, AND THE REQUEST TO AMEND CAME AFTER THE CASE WAS SET FOR TRIAL, AND THE COURT HAD SPECIFICALLY SET A DEADLINE FOR BRINGING IN NEW PARTIES.
Toscano Condominium Association v. DDA Engineers, 44 Fla. L. Weekly D1389 (Fla. 3rd DCA May 29, 2019):
The plaintiff had amended its complaint twice to add in new defendants. In June of 2017, the court entered the Case Management order setting various deadlines for pretrial events, and scheduling the case for trial to begin in July of 2018. The order imposed an August 1, 2017 deadline for adding parties. Despite that deadline, the plaintiff moved on November 30, 2017, to file a fourth amended complaint to add claims against a new party. The trial court denied the amendment.
As a preliminary matter, the court made clear that an order denying leave to amend is a non-final non-appealable order, which must be challenged after a final judgment. That said, recognizing that the general rule governing motions to amend is that they should be freely granted, the court stated that that rule applies unless the privilege is abused, the opposing party would be prejudiced, or the amendment would be futile.
Notably, the court wrote that in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be reached.
Also, the proposed defendant had been involved in the case relatively early with an indemnity claim, so the plaintiff was aware of this defendant. The court also said that litigants must bear responsibility in diligently pursuing their cases to resolution in a timely manner.
ERROR TO DISMISS COMPLAINT WHICH SUFFICIENTLY STATED A CAUSE OF ACTION FOR NEGLIGENCE – COMPLAINT STATED PLAINTIFF’S STATUS ON THE PROPERTY, DATE OF INCIDENT, LOCATION ON PREMISES, CAUSE OF FALL AND DEFENDANT’S ALLEGED FAILURE TO MAINTAIN AND INSPECT AFTER THE FALL.
Maldonado v. Orange County Public Library System, 44 Fla. L. Weekly D1403 (Fla. 5th DCA May 31, 2019):
This case reminds us that Florida is a fact-pleading jurisdiction and not a notice-pleading jurisdiction. That means a complaint must contain a short and plain statement of the ultimate facts showing the pleader is entitled to relief. To state a cause of action for negligence, a complaint must allege a duty, a defendant’s breach of that duty, injury to the plaintiff arising from the defendant’s breach, and damage caused by the injury.
A business owner owes two duties to a business invitee: (1) reasonable care to keep its premises reasonably safe and (2) to warn of latent or concealed perils that were known or should have been known to the owner and which the invitee could not discover through the exercise of due care.
Because this amended complaint defined the plaintiff’s status on the property, the date of the accident, the location on the premises, the cause of the fall, and the defendant’s alleged failure to maintain and inspect the premises, the allegations were sufficient to state a case of action for negligence.
TRIAL COURT ERRED IN COMPELLING DEFENDANT NURSING HOME TO PRODUCE DOCUMENTS CLAIMED TO BE PROTECTED BY STATUTORY PRIVILEGES, WITHOUT SPECIFICALLY RULING ON DEFENDANTS OBJECTIONS AND WITHOUT CONDUCTING AN IN-CAMERA INSPECTION BEFORE ISSUING ORDERS THAT WOULD FORCE “CAT OUT OF THE BAG” DISCOVERY OF PRIVILEGED DOCUMENTS.
East Bay NC, LLC v. DJADJICH, 44 Fla. L. Weekly D1409 (Fla. 2nd DCA May 31, 2019):
When a party raises objections regarding the production of documents on the basis of some type of privilege, a trial court must explain why it is ordering the production, and in most instances, must conduct an in-camera inspection to evaluate the privilege before compelling production. The failure to do so, in this case, was a departure for the essential requirements of law.
When parties dispute that documents are protected, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable.