The Week in Torts – Cases from the Week of May 8, 2020
“You Knew…Or At Least It’s A Question”
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 18
CASES FROM THE WEEK May 8, 2020
EVIDENCE OF DIRTY WATER WITH MUDDY FOOTPRINTS ON THE FLOOR, ALONG WITH A SEPARATELY LOCATED SKID MARK, COUPLED WITH CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE LACK OF INSPECTIONS, PRECLUDED SUMMARY JUDGMENT FOR THE DEFENDANT.
Norman v. DCI Biologicals, 45 Fla. L Weekly D1021 (Fla. 2nd DCA April 29, 2020):
A man fell in the bathroom of a plasma donation center while he was there to make a donation. The plaintiff told the receptionist about his fall, and asked her to call an ambulance.
Sometime after the ambulance came, the medical supervisor created an incident report describing the fall, where the plaintiff noted that he went into the bathroom, and the next thing he knew he was waking up on the floor. He had an abrasion to his left eye and a contusion with a possible fracture, and was taken to lie down in the medical supervisor’s office.
The report also indicated that the medical supervisor checked the bathroom floor for any liquid, but did not find any.
During the plaintiff’s deposition, he testified that while on the floor, he noticed “like a cup of water” on the floor, along with “a couple of footprints like dirty footprints.” Some of the liquid got on his shirt, and the plaintiff testified he didn’t see any of the liquid until after he fell. He also testified that he saw at least two footprints, which looked muddy-ish.
Employees testified that the Plasma Center is very busy and noisy, opening at 7:00 a.m. and closing at 7:00 p.m. with approximately 150–300 donors coming in each day. There are separate male and female bathrooms, and each night after 7:00 p.m. non- employee janitors would clean the lobby and bathrooms, sometimes arriving just before the center would close. Notably, the plaintiff fell just before just before the center closed.
The Plasma Center did not have a set schedule for inspections of the bathrooms, but it did conduct them if they were informed that the bathrooms needed attention.
The plasma defendants moved for summary judgment arguing that the plaintiff’s unsubstantiated contention about seeing liquid and a footprint substance on the bathroom floor was insufficient as a matter of law to avoid summary judgment. Plaintiff opposed the motion, arguing that his deposition testimony regarding the condition and appearance of the substance, along with the testimony of the Plasma Center employees regarding the lack of inspections of the donor bathrooms, created a genuine issue of material fact on constructive notice. The trial court granted summary judgment against the plaintiff.
§768.0755, Fla. Stat. requires a slip and fall plaintiff to prove that a defendant had actual or constructive notice of the foreign substance. Plaintiff contended that the evidence of a cup’s worth of dirty water located near the bathroom sink, coupled with muddy footprints, a skid mark and a lack of evidence establishing that the bathroom was inspected on the day of the incident, created a genuine issue of material fact.
The court agreed that the presence of the liquid and the soiled water near the sink made it sufficient to infer that the liquid was not dirty when it was originally deposited on the floor. The footprints around the liquid was thicker than the other areas, also suggesting that the shoes that created those footprints, and might have also deposited soil. This fact combined with the fact that there were other areas where someone slid their foot, allowed inferences that the liquid was on the floor long enough for someone other than the defendant—perhaps multiple people—to have stepped in it.
The court said it did not have to decide whether the mere absence of evidence of how long the water had been there would preclude summary judgment, in light of the statute that places the burden on the plaintiff to prove constructive knowledge by showing the length of time with such that the defendant should have known about the condition. The court found the plaintiff’s testimony allowed that inference.
The court also observed that there were two separate inferential premises to support the ultimate conclusion that the liquid on the bathroom floor existed for such a length of time, that in the exercise of ordinary care the business establishment should have known of the condition (from the direct evidence of the dirty water on the floor with the muddy footprints, plaintiff proposed an inference that dirt and mud were deposited sometime sufficiently prior to his fall).
The other inference was a circumstantial one that no inspection of the men’s bathroom had been conducted during the entire business day. Because neither of the these two inferences depended on the other, they were not stacked, and instead were separate. When inferences are not stacked on top of the other, neither needs to be proven to the exclusion of all other reasonable ones. On this record, the court held summary judgment was improper, and reversed.
A CONFLICT IN JURISDICTIONAL EVIDENCE ON THE LONG-ARM STATUTE, REQUIRES AN EVIDENTIARY HEARING.
Greenspire Global, Inc. v. Knauss, 45 Fla. L Weekly D1019 (Fla. 2nd DCA April 29, 2020):
Plaintiff alleged that the defendants, an Iowa corporation and an Iowa resident committed various tortious acts in Florida. The allegations regarding Florida jurisdiction were that the defendant made representations during a business meeting with the plaintiff in Manatee County to negotiate terms of an exclusive license agreement between the defendant company and the plaintiff. Plaintiff also alleged that the defendant company had been conducting various other business activities in Florida.
The defendants filed two affidavits in support of their motion to dismiss for lack of jurisdiction. The plaintiff then filed an affidavit of its managing member in response, which drew supplemental affidavits from the defendants. While the trial court acknowledged conflicts in the evidence, it declined to have an evidentiary hearing, and then denied the motion to dismiss.
Even though the plaintiff’s complaint comported with the prongs of the Venetian Salami standard, the defendants submitted affidavits rebutting the jurisdictional allegations, thereby shifting the burden back to the plaintiff to prove a basis for long-arm jurisdiction. Because the conflicting evidence could not be harmonized without an evidentiary hearing, the trial court erred in failing to conduct one before denying the motion to dismiss.
ALLEGATION THAT FOREIGN COROPORATION INTERFERED WITH A CONTRACT, BUT NOT ALLEGING THE INTERFERANCE TOOK PLACE IN FLORIDA, DID NOT SUPPORT JURISDICTION, AND THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS FOR LACK OF JURISDICTION.
Helix Electric, Inc. v. Power Design, 45 Fla. L Weekly D1059 (Fla. 2nd DCA May 1, 2020):
Plaintiff sued a Florida resident and a foreign corporation, after the resident left plaintiff to work in a Virginia office of the defendant corporation. The defendant moved to dismiss the plaintiff’s tortious interference claim against it for lack of personal jurisdiction, arguing that the claim did not relate to, or arise from the corporation’s activities in Florida (meaning that the corporation lacked sufficient contact with Florida to allow that court to assert general jurisdiction over it).
In response, the plaintiff conceded there was not general jurisdiction, but asserted specific jurisdiction based on the tortious interference with the contract in Florida.
The plaintiff’s complaint failed to track the statutory language of §48.193. Instead, plaintiff argued that the allegations in the complaint were that the defendant resided in Florida, that the formed corporation was aware of plaintiff’s contract with the resident, that the foreign corporation hired the resident and placed him in a managerial position, and that the plaintiff suffered damages. The court found these allegations were insufficient to show that the corporation’s actions fell within §48.193(1)(a)(2).
The court explained that the plaintiff’s allegation that the foreign corporation’s actions resulted in a breach of a Florida contract and loss of income in Florida mere not material for the purpose of determining jurisdiction. Thus, the only remaining allegation in the plaintiff’s complaint to support jurisdiction was an allegation that the corporation had hired the resident and placed him in a managerial position, despite its knowledge of the resident defendant’s contract with the plaintiff. While these facts may have supported that the foreign corporation committed a tort, the complaint was not legally sufficient to allege personal jurisdiction based on a tortious act, because the complaint failed to allege that the acts were committed within Florida. The complaint should have been dismissed for lack of jurisdiction.