The Week in Torts – Cases from the Week of November 17, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 46
CASES FROM THE WEEK OF NOVEMBER 17, 2017
TRIAL COURT ERRED IN FAILING TO GRANT POST-TRIAL MOTION FOR DIRECTED VERDICT IN A SLIP AND FALL CASE WHERE PLAINTIFF FAILED TO INTRODUCE EVIDENCE OF THE DEFENDANT’S ACTUAL OR CONSTRUCTIVE NOTICE.
Miami-Dade County v. Jones, 42 Fla. L. Weekly D2382 (Fla. 3rd DCA November 8, 2017):
Plaintiff alleged that a grease spill on a county-owned sidewalk caused her to slip and fall. The plaintiff fell while visiting a barbecue stand located on private property, and she contended that a faulty grease disposal system underneath the stand caused the grease to spill onto the sidewalk. She alleged that the owner of the property was responsible for creating the dangerous condition, but also alleged that the defendant county had negligently maintained the sidewalk by allowing it to remain.
The jury found the owner and the county each 50% responsible. The county filed a motion for JNOV arguing that there was no evidence that it had notice of a dangerous condition. The county also objected that the trial judge had allowed the plaintiff to introduce county ordinances and other irrelevant and prejudicial evidence in an attempt to prove that the county had notice.
The plaintiff conceded that the county did not cause the grease to spill. The court also found no evidence in the record to indicate how long the grease had been present on the sidewalk on the day the plaintiff did fall.
To the contrary, the plaintiff testified that she did not know how long the grease had been on the ground that day but that it appeared fresh. The question then became whether the plaintiff presented evidence to support her allegation that the grease was present on the sidewalk with such frequency that the county should have known about it.
The only evidence that was introduced had to do with ordinances relating to inspections and permits for public food establishments, but this evidence which tended to show that the county had constructive notice of the grease spill was admitted in error. The mere fact that an ordinance may cover the subject of inspecting food establishments did not imply that the county had constructive notice of the dangerous condition created by a food establishment.
The court reversed and remanded for entry of a directed verdict in favor of the county.
CASE PROPERLY DISMISSED BASED ON FORUM NON CONVENIENS.
Herrera-Zenil v. Tome, 42 Fla. L. Weekly D2381 (Fla. 3rd DCA November 8, 2017):
The Florida Supreme Court adopted the federal forum non conveniens standard in Kinney v. Continental Insurance “out of growing concern that Florida was becoming a courthouse for the world.”
Under this standard, a trial court presented with a forum non conveniens motion must consider (1) whether an adequate alternative forum exists which has jurisdiction over the case; (2) all relevant private interests, keeping in mind the strong presumption against disturbing a plaintiff’s initial forum choice; (3) if the balance of private interests is at or near equipoise, whether relevant public interests tip the scale in favor of another forum; and (4) if the balance favors an alternative forum, the court must ensure that plaintiffs can bring suit in the alternative forum.
In this case, the defendants presented evidence of ongoing parallel litigation in Mexico among the parties on some of the same issues plaintiff raises in their complaint. Based on the unrebutted testimony of defendant’s Mexican legal expert, the court found that Mexico would provide an adequate additional forum for the causes of action asserted in the complaint.
Because the trial court properly analyzed the Kinney factors before reading its conclusion, the court found no abuse of discretion.
SURGEON GENERAL REPORTS ARE HEARSAY THAT ARE INADMISSIBLE AS PUBLIC RECORDS OR ADOPTIVE ADMISSIONS, AND MAY NOT BE USED TO BOLSTER OPINIONS OF TESTIFYING EXPERTS.
R.J. Reynolds v. McCoy, 42 Fla. L. Weekly D2408 (Fla. 4th DCA November 8, 2017).
A FINAL JUDGMENT ENTERED BY THE CIRCUIT COURT IS NOT VOID FOR SUBJECT MATTER JURISDICTION WHEN THE DAMAGES AWARDED ARE ULTIMATELY LESS THAN $15,000, AS LONG AS THE COMPLAINT SEEKS DAMAGES IN EXCESS OF THE JURISDICTIONAL AMOUNT IN GOOD FAITH.
Plutt v. Ross, 42 Fla. L. Weekly D2408 (Fla. 4th DCA November 8, 2017):
After final judgment was entered for the plaintiff for approximately $7,000, the defendants contended that the final judgment was void for lack of subject matter jurisdiction because the amount in controversy did not ultimately exceed $15,000.
However, a court’s subject matter jurisdiction over a case generally depends on the good faith allegations in the complaint as to the amount in controversy, and the time to assess the good faith is at the point when the action is commenced.
Once jurisdiction is properly invoked by the complaint, the court then retains jurisdiction to enter an award irrespective of that amount. Without any evidence that the initial allegations were made in bad faith, the court had subject matter jurisdiction notwithstanding the amount of the final judgment.
VALID SERVICE REQUIRES THE NAME OF THE PERSON SERVED.
Murphy v. Cach, LLC, 42 Fla. L. Weekly D2413 (Fla. 5th DCA November 9, 2017):
Pursuant to section 48.21, the court erred in refusing to quash service of process when the amended affidavit was facially deficient. Under that statute, if the affidavit does not contain the name of the person served it is invalid.
Additionally, when a defendant asserts a timely challenge to personal jurisdiction, he or she is not considered to have waived the personal jurisdiction objection by filing certain motions as long as those motions do not seek affirmative relief.