The Week in Torts – Cases From the Week of October 1, 2021
It’s just ordinary negligence
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 39
CASES FROM THE WEEK OCTOBER 1, 2021
TRIAL COURT PROPERLY DENIED MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRESUIT NOTICE, WHEN CASE WAS NOT BASED ON MEDICAL TREATMENT OR DIAGNOSIS
Lifestream Behavioral Center v. Allerton, 46 Fla. L. Weekly D2105 (Fla. 5th DCA September 24, 2021):
Plaintiff alleged that a man suffering from mental illness was admitted to the defendant’s facility, and that during his admission he was a suicide risk, and should have been under constant visual observation to ensure he did not commit suicide.
The estate sued the facility alleging that the decedent wrongfully died as a direct and proximate result of the facility’s negligence. The facility moved to dismiss the complaint, alleging that the suit actually sounded in medical malpractice, because the observation and evaluation at issue was a medical diagnosis, treatment and care. As a result, the estate’s failure to comply with the pre-suit requirements should have resulted in dismissal.
The court refused to grant the Writ of Certiorari. It agreed with the trial judge that the estate’s complaint sounded in general negligence rather than medical malpractice. It then helpfully noted, that any doubt as to whether a claim is for ordinary negligence or medical malpractice should generally be resolved in favor of the claimant, and denied the Petition.
ERROR TO DISMISS COMPLAINT WITH PREJUDICE AS SANCTION FOR ATTORNEY MISCONDUCT; REHEARING NOT NOTICED AS EVIDENTIARY HEARING, AND COURT FAILED TO ADDRESS ALL OF THE KOZEL FACTORS
Ofer v. Bernstein, 46 Fla. L. Weekly D2087 (Fla. 3rd DCA September 22, 2021):
The hearing on defendants’ motion to strike plaintiff’s complaint was not set as an evidentiary one, and the court did not address all of the Kozel factors, before dismissing the complaint with prejudice for misconduct.
While neither an evidentiary hearing nor a finding that all of the Kozel factors weigh in favor of dismissal with prejudice is required before a trial court exercises the “ultimate sanction of dismissal,” the Third District had previously remanded for an evidentiary hearing in cases where the absence of an evidentiary record and explicit findings rendered the order fatally insufficient. The court reversed without prejudice for the trial judge to rehear the motion to consider and address the Kozel factors.
1.420(e) REQUIRES NOTICE BEFORE DISMISSAL
Pernas v. General Impact Glass, 46 Fla. L. Weekly D2088 (Fla. 3d DCA September 22 2021):
The record contained no notice of the trial court’s intent to consider dismissing the case, no notice of hearing on the issue, and no 50-day grace period required by Rule 1.420(e).
In circumstances where the record is devoid of the required notice required by Rule 1.420(e), dismissal is erroneous and must be reversed.
COURT REVERSED POST-TRIAL DIRECTED VERDICT FOR PLAINTIFF, IN A CASE INVOLVING DOG RELATED INJURIES
Fannin v. Hunter, 46 Fla. L. Weekly D2100 (Fla. 1st DCA September 22, 2021):
The plaintiff and his wife agreed to watch a friend’s dog, a Weimaraner, for a few days. They had done so in the past without an issue. The couple themselves owned two dogs, a German shepherd and a golden retriever.
The plaintiff testified that one night while watching the Weimaraner, he turned his back, and the dog ran behind him and knocked him down, rendering him unconscious. Because his back was turned, however, the plaintiff did not see that the dog was running towards him and after he regained consciousness, the plaintiff made his way back to the house and advised his wife of his fall.
There was conflicting testimony regarding the details of the incident. Both the plaintiff and his wife testified that the Weimaraner was the only dog outside at the time of the incident, that their dogs were in crates at that time, and that they did not allow their dogs to go outside with the Weimaraner.
However, the plaintiff’s wife testified that the plaintiff informed her that the incident had occurred while he had left the “dogs” outside and the medical reports indicated that one of the plaintiffs’ “dogs” caused the injury.
There was also conflicting testimony about the day following the incident, about whether the dog was on a leash or not when he went home, and whether the plaintiffs’ dogs were allowed outside with the Weimaraner while that dog was not on his leash.
The jury found for the defendant, finding that the Weimaraner was not the legal cause of the plaintiff’s injuries. The plaintiffs successfully moved to set aside the verdict for entry of a directed verdict.
The court admonished that trial courts must consider motions for directed verdict with extreme caution, because the granting thereof amounts to a holding that the non-moving party’s case was devoid of probative evidence.
Under §767.01, Fla. Stat., dog owners are strictly liable for any damage done by their dogs to a person. The directed verdict in this case could only be sustained on appeal if there was absolutely no evidence rebutting the fact that the Weimaraner caused the incident. Because this record contained conflicting evidence, the directed verdict was improper.
In this case, the trial court granted both a directed verdict and a new trial. However, a trial court cannot simultaneously grant both. At most, the trial court may grant one, and alternatively grant the other on the express condition that the latter only becomes effective if the former is reversed on appeal. If an order granting a new trial on certain issues fails to state the reasons for which it was granted with sufficient clarity, then it must be reversed.
Here, the trial court’s order expressly granted a new trial with respect to damages, but not as an alternative to the directed verdict on the issue of liability. Thus, it appeared that the trial court meant to grant a new trial on damages only if the directed verdict on liability was upheld. Because the trial court erred in granting the directed verdict, the order granting a new trial had to also be reversed.