The Week in Torts – Cases from the Week of October 4, 2019
Who Got The Judgment?
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 40
CASES FROM THE WEEK OF OCTOBER 4, 2019
THE “PARTY RECOVERING JUDGMENT” AND NOT THE “PREVAILING PARTY” IS THE ONE ENTITLED TO RECOVERING TAXABLE COSTS.
Sherman v. Sherman, 44 Fla. L. Weekly D2391 (Fla. 4th DCA September 25, 2019):
The action arose out of a partition of property, where the plaintiff appellant sought an award from the defendant appellee to recover her costs. Sitting en banc, the Fourth District receded from conflicting language regarding the appropriate standard for awarding costs pursuant to section 57.041(1) and clarified that the “party recovering judgment” is the party entitled to recover costs.
In this case, a woman sued her brother after their mother died seeking declaratory relief based on claims arising out of an irrevocable trust. The brother raised affirmative defenses and counterclaims.
After a trial, the court concluded there had been no evidence presented as to any of the common law damage claims made by either party and therefore dismissed those claims. The trial court did grant the sister’s request for declaratory judgment, and also granted the sister’s request to liquidate the trust.
The final judgment directed the sister to advance any and all subsequent cost and fees, with a provision that she would be reimbursed by the clerk of the court by the sale of property. However, the final paragraph of the judgment stated that other than indicated, each party would bear its own costs and fees.
The final judgment did not grant any relief to the brother, nor did it determine that he prevailed on any defense.
On appeal, the sister argued that the trial judge erroneously denied her costs finding that there was no prevailing party since the net effect of the judgment was to grant partition. She argued that she was entitled to costs because she was the “party recovering judgment” under the statute.
As part of its analysis, the court went through a series of cases providing inconsistent analyses of when one is entitled to costs under section 57.041, even pointing out language in one of the cases which suggests that “the party recovering judgment” and the “prevailing party” are equivalent standards.
The court referred to the City of Boca Raton v. Basso, 242 So. 3 1141 (Fla. 4th DCA 2018) where it had discussed multicount claims and successful defenses. In that case, both had prevailed in some way, and both parties moved for costs.
Despite the damages awarded to the plaintiff, the city had moved for costs asserting it prevailed on a defense, and the trial court determined each party was entitled to their costs in their entirety with respect to the prevailed upon counts, thus awarding a net costs final judgment in favor of the city (whose costs were more) after deducting what the plaintiff incurred. The Fourth District had determined it was error to deny the plaintiff’s motion for all of her costs where she had recovered money. However, after that, the Fourth District issued a subsequent decision, which suggested the costs were governed by the prevailing parties’ standard.
The Fourth District concluded that the proper standard is to award costs to the “party recovering judgment.”
As to the argument that the “party recovering judgment” does not apply where claims sound in equity, and due to the equity court’s traditional discretion to apportion costs, the court concluded that there is no authority to suggest that section 57.041(1) should be applied differently to equitable claims.
As such, the court ruled that the sister/appellant/plaintiff was entitled to her costs under section 57.041(1) because she was the party who recovered judgment in the action. The court explicitly receded from language in its prior opinions construing the “prevailing party” standard to apply costs, making clear that costs are only to be awarded to the “party recovering judgment” under the statute.
UNDER THE FACTS OF THIS CASE, “THE STATEMENT OF FACTS AND IDENTIFICATION OF DISPUTED FACTS AND LAW” WERE SUFFICIENT FOR TRIGGERING A TRIAL DE NOVO AFTER ENTRY OF A NON BINDING ARBITRATION AWARD.
De Acosta v. Naples Community Hospital, 44 Fla. L. Weekly D2402 (Fla. 2nd DCA September 25, 2019):
In this medical malpractice case, the trial judge referred the parties to non-binding arbitration, which resulted in a ruling for the defendant hospital. Nine days after the non-binding arbitration award was entered, the plaintiff filed a “Statement of facts, identification of disputed facts, and identification of issues of law.” The hospital responded by filing its own such statement.
However, after the twenty-day period expired, the hospital filed a notice of the decision, asserting that no party had moved for a trial de novo within the time required under section 44.103(5) and rule 1.820(h). The plaintiff filed a motion for trial de novo on that same day, and the trial court sua sponte entered final judgment in favor of the hospital, consistent with the arbitration award.
The court ruled that under the circumstances of this particular case, rule 1.820(h) should not be strictly applied. It found that a notice of trial had already been served prior to the arbitration proceedings, and both parties filed documents or engaged in conduct suggesting they were proceeding to the already set trial date, which amounted to a waiver of the requirements under rule 1.820(h).
The court also noted that crucial to its holding in this particular case, was the fact that the hospital had filed its own statement of facts and identification of issues of law, where it acknowledged there were disputed factual legal issues, which led the plaintiff to believe that the hospital was also prepared to proceed to the already set trial date.
It wasn’t until after the twenty-day period had expired that the hospital sought to have final judgment entered in its favor, which the court noted was in the proceeding in such a manner, nature of “gotcha” tactic. Additionally, the court found that the hospital had not argued or shown that it had been prejudiced in any way.
SUMMARY JUDGMENT APPEALED IN SLIP AND FALL CASE BASED ON A “UNEVEN FLOOR” CLAIM – NO DUTY TO WARN OF CERTAIN “OPEN AND OBVIOUS” DANGERS.
Contardi v. Fun Town, LLC, 44 Fla. L Weekly D2431 (Fla. 5th DCA September 27, 2019):
A child was injured at a roller skating rink operated by the defendant. The injury occurred when the child attempted to step off the rink and onto the floor, and one of her skates got caught on the lip between the skating rink floor and the floor of the building, causing her to fall and break her leg.
The plaintiff theorized that defendant had created a hazardous and dangerous condition by having an improper and unmarked change in elevation between the skating rink floor and the building’s sub floor. Plaintiff further alleged that the defendant breached its duty by failing to warn her of the dangerous condition, or to otherwise prevent her from accessing this dangerous area of the skating rink.
The defendant moved for summary judgment, asserting that the difference in the floor levels where the child fell was open and obvious and not inherently dangerous, and therefore it had no duty to warn her of the change in elevation. The defendant also observed that the plaintiff had testified that during the same visit she had previously exited the rink onto the floor without incident, had no difficulty or problems with the skates, and was looking ahead and not at the floor when she tripped.
The plaintiff responded to the motion but presented no evidence in opposition to it. The trial court granted the defendant’s motion relying on a supreme court case holding that multiple floor levels are not inherently dangerous conditions, and are so commonplace that the possibility of their existence is known to all, so that warning of such common conditions goes beyond the duty of reasonable care owed to the invitee.
The plaintiff argued that the precedent was inapposite because it involved a fall at a residential (and not a commercial setting), and there were disputed issues of fact about the darkness of the skating rink and the disco light being used.
The court reminded us that owners and occupiers of land owe invited two duties: (1) to use ordinary care in keeping the premises in a reasonably safe condition; and (2) to give timely warning of latent or concealed perils that are known or should be known by the owner or occupier but that are not know to the invitee or that by the exercise of due care could not have been known by the invitee.
However, there is no duty to warn an invitee of an obvious danger, and this duty does not vary from a residential to a commercial context. Uneven floor levels in public places by themselves do not constitute latent, hidden dangerous conditions. Also, dim lighting does not transform an otherwise obvious change in floor elevation into a latent danger either.
In this case, the plaintiff testified that she had successfully exited the skating rink onto the floor under the same lighting conditions that were present earlier in the day. Because the uneven floor levels even in dim lighting constitute an open and obvious danger, the defendant had no duty to warn the plaintiff of the difference in levels between the rink and the rest of the building.
Lastly, while an obvious danger may discharge a landowner’s duty to warn, the defendant still had a separate duty to maintain the premises in a reasonably safe condition. In this case, the plaintiff did not allege argue or present evidence in opposition to the defendant summary judgment that the condition of the lip or step where the child fell was improperly maintained in disrepair or negligently designed. As such, there were no genuine issues of material fact and summary judgment was warranted.
TRIAL COURT ERRED IN DISMISSING COMPLAINT AS TIME-BARRED WHEN PLAINTIFF FILED SUIT AGAINST TWO DEFENDANTS BUT ONLY ASSERTED ONE COUNT AGAINST BOTH, AND THEN LATER AMENDED TO ADD COUNT AGAINST THE SECOND ONE, THE COMPLAINT RELATED BACK.
Mitchell v. Applebee’s Services, Inc., 44 Fla. L Weekly D2443 (Fla. 1st DCA October 1, 2019):
The plaintiff was involved in a slip and fall at an Applebee’s restaurant. Two days before the statute of limitations ran, she filed suit against two defendants. In the body of the complaint, it was abundantly clear that the plaintiff was suing two separate entities, but the complaint only included a single count of negligence against one of them.
Notably, six months after being served, the other defendant filed an answer to the complaint with affirmative defenses.
Later, the defendant then filed a motion to dismiss alleging that the complaint had failed to state a cause of action. Before that hearing, the court had granted plaintiff leave to amend her complaint which was identical to the initial complaint in all respects, except that it added a second count alleging that the defendant had purchased the restaurant from the other defendant and, that by written agreement, assumed all the debts, liabilities, and responsibilities.
In response, the defendant then filed a second motion to dismiss, principally arguing that the new cause of action was filed well beyond the four-year statute of limitations.
The court observed that the interpretation of rule 1.190(c) becomes even more apparent when considering the purpose served by statutes of limitations which are designed to protect defendants from unusually long delays in the filing of lawsuits, and to prevent prejudice to defendants from the unexpected enforcement of stale claims.
When there is no doubt regarding the identity of a party intended to be named, it is not unfair or unjust to permit a plaintiff to correct a pleading, particularly because the defendant suffers no prejudice.
In this case, the defendant had participated in the lawsuit from the beginning, thereby undermining any argument that it had no notice of the original action or was surprised in any way by the amended complaint, or was not given fair notice of the general factual scenario. Therefore, the amended complaint related back to the original filing date and the statute of limitations was not a valid basis for dismissal.