The Week in Torts – Cases from the Week of October 6, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 40
CASES FROM THE WEEK OF OCTOBER 6, 2017
DESPITE THE REFEREE’S RECOMMENDATION OF A 60-DAY DISCIPLINE, THE FLORIDA SUPREME COURT REJECTED THE RECORD AND SUSPENDED THE ATTORNEY FOR AN ENTIRE YEAR FOR DIRECT SOLICITATION OF A WOMAN AT A HOSPITAL, WHO WAS THERE WITH HER SON WHO HAD BEEN SERIOUSLY BRAIN-INJURED IN AN AUTOMOBILE ACCIDENT.
The Florida Bar v. Dopazo, 42 Fla. L. Weekly S840 (Fla. October 5, 2017):
The Bar had suspected this attorney to be involved in an unrelated illegal patient-client recruiting scheme with medical clinics involving local lawyers. However, the Bar admitted there was no “smoking gun” to directly support its allegations that this attorney was involved in that recruiting scheme, and the court found the Bar lacked clear and convincing evidence to support the attorney’s involvement.
However, also before the Bar was a case involving a woman who the attorney approached at the trauma center at Jackson Memorial Hospital, while she was in the hospital waiting with her son who had suffered a traumatic brain injury in an automobile accident.
There was no prior relationship between the mother and the lawyer, nor were his legal services sought by her or anyone acting on her behalf.
The referee found that the attorney’s appearance at the hospital was completely unexpected, and while she did apparently retain his services at that time, the mother’s limited education and fragile emotional condition likely rendered her unable to make a rational decision as to whether to retain counsel or reject the attorney’s efforts to sign her up as a client.
In defense of his actions, the attorney claimed his office had called him and told him to go see her in the hospital intensive care unit, but the referee found the explanation to be insufficient. The referee then recommended that the attorney be suspended for 60 days for this misconduct in violation of rule 4-7.18 (direct contact with prospective clients).
The supreme court found the referee’s recommendation to be far too lenient. Not only had this attorney been previously disciplined, but it noted that unethical violations of the solicitation rule such as the ones committed by this lawyer, have the potential to harm people who are already in a vulnerable condition and bring “dishonor and disgrace on the entire legal profession.”
The supreme court said it will not tolerate those improper solicitations and will impose severe sanctions on those who commit violations of them. The supreme court then sentenced the attorney to a one-year suspension. Good for the court.
PURSUANT TO STATUTE, CITY NOT LIABLE FOR AN INJURY SUFFERED BY THE PLAINTIFF WHO TRIPPED OVER A POT HOLE WHILE ROLLER BLADING IN A CITY STREET.
Casserly v. City of Delray, 42 Fla. L. Weekly D2055 (4th DCA September 27, 2017):
The plaintiff alleged that the City had failed to repair or warn against a pot hole in a city street which caused him injuries while he was roller blading. However, the circuit court reasoned that under the statutes, 316.0085 and 316.2065(11), the City had no liability.
The plaintiff argued those two sections should not have been read together. According to the plaintiff, each statute was clear and unambiguous and should have been given plain and obvious meanings, which then did not preclude the City’s liability. While the Fourth District agreed with the plaintiff to some extent, it held that reading section 316.0085 alone precluded the City’s liability.
That statute, which applies to skateboarding, inline skating, off-road bicycling, paintball, etc. precludes people from engaging in activities like inline skating in places unless the governmental entity has specifically designated an area for that activity. The statute specifically states that the governmental entity is not responsible to a person who participates in inline skating which takes place at a location designated for the activity.
The plaintiff conceded he was inline skating in an area not designated for such activity. The court rejected the plaintiff’s attempt to argue that because he was skating in an area that was not designated for such activity, that the government entity should have been liable. The court found this would lead to an absurd result.
Instead, the court stated that because the governmental entity did not specifically designate an area for such inline skating, the government could not be liable.
While one judge concurred, stating that had the plaintiff pled the complaint differently he may have been able to state a cause of action under a common law duty owed to a trespasser, the majority found that that issue had not been preserved.
WITHOUT A TRIAL COURT DETERMINATION THAT AS A MATTER OF LAW A GOVERNMENTAL ENTITY WAS NOT ENTITLED TO SOVEREIGN IMMUNITY OR IMMUNITY UNDER SECTION 768.28(9), THE GOVERNMENTAL ENTITY IS NOT AUTHORIZED TO APPEAL A TRIAL COURT’S INTERLOCUTORY ORDER BECAUSE IT IS NON-FINAL AND NON-APPEALABLE.
Miami-Dade County v. Pozos, 42 Fla. L. Weekly D2063 (Fla. 3rd DCA February 15, 2017):
Plaintiff filed a negligent security action against Miami-Dade County, after he was shot by an unidentified assailant while attending a party in a Miami park.
The County filed a motion for summary judgment asserting that sovereign immunity barred the plaintiff’s action. After conducting an evidentiary hearing, the trial court entered an unelaborated order which simply stated that the motion for summary judgment was denied.
Because the trial court did not determine that as a matter of law the County was not entitled to sovereign immunity or immunity under section 768.28(9), the County was not authorized to appeal the trial court’s order under rule 9.130(a)(3)(c) because it was still just a non-final, non-appealable interlocutory order.
In 2012, the supreme court amended the appellate rules to add two additional bases for non-final appeals:
(x) That, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or
(xi) That, as a matter of law, a party is not entitled to sovereign immunity.
The court reminded us, that the rule and the limited categories subject to interlocutory view, must be narrowly construed.
Like the consideration of issues involving workers’ compensation immunity, the rule seeks to prevent a waste of court resources. Still, the court stated it wants litigants to be clear that there must actually be a determination on the face of the order that the ruling has been based on the immunity.
The scope of the limited authority of review on appeal under rule 9.130(a)(3)(xi) is to review whether the trial court properly determined that as a matter of law a party is not entitled to sovereign immunity. The court does not have the authority to determine in the first instance whether as a matter of law the County is entitled to sovereign immunity. The trial court easily could have denied a motion for summary judgment for reasons distinct from the merits of the immunity in question, including whether there was an existence of a disputed issue of material fact or ongoing discovery that would render summary judgment premature.
Because this order did not explicitly state that it was being denied based on a determination of sovereign immunity, it was a non-final, non-appealable order.
NO CONTINGENCY RISK MULTIPLIER ON A CONTRACT WHICH PROVIDES THAT AN ATTORNEY WILL BE PAID AT A NORMAL HOURLY RATE WHETHER THE CASE IS WON OR LOST, AND A HIGHER AMOUNT IN THE EVENT OF AN AWARD BY THE COURT.
Florida Farm Bureau v. Gray, 42 Fla. L. Weekly D2086 (Fla. 1st DCA September 29, 2017):
While the insured here was successful, the agreement was not even partially contingent (let alone fully) because it still guaranteed payment for the attorney to win or lose, just at a higher rate in the event there were attorneys’ fees awarded. Because this was not a contingent fee contract, no multiplier was appropriate.