The Week in Torts – Cases from the Week of September 16, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 37

CASES FROM THE WEEK OF SEPTEMBER 16, 2016

GENUINE ISSUE OF MATERIAL FACT REGARDING FRONT DRIVER’S POTENTIAL NEGLIGENCE IN A REAR-END COLLISION, PRECLUDED SUMMARY JUDGMENT AGAINST THE REAR DRIVER.

Padilla v. Schwartz, 41 Fla. L. Weekly D2068 (Fla. 4^th DCA September 7, 2016):

This accident occurred on the turnpike. The defendant testified that he was driving within the posted speed limit surrounding a construction zone, and did not see any nearby cars on the road immediately before the accident occurred. He claimed that the plaintiff’s car then appeared suddenly in front of him without warning, and though he applied the brakes, he was unable to avoid hitting the back left of her vehicle.

The plaintiff moved for summary judgment on the rear-end presumption. The defendant countered that his deposition testimony created evidence that there was no car in front of him until the plaintiff suddenly invaded his lane, and that was more than sufficient to rebut the rear-end presumption.

Reminding us that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact with the court drawing every possible inference in favor of the party against whom summary judgment is sought, the court also noted how the rear-end presumption can be rebutted by evidence from which a jury could conclude that the front driver was negligent, and comparatively at fault in the accident.

In this case, the defendant’s deposition testimony about what he observed prior to the accident constituted evidence regarding the plaintiff’s vehicle and her manner of driving. The testimony sufficiently rebutted the rear-end presumption. When there is evidence of a sudden or unexpected maneuver by the front driver, the presumption cannot be applied on summary judgment because a fact question exists.

TO EVADE ENFORCEMENT OF A MANDATORY FORUM SELECTION CLAUSE, CONTRACTUALLY AGREED UPON VENUE MUST BE “UNREASONABLE OR UNJUST”–MERELY SHOWING THAT LITIGATION IN ANOTHER FORUM WOULD RESULT IN ADDITIONAL EXPENSE OR INCONVENIENCE IS NOT ENOUGH.

R.S.B. Ventures v. Berlowitz, 41 Fla. L. Weekly D2070 (Fla. 4^th DCA September 7, 2016).

TRIAL COURT PROPERLY GRANTED NEW TRIAL WHEN PLAINTIFF’S COUNSEL IMPROPERLY ARGUED DEFENDANTS’ FAILURE TO TAKE RESPONSIBILITY AND TO APOLOGIZE.

Cohen v. Philip Morris, 41 Fla. L. Weekly D2073 (Fla. 4^th DCA September 7, 2016):

A trial court should grant a new trial based on improper argument, if the argument was so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial. Where multiple errors are found, even if deemed harmless individually, the cumulative effect of such errors may deny a defendant the right to a fair and impartial trial.

It is improper for attorneys to suggest in closing argument that a defendant should be punished for contesting damages at trial, or that defending a claim in court is improper.

Finding that counsel made arguments which crossed the line, the court agreed that the trial court did not abuse its discretion in granting a new trial based in part on those comments. In this tobacco case, it was not enough that punitive damages were at issue. The arguments were not clearly linked to proving the intentional misconduct or gross negligence.

IN A CONCURRING OPINION, JUDGE ROTHENBERG ADMONISHES PLAINTIFF’S COUNSEL FOR HIS “EXCEPTIONALLY IMPROPER” CLOSING ARGUMENT.

Burger King Corp. v. Lastre-Torres, 41 Fla. L. Weekly D2087 (Fla. 3^rd DCA September 7, 2016):

Because counsel’s closing arguments were racially and ethically charged, and made in an effort to invoke sympathy for the plaintiff and anger towards the seemingly uncaring corporate defendant, they were improper (but the case was not reversed due to lack of objection). 

The plaintiff, who was born in Cuba, only spoke Spanish. Plaintiff’s theme throughout closing argument focused on the difficulty facing first generation Americans entering the work force. Counsel emphasized how the plaintiff was afraid for his job, and so just did anything that he was told, because he was a first generation American.

ON REHEARING, COURT REITERATES THAT A DEFENDANT STABLE OWNER AND HORSE OWNER WERE IMMUNE FROM LIABILITY UNDER FLORIDA’S EQUINE ACTIVITIES LIABILITY ACT FOR A HORSE BITE SUFFERED BY THE PLAINTIFF WHILE ENGAGED IN EQUINE ACTIVITY–PLAINTIFF WAS ENGAGED IN ORGANIZED EQUINE ACTIVITY WHEN HE WAS VISITING THIS STABLE LOOKING TO BUY HORSES, AND WAS THUS SUBJECT TO THE STATUTE.

Germer v. The Churchill Downs Management, 41 Fla. L. Weekly D2089 (Fla. 3^rd DCA September 7, 2016).

PLAINTIFF ESTABLISHED PROPER SERVICE UNDER SUBSTITUTE SERVICE STATUTE WHEN RETURN OF SERVICE WAS REGULAR ON ITS FACE–SERVICE WAS PRESUMPTIVELY VALID AND SHIFTED THE BURDEN TO THE DEFENDANT TO PROVE IT WAS INVALID.

Coutts v. Sabadell United Bank, 41 Fla. L. Weekly D2097 (Fla. 3^rd DCA September 7, 2016):

A return of service does not have to show compliance with the substitute service statutes on its face to be valid. A return of service that is regular on its face must include statutory factors included in section 48.21. However, it need not contain information showing compliance with section 48.031(1)(a).

When a return of service is valid on its face, it is presumptively valid, and shifts to the defendant the burden of establishing by clear and convincing evidence that the service was invalid.