The Week in Torts – Cases from the Week of September 25, 2020
Mass Shooting? Sorry, It’s Just A Single Incident…
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 38
CASES FROM THE WEEK SEPTEMBER 25, 2020
THE SOVEREIGN IMMUNITY CAP LIMITING RECOVERY OF CLAIMS “ARISING OUT OF THE SAME INCIDENT OR OCCURRENCE” REFERS TO THE NEGLIGENCE OF THE STATE ACTOR– NOT TO THE THIRD PARTY’S ACTIONS –WHICH RESULTED IN MULTIPLE INJURIES.
Barnett v. State, 45 Fla. L Weekly S255 (Fla. September 24, 2020):
A DCF investigator negligently concluded that five children were not at a significant risk of harm. Shortly thereafter, the estranged husband of the children’s mother killed four of them, and severely injured the fifth.
Under the version of §768.28(5) which capped damages against DCF at $100,000 per incident and $200,000 per occurrence, the court looked to the language of the statute to ascertain the meaning of “per incident” and “per occurrence,” because the statute does not define those key terms. The court concluded that the plain and ordinary meaning, as well as the context, refers to the negligent acts or omissions of “state actors;” and not the omissions or wrongful conduct of the related tortfeasor in a derivative liability situation.
The court analogized its analysis of having to ascertain what the “injury causing event” is in situations involving multiple deaths in a mass shooting event, asking whether the multiple deaths or injuries refers to the whole event or criminal episode “i.e. the shooting incident,” or whether the shooting of each victim constitutes a separate incident or occurrence.
The court concluded that the phrase “same incident or occurrence” is most reasonably understood to mean the injury causing event as a whole, and not to the smaller segments of time and action that make up the crime against each individual victim. It is essentially “a single event with multiple victims.”
The court further found that the reading of that phrase fits most naturally when giving the context of subsection (5), which is designed to limit the State’s liability to a set amount for all claims arising out of an “incident or occurrence,” after which all claims must seek additional compensation from the legislature. A reading to the contrary, the court said, would essentially have it eliminating the aggregate cap out of the statute altogether when claims involve a criminal episode with multiple victims, which is unreasonable.
Even if the court found the phrase to be ambiguous, requiring it to resort to statutory construction, it would reach the same conclusion because statutes altering the common law are to be narrowly construed, and here, waivers of sovereign immunity must be construed narrowly in favor of the government.
Therefore, the court concluded that the claims stemming from the mass shooting arose from the same incident or occurrence, and were all subject to the $200,000 aggregate cap on damages paid by the State without a claim’s bill (the court recognized that the claims bill could be passed to compensate these victims, but that the State’s responsibility without such a claim’s bill would be limited to the $200,000 aggregate).
THE BARNETT CASE ABOVE ALSO APPLIES TO THE MASS SHOOTING CLAIMS ARISING OUT OF THE MARJORY STONEMAN DOUGLAS MASSACRE.
Guttenberg v. School Board of Broward County, 45 Fla. L Weekly S259 (Fla. September 24, 2020).
DISMISSAL FOR THE FAILURE TO COMPLY WITH RULE 1.260(a)(1) SHOULD BE WITHOUT PREJUDICE.
Bryant v. Geoghagan, 45 Fla. L Weekly D2185 (Fla. 5th DCA September 18, 2020):
The trial court properly dismissed the plaintiff’s claims for failure to comply with Rule 1.260(a)(1) upon the death of the defendant. While the dismissal was proper, it should have been without prejudice.
ATTORNEY’S FEES, SANCTIONS AND TAXABLE COSTS ALL ARISING OUT OF THE SAME MATTER SHOULD BE HANDLED TOGETHER.
Vang v. Guillen, 45 Fla. L Weekly D2185 (Fla. 5th DCA September 18, 2020):
The trial court sanctioned $7600 against the defendants for conduct which the opinion notes was material to the resolution of the case.
However, at trial, the trial court directed a verdict for the defendants, entitling them to taxable costs and attorney’s fees pursuant to a proposal for settlement. The court held that the sanction amount should be set off from the fees and costs the plaintiff would owe to the defendant. Not sure why that required a whole appeal.
TRIAL COURT ERRED IN DIRECTING A PARTIAL VERDICT IN FAVOR OF THE PLAINTIFF, FINDING THAT THE DEFENDANT DRIVER’S ADMITTED NEGLIGENCE WAS A PROXIMATE CAUSE OF THE ACCIDENT—THE TRIAL COURT’S RULING IMPROPERLY SHIFTED THE PLAINTIFF’S BURDEN OF PROOF TO THE DEFENDANT, NECESSITATING A NEW TRIAL.
Vitro America, Inc. v. Ngo, 45 Fla. L Weekly D2192 (Fla. 1st DCA September 21, 2020):
Several hours before dawn, the plaintiff was traveling his usual route to work. At the same time, a driver employed by the defendant Vitro was executing a back-up maneuver to deliver an order to a business located on the same highway. The defendant driver was operating an eighteen-wheeler and the backing maneuver positioned the truck into a jack-knife posture as he backed the truck into the business. According to the defendant driver, the truck’s hazard lights were flashing and his headlights and running lights were illuminated. There was also reflective tape along the side of the trailer.
As the driver backed up, he testified that he checked his mirrors and did not see any vehicles on the highway. The plaintiff drove that stretch of highway nearly every day, and had never before seen or expected to see an eighteen-wheeler backing up into his lane of travel. Plaintiff testified that prior to the collision, he was not distracted, his low beams were on, his vehicle was on cruise control set at 50 miles per hour despite the legal limit being 55, and there was no natural light or streetlights. Still, as the plaintiff described it, he looked and all of a sudden, the truck appeared in front of him out of nowhere. The plaintiff collided with defendant’s truck causing extensive catastrophic injuries, and resulting in a verdict of over $8 million dollars.
During defendant’s opening, counsel admitted that the defendant driver was negligent but questioned whether that negligence was the proximate cause of the plaintiff’s injuries, suggesting that it was either the defendant driver, the plaintiff, or some combination thereof that caused the collision.
There was evidence on both sides, and after defendant rested its case, the plaintiff’s attorney moved for a partial directed verdict asking the court to find that the admitted negligence of the defendant’s driver was also the proximate cause of the accident. The court granted the motion, finding there was no issue of fact for the jury to decide, because it was unanimous through the witnesses that at least in some part, the defendant’s negligence was the proximate cause of the plaintiff’s injuries.
The defendant moved for directed verdict on comparative fault, asserting that the undisputed evidence proved that the plaintiff could have and should have taken some evasive action to avoid the accident, leaving for the jury the potential question of apportioning fault between the two parties. The trial court ruled that a jury question remained about the factual issue of perception and visual clutter, and if the jury believed everything that the plaintiff’s expert witness said, it could find against the defendant. The jury found plaintiff 1% at fault and the defendant 99%.
The court began its analysis admonishing that rarely are motions for directed verdicts appropriate in negligence cases. It found that the trial court had “jumped the gun” in directing a verdict on the question of proximate cause, and that it should have determined causation. Here, there was sufficient evidence from which the jury could have concluded that the sole proximate cause could have rested with either party based on the facts. The defendant’s expert had testified that the plaintiff’s negligence was the sole legal cause of his injuries, and the fact that the jury was charged with finding whether the plaintiff was also negligent in order to apportion fault, did not cure the trial court’s original error in directing a verdict that the defendant driver was as a matter of law a legal cause of the plaintiff’s harm. This erroneous ruling required a new trial.