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The Week in Torts – Cases from the Week of January 24, 2020
Immunity Check
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 3
CASES FROM THE WEEK JANUARY 24, 2020
FLORIDA SUPREME COURT AMENDS RULE 9.130 (a)(3)(C)(xi) REGARDING NON-FINAL APPEALS RELATED TO SOVEREIGN IMMUNITY.
Florida Highway Patrol v. Jackson, 45 Fla. L Weekly S32 (Fla. January 23, 2020):
This case arose after a man tragically died in a pre-dawn car accident on I-75 caused by smoke from a nearby brush fire impairing visibility. After several accidents, (that happened before his), FHP had closed the interstate for several hours. Plaintiff alleged FHP re-opened the interstate to soon and negligently monitored the smoke, which was an operational decision for which FHP could be held responsible.
In denying FHP’s motion for summary judgment made based on sovereign immunity barring the claim, the trial court concluded that there were disputed issues of material fact regarding the extent and adequacy of the department’s continued monitoring of the roadway.
FHP appealed the non-final order to the First District. The court held that it was constrained by Rule 9.130(a)(3)(C) to find that there could be no appellate review at that time.
The Florida Supreme Court found that the First District was correct and that the rule does not permit an appeal of a non-final order denying immunity, even when the record shows that the defendant is entitled to immunity as a matter of law unless the trial court explicitly precludes it as a defense.
That said, the Supreme Court then advised of its decision to amend Rule 9.130 to expand the availability of appellate review of non-final orders denying sovereign immunity. That opinion (next on this list) changes the rule.
In the meantime, the Florida Supreme Court approved the decision of the First District but did so without prejudice to FHP to argue sovereign immunity to the trial court again pursuant to the opinion, and if necessary to seek a second interlocutory review under the new version of Rule 9.130.
AMENDMENTS TO RULE 9.130 ALLOWING BROADER REVIEW OF NON-FINAL ORDERS DENYING SOVEREIGN IMMUNITY.
In re: Amendments to Florida Rule of Appellate Procedures 9.130, 45 Fla. L Weekly S36 (Fla. January 23, 2020).
The court, on its own motion, amended Rule 9.130 to expand the availability of appellate review of non-final orders (a) denying sovereign immunity, (b) denying immunity in civil rights claims arising under federal law, and (c) denying immunity under §768.28(9).
The amendments allow appeals of non-final orders that deny a motion that asserts entitlement to the types of immunity addressed in those subdivisions, removing the requirement that orders must determine as a matter of law, that a party is not entitled to the immunity asserted.
If the trial court’s order denies a motion asserting entitlement to immunity, there is no jurisdiction to review it, and the appellate court may review as much of the record as is necessary to resolve the question presented in the appeal.
In this decision, the Florida Supreme Court also asked the Appellate Rules Committee to consider the section on workers’ compensation immunity, suggesting that that part of the rule should be similarly amended with respect to that kind of immunity.
The amendment became effective on the date the decision was released. However, because the amendments were not published for comment prior to their adoption, the court allowed interested persons to have 75 days from the date of the opinion to file comments.
AMENDMENT TO CIVIL STANDARD JURY INSTRUCTIONS—MODEL INSTRUCTIONS AND SEVERAL OTHERS AMENDED WITHOUT CONTROVERSY.
In re: Standard Jury Instructions In Civil Cases, Fla. L Weekly S40 (Fla. January 23, 2020).
Model Instruction Number 1 was amended to now specifically ask the jury whether the plaintiff in the hypothetical case sustained a permanent injury. Model Instruction Number 1 now serves as a full illustration of the instructions to be given at the beginning and at the end of a case (to which it applies).
ALTHOUGH FRYE WAS THE RELEVANT STANDARD FOR ASSESSING EXPERT TESTIMONY AT THE TIME OF TRIAL, THE APPELLATE COURT APPLIED DAUBERT BECAUSE SUPREME COURT ADOPTED THAT STANDARD DURING THE PENDENCY OF THIS APPEAL AND THE CHANGE APPLIED RETROACTIVELY BECAUSE THE AMENDMENT WAS PROCEDURAL.
La Rocca v. State, 45 Fla. L Weekly D99 (Fla. 4th DCA January 15, 2020).
No further summary.
TRIAL COURT DID NOT ABUSE DISCRETION IN GIVING DEFENSE COUNSEL SEVENTY-FIVE MINUTES TO CONDUCT VOIR DIRE INSTEAD OF THE REQUESTED TWO-HOURS IN THIS CRIMINAL CASE—THERE IS NO MATHEMATICAL FORMULA TO DETERMINE HOW MUCH TIME A TRIAL COURT SHOULD ALLOCATE FOR VOIR DIRE, THAT DETERMINATION IS MADE ON A CASE- BY- CASE BASIS.
Cassaday v. State, 45 Fla. L Weekly D101 (Fla.4th DCA January 15, 2020):
In this sexual battery case, the defendant argued that the trial court abused its discretion by limiting time for questioning during voir dire. The trial court initially gave each side 45 minutes, but then allowed the defendant to continue questioning prospective jurors for closer to 70 minutes, and then gave defendant an additional five more minutes. The court found that the time limit was not an abuse of discretion as applied to the facts and issues in the case, even though the defense attorney had requested two hours to question the 40 jurors.
There is no mathematical formula to determine how much time a trial court should allocate for voir dire, and such decisions are made on a case-by-case basis. The court found there was no abuse in discretion in the time allotted in this case.
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE DEFENDANT IN A PREMISES LIABILITY CASE WHERE THE PLAINTIFF WAS ATTACKED TWICE BY A THIRD PARTY—THERE WAS A FACTUAL ISSUE AS TO WHETHER THE SECOND ATTACK WAS FORESEEABLE, AND THERE WERE ALSO FACTUAL QUESTIONS ON PROXIMATE CAUSATION.
Bryan v. Galley Maid Moving Product, 45 Fla. L Weekly D108 (Fla. 4th DCA January 15, 2020):
The plaintiff was out drinking with the owner of Galley Maid and three others. When the bar closed, the group went back to the Galley Maid shop; a place that builds and manufactures equipment for yachts, and does other machine shop work. The group went there to see a tank, which the owner had restored.
Fifteen to twenty minutes after arriving there, one of the other people in the group suddenly and without provocation attacked the plaintiff. The third-party knocked the plaintiff unconscious, and no one administered first aid or attempted to contact the police or an ambulance, because they were scared of the third party attacker.
The plaintiff was unconscious for 17 minutes, and when he regained consciousness, he spoke with the owner for several minutes. The plaintiff then walked outside with the attacker, where he was attacked a second time. Again, the owner testified he did not call 911 because he was still scared, and because the plaintiff was up and moving around.
Plaintiff later sued Galley Maid for negligence alleging he was an invitee on the premises and that the owner had a duty to exercise reasonable care to give or to secure first aid.
The defendant argued that the plaintiff was only a licensee on its premises and not an invitee, so the only duty owed was to refrain from wanton negligence willful misconduct, or from intentionally exposing plaintiff to danger.
While the trial court ruled that the owner’s conduct was reprehensible, the judge did not believe that there was a special relationship between the parties and concluded that none existed because both attacks were unforeseeable criminal acts.
The court first ruled that the plaintiff was expressly invited onto the premises and therefore was an invitee. While the first attack was not reasonably foreseeable, the court found there were factual issues as to whether the second attack was.
The court further concluded that genuine issues of material fact existed as to whether the owner of Galley Maid had a duty to render or call for aid after the attacks, under the principle that a proprietor is under an ordinary duty of care to render aid to an invitee after he knows or had reason to know the invitee is ill or injured. Because there were issues of fact regarding the owner’s duties to the plaintiff, and the possible breach of those duties, the court reversed summary judgment. There were also issues of fact regarding proximate causation, which is typically a factual question for a jury.
TRIAL COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW IN ORDERING DEFENDANTS IN A PERSONAL INJURY CASE TO PROVIDE INFORMATION REGARDING THE FINANCIAL RELATIONSHIP BETWEEN MEDICAL EXPERTS RETAINED BY THE DEFENDANT AND THE DEFENDANT’S LIABILITY INSURER AND COUNSEL—QUESTION CERTIFIED AS TO WHETHER THE WORLEY ANALYSIS SHOULD APPLY TO DEFENDANT INSURANCE COMPANIES AND LAW FIRMS (THEREBY PREVENTING THEM FROM HAVING TO DISCLOSE THEIR FINANCIAL RELATIONSHIP WITH PHYSICIANS INCLUDING THOSE PERFORMING CMES UNDER RULE 1.360).
Barnes v. Sanabria, 45 Fla. L Weekly D135 (Fla. 5th DCA January 17, 2020):
Plaintiff served a request for production on the defendant’s insurance company and the defendant’s law firm seeking documentation related to the subject matter of interrogatories, which also sought to discover the amount of fees that the insurance company and/or the defendant’s law firm paid to each of the CME doctors for the last three years. The insurance company and the law firm argued that such discovery requests were improper because neither the insurance company nor the law firm were “parties” to the action, relying on Worley, and holding that Boecher information cannot be sought from non-parties.
The parties argued that applying Worley to protect non-parties from that type of discovery only on the plaintiff’s side constitutes a denial of equal protection, a deprivation of due process, and denial of access to the courts.
Agreeing that the current state of the law under Worley made trial court’s ruling correct, the court nevertheless certified the question to the Florida Supreme Court about the application of Worley to parties on both sides of the “V.”