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The Week in Torts – Cases from the Week of January 8, 2021
There Is A New Summary Judgment Standard In Town
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 1
CASES FROM THE WEEK JANUARY 8, 2021
FLORIDA PREPARES TO ADOPT FEDERAL SUMMARY JUDGMENT STANDARD—COURT ADVISES IT WILL AMEND RULE 1.510 WHICH WILL BE EFFECTIVE IN MAY, 2021
Wilsonart, LLC v. Lopez, 46 Fla. L Weekly S2 (Fla. December 31, 2020):
The estate of the decedent sued the front car driver and driver’s employer, in this fatal rear-end crash. Based on video evidence from the front car’s forward-facing dashboard camera that appeared to completely refute the plaintiff’s version of the events, the trial court granted summary judgment for the defendants.
While the Fifth District had acknowledged that the video evidence showing the front driver’s driving pattern was compelling, and directly contradictory to the plaintiff’s evidence, that court still reversed the summary judgment, believing that notwithstanding the strength of the video evidence, the trial court had improperly weighed competing evidence in granting summary judgment.
The supreme court took jurisdiction of the case to ascertain whether Florida should adopt the federal summary judgment standard adopted by the United States Supreme Court in Celotex (remember law school?!), and if so, whether Florida Rule of Civil Procedure 1.510 should be amended to reflect that change.
Pursuant to the federal summary judgment standard, when the record — taken as a whole — could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The court also noted that when opposing parties tell two different stories, and one of those stories is blatantly contradicted by the record such that no reasonable jury could believe it, a court should not allow the completely untenable version of the facts to defeat a motion for summary judgment. The court explained that it would issue a rule change, as described in the next decision.
AMENDMENT TO RULE 1.510-CHANGES TO SUMMARY JUDGMENT STANDARD
In Re: Amendments to Florida Rule Civil Procedure 1.510, 46 Fla. L Weekly S6 (Fla. December 31, 2020):
Effective May 1, 2021, the amended rule adopts the summary judgment standard articulated by the United States Supreme Court in Celotex. The amendment aligns Florida’s summary judgment standard with that of the federal courts and the majority of states.
The standard still requires a showing that there is no genuine issue as to any material fact, and that moving party is entitled to summary judgment as a matter of law.
Now, though, Florida courts will view motions for summary judgment more like motions for directed verdict (as they are fundamentally similar), and litigants will no longer have to “disprove the nonmovant’s theory of the case in order to eliminate any issue of fact” which the standard now requires.
Federal law allows the moving party to meet its burden for summary judgment by pointing out to the trial court that there is an absence of evidence to support the nonmoving party’s case.
The court also explained that Florida courts have adopted an expansive understanding of what constitutes a “genuine triable issue of material fact,” enabling the existence of any competent evidence—however credible or incredible—to preclude summary judgment as long as the “slightest doubt” is raised.
By contrast, the U.S. Supreme Court has described the federal test as whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” In other words, a party opposing summary judgment must do more than simply show that there is some “metaphysical doubt as to the material facts.”
In adopting the amendment, the Florida Supreme Court did reaffirm the bedrock principle that summary judgment is not a substitute for the trial of disputed fact issues. Always good to remind judges of that!
The court allowed an opportunity for public comments, postponing the effective date of the amendment until May 1, 2021.
A VOLUNTARY DISMISSAL EVEN AFTER THE STATUTE OF LIMITATIONS EXPIRES IS NOT AN “ADJUDICATION ON THE MERITS” AND DOES NOT SUBJECT A LITIGANT TO ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT.
Herrell v. Universal Property and Cas. Ins. Co., 46 Fla. L Weekly D10 (Fla. 2nd DCA December 23, 2020):
The court reiterated that MX Investment, Inc. v. Crawford, 700 So. 2d 640 (Fla.1997) is still the law. Even when the statute of limitations has expired, a voluntary dismissal is still not an adjudication on the merits. As such, a voluntary dismissal with prejudice even subsequent to the expiration of the statute of limitations cannot trigger entitlement to attorneys’ fees pursuant to a proposal.
COURT SHOULD NOT HAVE ENTERED SUMMARY JUDGMENT IN THE FACE OF PLAINTIFF’S AFFIDAVIT EXPLAINING THE DIFFICULTIES IN OBTAINING DEPOSITIONS OF TWO KEY WITNESSES.
Benavides v. Medina, 46 Fla. L Weekly D13 (Fla. 3rd DCA December 23, 2020):
One of the witnesses Plaintiff needed to depose was in jail. The other was studying abroad. As the Plaintiff counsel’s affidavit stated, this made it extremely difficult for him to serve and obtain their depositions.
Based upon the affidavit of plaintiff’s counsel, which accompanied the request to continue the summary judgment hearing, the trial court should have allowed the delay before entering summary judgment.
NO BLANKET RULE THAT A LOSS OF CONSORTIUM CLAIM IS NECESSARILY INEXTRICABLY INTERTWINED WITH THE PRIMARY LIABILITY CLAIM FOR THE PURPOSE OF AWARDING ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT.
Signal Hill Golf Course v. Womack, 46 Fla. L Weekly D42 (Fla. 1st DCA December 30, 2020):
In this slip and fall case, a golfer was significantly injured after teeing off. The jury found that he and the club were both 50% responsible for his injuries. The jury awarded a verdict for the plaintiff but nothing for his wife’s loss of consortium.
Early on in the litigation, the defendant had served a proposal for settlement to the wife. After the jury’s verdict, it moved for all of its attorney’s fees and costs, arguing that its defense of the husband’s negligence claim and its defense of the wife’s loss of consortium claim, were so interrelated that they were “inextricably intertwined.” The defendant asserted entitlement to the fees and costs for both claims.
The trial court rejected that argument. Instead, it awarded fees for the defense for the loss of consortium claim only.
There is no blanket rule that automatically deems a loss of consortium claim as necessarily “inextricably intertwined” with the primary liability claim for the purpose of awarding attorneys’ fees. The prevailing approach is to require the party seeking to recover fees to (a) shoulder the burden of allocating them to the consortium claim, or (b) to show that the issues were so intertwined that the allocation is not feasible.
On the record presented, the trial court properly concluded that the defendant did not meet its burden to demonstrate that the claims were inextricably intertwined, and affirmed the award of fees for the consortium claim only.
SIMPLY BECAUSE ONE ASPECT OF AN ORDER IS APPEALABLE UNDER RULE 9.130, DOES NOT MEAN THAT ANOTHER ISSUE THEREIN IS ALSO APPEALABLE.
Phuong v. Sheriff John Lina, 46 Fla. L Weekly D55 (Fla. 5th DCA December 31, 2020):
The court explained that while it had jurisdiction to review the non-final order finding the defendant immune from suit based on sovereign immunity, this did not mean that the court could also review the non-final order denying his motion to dismiss for failure to state a cause of action. The fact that a trial court’s order contains one ruling that is immediately reviewable does not mean that the separate denial of the motion to dismiss for failure to state a cause of action is also reviewable, because that ruling is not an enumerated order under Rule 9.130.
BECAUSE PLAINTIFF DID NOT ESTABLISH THAT THE ACCIDENT WOULD NOT HAVE OCCURRED IN THE ORDINARY COURSE OF EVENTS WITHOUT NEGLIGENCE, SHE FAILED TO CARRY THE INITIAL BURDEN OF ESTABLISHING THAT RES IPSA LOQUITUR APPLIED, AND IT WAS ERROR TO GIVE A JURY INSTRUCTION.
Orange County v. Whitehead, 46 Fla. L Weekly D59 (Fla. 5th DCA December 31, 2020):
Plaintiff was an attorney meeting a client at the Orange County Jail, and was injured when an interior gate closed on her unexpectedly. She sued the County for premises liability.
At trial, the County argued that neither it, nor the officer who controlled the gate, acted negligently and, instead, the plaintiff tripped a sensor or there was some kind of mechanical malfunction, which caused the gate to close on her.
Plaintiff presented testimony from jail staff, explaining how the jail gates operate and how an officer manually opens a gate when a visitor wishes to enter or exit the jail. There was also testimony related to the sensors on the gates which act as a safety feature, and are meant to stop the gate from closing on someone. Additionally, the corrections officer who operated the gate that injured the plaintiff stated he did not press any button while she was walking through the gate, and if he had done so, the sensors should have stopped the gate from closing.
The plaintiff did not present any evidence explaining whether a malfunction could have caused the gate to close unexpectedly.
The plaintiff requested a res ipsa loquitur instruction in which the trial court gave. The jury returned a verdict in her favor.
The court explained that res ipsa loquitur is a doctrine of extremely limited applicability that provides an injured plaintiff with a common sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. To be entitled to such an instruction, the plaintiff must establish (1) that the instrumentality causing his or her injury was under the exclusive control of the defendant, and (2) that the accident is one that would not in the ordinary course of events, have occurred without negligence on the part of the one in control.
The doctrine requires the plaintiff to bear the initial burden to establish that the circumstances attendant to the injury are such that in the light of past experience, negligence is the probable cause, and the defendant is the probable actor.
Res ipsa loquitur often applies when complex mechanical devices fail. In this case, the plaintiff was required to establish that negligence by Orange County was the probable cause of her injuries. Although she offered some evidence on how the gate intended to operate, she presented no expert testimony regarding how the gate actually worked at the time of the accident, whether a malfunction could have caused it to close unexpectedly in the absence of negligence, or whether the County negligently maintained the gate.
It is possible that a mechanical gate could malfunction for reasons other than the negligence of the party that controls the gate, and while the plaintiff offered some evidence that the officer who operated the gate acted negligently, she did not present any evidence that the accident was not the result of a mechanical failure unrelated to the County’s negligence.
Because the plaintiff did not establish that the accident would not occur in the ordinary course of events without negligence, she failed to carry the initial burden of establishing that res ipsa loquitur applied, rendering the giving of the jury instruction erroneous.