La Cava & Jacobson, P.A.

Florida Law Weekly – January 23, 2015

/in

Schwartz v. Wal-Mart, (5th DCA) – In this case, the Court of Appeal reversed the Trial Court’s Order granting a Motion for a New Trial on damages in a case involving an incident were the Plaintiff was struck in the back by an ornamental pumpkin while shopping at Wal-Mart. As a result of the incident, she sustained injuries and sought immediate medical attention. While Wal-Mart admitted that the incident occurred, it contested that the incident cause the injuries. In support of this defense, Wal-Mart presented the testimony of a Biomedical Engineer who opined that the degree of force exerted when the pumpkin struck the Plaintiff was well below the injury producing threshold.

After the jury returned a verdict of no damages, the Plaintiff filed a motion for a new trial, citing the general rule that in instances where a jury finds that a Plaintiff was not injured, the Plaintiff is still entitled to recover any expenses for medical examinations and diagnostic testing that was reasonably necessary to determine whether the incident caused her injuries. The Court agreed with this general principal, but noted that one exception occurred where the jury was presented with conflicting medical opinions with respect to causation. In light of the fact that Wal-Mart presented expert testimony that conflicted with the Plaintiff’s case on this issue, the Appellate Court found that the jury was entitled to award zero damages, and that the Plaintiff was not entitled to a new trial.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 16, 2015

/in

Hankerson vs. Wiley, (4th DCA) – In this case, the Hankerson Court held that the Trial Court was committed error when it allowed the Plaintiff to view a post-accident surveillance video of an auto accident before her deposition. The Hankerson Court relied on the Florida Supreme Court’ decision in Dodson v. Persell, 390 So.2d 704 (Fla. 1980), for the proposition that fairness requires that a defendant be permitted to depose a plaintiff before turning over a surveillance video. In rendering its opinion, the Hankerson Court created a bright line rule to be imposed uniformly in these situations. Specifically, the defendant possesses a surveillance video in a personal injury case, the defendant will be entitled to depose the plaintiff prior to producing the video.

Hall v. West And Shephard’s Beach Resort, (2d DCA) – In this case, the Hall Court was asked to review the Trial Court’s ruling that the Resort owed no duty of care to the Plaintiff in an automobile negligence claim. The Plaintiff suffered injuries when he was struck by a car driven by Mr. West, who had visited the Resort prior to the accident and drank alcoholic beverages. The Resort’s security personnel asked Mr. West to leave the premises and two hours later, his vehicle collided with the Plaintiff’s vehicle.

Mr. Hall attempted to hold the Resort liable for allowing a drunk patron to leave the premises. Based upon the Florida statute 768.125 (2008), the Trial Court found no duty was owed by the Resort. That statute provides that a resort can be liable if it furnishes alcohol to a person who is not of lawful drinking age or knowingly serves a person habitually addictive to the use of alcohol and beverages. As the record did not demonstrate that Mr. West was an underage drinker or habitually addicted to alcohol, the Trial Court found that no duty existed. The Hall Court rejected the Plaintiff’s argument that the Resort was negligent in allowing Mr. West to drive way while intoxicated. Recognizing that the Florida Legislature has set the boundaries of when an establishment owes a duty to the general public when a party is intoxicated, the Hall Court found that the Trial Court properly dismissed the claim.

Nucci v. Target Corp., (4th DCA)- In this premises liability case, the Nucci Court held that the Trial Court did not commit error in compelling the Plaintiff to provide photographs she posted on Facebook. Prior to conducting the Plaintiff’s deposition, Defense counsel viewed her Facebook profile and saw that it contained over 1,000 photographs. After the deposition, Defense counsel noted that some of those photographs had been deleted. Defendant moved to compel inspection of the Plaintiff’s Facebook profile, arguing that because the Plaintiff put her physical and mental condition at issue in the lawsuit, the information was discoverable. The Plaintiff responded that her intent was for her Facebook page to be private, and providing Target with access would invade that privacy right. The Trial Court ordered the Plaintiff to provide the names of all social media websites she was registered with and further required her to provide copies of all photographs posted on any social media website for two years prior to and after the date of loss.

On appeal, the Plaintiff argued that the Trial Court ruled incorrectly because the Defendant was relying on the mere hope of obtaining discoverable evidence from the social media outlets. She further argued that the information and the photographs were not relevant to her claims. The Nucci Court affirmed the Trial Court’s ruling and in doing so, held that photographs posted on social media sites are not privileged, nor or they protected by any right of privacy regardless of the privacy setting that the user may have established. The Nucci Court also held that by creating a Facebook account, a user acknowledges that her personal information would be shared with others.

Salazar v. Coello, M.D, (3d DCA) – In this medical malpractice case, the Salazar Court addressed the issue of whether the 90 day tolling of the statute of limitations applied only to the party who received the notice of intent, or whether it was applicable to all other likely defendants. The Salazar Court opined that based on its interpretation of the statutory language, the tolling of the statute of limitation as to all potential defendants was mandated and did not apply only to the party named in the original notice of intent.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 9, 2015

/in

Phillips v. Republic Financial Corporation, (5th DCA) – In this premises liability case, the Plaintiffs alleged that while performing repairs to the roof of a building, the Plaintiff fell through a skylight that was painted over, sustaining severe injuries. The Plaintiffs filed their lawsuit against the entity that owned the property and building, as well as various entities that leased the property and building. In affirming summary judgment for some of the Defendants, the Court noted that liability in a premises liability case does not depend on ownership, but rather, is predicated on the negligence of the possessor of the premises. As it is the possessor of the property who controls whether persons can come onto the property, the duty to warn of a dangerous condition on that property lies with the possessor.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 2, 2015

/in

Duong v. Ziadie, (4th DCA) – In this medical malpractice case, the Court addressed the adequacy of a proposal for settlement in a medical malpractice wrongful death claim that was brought by the Plaintiff acting in her capacity as guardian of her adult son who was rendered incapacitated. Plaintiff sought damages for her son’s pain and suffering as well as for the damages suffered by the son’s two minor children. The claims were brought against the son’s physician, the physician’s employer and other Defendants. A proposal for settlement was made to the physician only in the amount of $1,000,000 on behalf of the guardian and the two minor children, dividing the amounts to be paid to each.

The proposal was not accepted and the jury returned a verdict well in access of the proposal for settlement. The Plaintiff moved for attorney’s fees and the physician argued that the proposal itself was ambiguous. Specifically, the physician argued that an offer requiring acceptance of all three Plaintiffs’ claims deprived him of the ability to evaluate each claim individually as required by the Florida Rules of Civil Procedure. The Trial Court granted the motion, concluding that the offer was not ambiguous. The Duong Court agreed, opining that in this context, the “all or nothing” proposal was appropriate. The Duong Court specifically found that because the proposal broke down what part of the million dollar settlement would be paid to each of the claimants, the physician could evaluate each claim separately and determine both the reasonableness of the offer and the likelihood that the Plaintiffs would obtain, as to each claim, a verdict that would result in the enforcement of the proposal. The The Duong Court also held that there is no obligation each individual Plaintiff or claimant to make individual offers to the physician because imposing such a requirement could result in the settlement of the main claim and not the consortium claims.

Paduru v. Klinkenberg, (1st DCA)- This case involved an automobile accident with claims brought by the Plaintiff against the driver and owner of the at-fault vehicle. The Plaintiff filed a proposal for settlement naming the driver only, which provided that the Plaintiff would dismiss the case against both Defendants after the proposed amount was paid by the owner and/or his insurer. No proposal was specifically made to the owner of the at fault vehicle. The proposal was not responded to and following trial, the jury returned a verdict for the Plaintiff in an amount well above the amount offered in the proposal for settlement. Plaintiff then moved for an award of attorney’s fees and costs and in response, the driver argued that the proposal was invalid because it was unclear as to who would be released from liability and which claims would be dismissed upon payment. Additionally, the driver argued that the proposal contained a settlement condition over which she had no control.

While the Trial Court found the proposal to be valid, the Paduru Court disagreed. In doing so, the Paduru Court referred to Attorney’s Title Insurance Fund v. Gorka, 36 So.3d 646 (Fla. 2010), where the Florida Supreme Court held that a proposal for settlement must be structured in such a way so that the party to whom the offer was made can independently evaluate and settle his/her respective claim irrespective of another party’s decision. In doing so, the Paduru Court held that the proposal filed by the Plaintiff was invalid because it was predicated upon payment of the settlement by someone other than the party to whom the proposal was directed.