Case Law

La Cava & Jacobson, P.A.

Florida Law Weekly – April 5, 2019

Tabraue v. Dostors Hospital – 3rd DCA
In this wrongful death case, the Court held that there was no non-delegable duty existed in the context of a hospital providing non-negligent emergency care to patients via common law, statutes, express contracts or implied contracts. In rejecting the argument that a patient’s admission to an emergency room creates an implied contractual relationship with the hospital, the Court disagreed with contradictory holdings of the 4th District Court of Appeal and certified conflict.

Sentz and Geico v. Tracy – 5th DCA
In this case, the plaintiff was awarded attorneys fees and costs as a result of the defendants’ denial of requests for admissions. The requests sought an admission that the defendants acted negligently. The 5th District reversed, holding that requests for admissions that go to ultimate issues are improper.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 29, 2019

Cruz v. Wal-Mart – 4th DCA
In this premises liability case, the Court reversed the Trial Court’s Order granting summary judgment in favor of Wal-Mart. The plaintiff, a 72-year-old man, tripped on a raised manhole cover and fell in a Wal-Mart parking lot at night, sustaining serious head trauma. .In doing so, the Court rejected the theories that there was no liability because: 1) the manhole was inspected and approved by government agencies; 2) the accident was not foreseeable because there were no prior similar events; and 3) the manhole was an open and obvious danger, negating any duty to warn. Ultimately, the Court found that issues of fact remained precluding summary judgment.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 15, 2019

Bellezza v. Menendez – 4th DCA
In this case, the 4th District Court of Appeal remanded a matter for new trial, finding that the attorney/client privilege prohibited the disclosure of the relationship between a plaintiff’s attorney and the plaintiff’s treating physician. In remanding the matter for new trial, the Court applied the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228, So.3d 19 (Fla. 2017), which held that a lawyer’s payments to a plaintiff’s treating physician was not discoverable, and further recognized that the attorney/client privilege protects whether the plaintiff’s lawyer referred the plaintiff to a particular physician.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 8, 2019

Kempton v. McComb. – 5th DCA
This case addresses Florida Statute §768.36, which creates an alcohol or drug defense. This defense completely bars a plaintiff’s recovery if, at the time the plaintiff was injured, the plaintiff was under the influence of alcohol or drugs such that his/her normal faculties are impaired and if, as a result of the influence, the plaintiff is greater than 50% at fault for his/her own harm. In this case, while the jury found that the plaintiff was more than 50% at fault and that his blood alcohol was above the legal limit, because the jury did not find that the plaintiff’s fault was due to the intoxication, the defense was not applicable.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 1, 2019

Breger v. Robshaw Custom Homes, Inc. – 5th DCA
The Fifth District reversed a Trial Court Order enforcing a settlement and dismissing the complaint with prejudice.  Plaintiffs owned certain real property as joint tenants with the right of survivorship.  The Defendant entered into a contract with the Appellants to improve the property.  After completion, the Plaintiffs were not satisfied with the quality of the work, filing a lawsuit for breach of contract and negligence.   Plaintiffs each filed individual proposals for settlement, with the Defendants accepting one of them.  The Defendant believed that acceptance of one would end the lawsuit.  The Trial Court agreed, stating that the claims were “undifferentiated” and that settlement as to one Plaintiff was binding as to all.  The Fifth District disagreed, noting that acceptance must be a mirror image of the offer.   The Fifth District noted that the acceptance was not (as it included the other Plaintiffs) and further found that one Plaintiff could not bind the others to a settlement.

Younkin v. Blackwelder – 5th DCA 2019
In this case, the Fifth District held that a plaintiff was entitled to know the total number of times a defense firm has retained an expert to perform a Compulsory Medical Examination as well as the amounts paid to that physician.  The Court based this decision on Allstate Ins. Co. v. Boecher, where the Florida Supreme Court held that similar information with respect to an insurer’s relationship with an expert was discoverable.  The Fifth District also certified conflict with the Florida Supreme Court’s decision in Worley v. Central Florida YMCA, which held that the attorney-client privilege prohibited a defendant from obtaining discovery from a Plaintiff’s law firm regarding the number of times it referred clients to a particular physician.  As the Younkin Court noted, a plaintiff’s firm can refer all of its clients to the same physician and this information is not discoverable, yet the same protections are not afforded to Defendants.