Case Law

La Cava & Jacobson, P.A.

Florida Law Weekly March 15, 2015

Millard Mall Services Inc. vs. Bolda (4th DCA)

In this case, the Court addressed the issue of whether incident reports and other documents prepared following a slip and fall incident were subject to discovery. The plaintiff argued that she could overcome the work product privilege asserted by the defendant. Specifically, the plaintiff sought all records and incident reports regarding her incident as well as any other substantially similar acts or occurrences on the defendant’s property within the past three years, any and all documents concerning maintenance or cleaning of the subject premises at the time of the incident and documentation regarding maintenance of the premises by outside companies. In objecting on the basis of work product, the defendant submitted affidavits stating that the documents (which included quarterly safety committee reports) were not discoverable because they included photographs, notes of discussions surrounding the incidents and mental impressions. The trial court ordered the production of documents. The Fourth District Court of Appeal quashed that Order.

Conducting an analysis with respect to when work product materials may be produced, the Court noted that Florida Rules of Civil Procedure 1.280(b)(4) provides that any party may obtain work product materials prepared in anticipation of litigation only upon a showing that the party seeking the discovery has the need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the material by other means. The Court noted that pursuant to the Florida Rules of Civil Procedure, the party seeking the discovery must show that documentation sought contains relevant information. Only when the showing can be made will the Court order the documents to be turned over. The rationale behind the work product doctrine was noted to be that one party should not be entitled to prepare his case with the investigative work product of his adversary where the same or similar information is available through ordinary discovery procedures. Additionally, the Court noted that work product protections extend to information gathered in anticipation of litigation by corporate non-attorney employees. Importantly, the Court noted that even where a report is routinely prepared it may still qualify as work product. Ultimately, the Court found that because the plaintiff had been permitted to use the ordinary tools of discovery to obtain the information she needed, she was not entitled to the defendant’s documents.

La Cava & Jacobson, P.A.

Florida Law Weekly March 1, 2015

Harold vs Sanders (2d DCA): In this case, the Court addressed the issue of the timeliness of a request for a trial de novo following nonbinding arbitration. Factually, the Court noted that the arbitration was completed and thereafter, the Final Judgment was mailed to the parties in conformance with the arbitrators decisions. The Final Judgment noted that no party filed a request for trial de novo within 20 days of service of the arbitration decision. On the day the Trial Court entered its Final Judgment, an objection the arbitration decisions was filed and the demand for trial de novo was made. The Second District found that Florida Rule of Civil Procedure 1.090(e), extends the time for a party to request a trial de novo by five days when a Court Order regarding a nonbinding arbitration decision is served by mail. Because of the service by U.S. Mail, the plaintiff was permitted to a trial de novo as the request was made within the additional five days.

Russell Post Properties Inc. vs Leaders Bank (3d DCA): In this case, the trial court denied a request for attorneys’ fees pursuant to a rejected proposal for settlement which noted that if accepted, the plaintiff shall dismiss with prejudice any and all claims it may have against the defendant and shall execute a general release in favor of the defendant. Notably, the release was not attached to the proposal. Following trial, the plaintiff received an award that was much less than the amount offered in the proposal for settlement, prompting the defendant to seek attorneys’ fees and costs. As no release was attached to the proposal, the Trial Court found that an ambiguity existed regarding the proposal.

The Appellate Court held otherwise. It noted that pursuant to the Florida Supreme Court’s opinion in State Farm Mutual Auto Insurance Company vs Nichols, 932 So.2d 067 (Fla. 2006), the Florida Rules of Civil Procedure did not require that a release of all claims be attached to a proposal for settlement if the terms of the proposal itself provided a summary of the terms of the release. To satisfy this requirement, the proposed release must eliminate any reasonable ambiguity regarding its scope. In the case before it, the Appellate Court found that the proposal for settlement satisfied these requirements.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 23, 2015

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

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

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.