Tips for Auto Practitioners // by Dale Swope
Featured from the FJA Journal, Issue #583, March/April 2015

Supreme Court sides with the Fifth DCA, which was in conflict with the other four districts, and holds that “the absence of the terms ‘negligence’ or ‘negligent acts’ in an exculpatory clause does not render the agreement per se ineffective to bar a negligence action. Sanislo v. Give the Kids the World, Inc.,     So.3d    , 40 FLW S79 (Fla. 2-12-2015). The action arose as a result of an injury suffered by a child at a resort run by the defendant, which is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families. The parents signed a release in conjunction with their initial application and signed another when they arrived at the resort; the release forms contained broad exculpatory language, but did not specifically refer to negligence or negligent acts by the resort. Suit was filed, the defendant’s motion for summary judgment based on the release was denied, and a jury verdict was returned for the plaintiff. On appeal, the Fifth DCA, reasoning that exculpatory clauses are effective if the wording of the clause is clear and understandable so that an ordinary and knowledgeable person would know what he or she is contracting away, reversed the denial of the defendant’s motion for summary judgment, holding that the exculpatory clause releasing the defendant from liability for “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us” barred the negligence action despite the lack of a specific reference to “negligence” or “negligent acts” in the exculpatory clause. It also certified direct conflict with decisions of the other four DCAs. 

The Supreme Court (Justices Lewis, Pariente and Quince dissenting) agreed with the Fifth DCA. It found that the language of the agreement in question clearly conveyed that the defendant would be released from any liability, including negligence, and noted that, in fact: “it is unclear what this agreement would cover if not the negligence of [the defendant].”  The Court did, however, stress that, despite its conclusion: “[O]ur holding is not intended to render general language in a release of liability per se effective to bar negligence actions. … [E]xculpatory contracts are, by public policy, disfavored in the law because they relieve on party of the obligation to use due care. … Further, exculpatory clauses are only unambiguous and enforceable where the language unambiguously demonstrates a clear and understandable intention to be relieved from liability so that an ordinary and knowledgeable person will know what he or she is contracting away.”  The Court disapproved the conflicting decisions in Levine v. A Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2nd DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So.2d 155 (Fla. 3rd DCA 1980). The FJA, represented by Bard D. Rockenbach, participated as Amicus.

Florida law imposes no general duty on a business owner to ensure the safety of an intoxicated person who is about to leave the premises, and the business has no legal duty to control the conduct of a third person to prevent that person from harming others. Hall v. West,     So.3d  . 40 FLW D122 (Fla. 2nd DCA 1-7-2015). The plaintiff suffered serious injuries after having been struck by a speeding car driven by a patron who left the defendant’s beach club in an intoxicated state. Security personnel at the beach club had told the intoxicated patron to leave the premises and had escorted him and his friends to their car. The subsequent collision occurred two hours later and thirteen miles away. The court held that §768.125, Fla. Stat., which provides dram shop immunity, barred the plaintiff’s recovery as the patron was of lawful drinking age and there was no evidence to suggest that the beach club personnel knew whether he was habitually addicted to alcohol. The court also rejected the plaintiff’s argument that an exception to the statute had been created by Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994), concluding that not only was the scope of the club’s potential liability controlled by the statute, the facts of the case were distinguishable from those in Bardy.

Although a default admits all well-pleaded allegations of a complaint, including the entitlement to liquidated damages, a default does not automatically entitle a plaintiff to unliquidated damages; unliquidated damages cannot be awarded without an evidentiary hearing. Paramo v. Floyd,     So.3d    , 40 FLW D127 (Fla. 2nd DCA 1-7-2015). The court noted that claiming estimated damages as what plaintiff’s perceived to be a liquidated amount does not make it so.

Where plaintiff was shot in the leg while attending a party at an apartment complex, her suit against the apartment owner, despite being couched in terms of ordinary negligence, was in fact founded on principles of premises liability, and thus the trial court did not err in allowing the jury to consider her status as a trespasser on the property. Nicholson v. Soneybrook Apartments, LLC,     So.3d    , 40 FLW D159 (Fla. 4th DCA 1-7-2015). The plaintiff alleged in her suit for negligence that the apartment had failed to maintain the premises in a safe condition and provide adequate security. The defendant alleged that its duties to the plaintiff were very limited as she was a trespasser at the time she was shot. The plaintiff moved to exclude any evidence regarding her status as a trespasser, arguing that her status on the land was not relevant because her lawsuit was founded in ordinary negligence, not premises liability. The trial court disagreed, and a defense verdict ultimately ensued. In affirming, the Fourth DCA explained that in an ordinary negligence case the defendant owes the plaintiff a duty of reasonable care, regardless of the relationship between the plaintiff and the defendant. However, “in premises liability cases, the defendant’s duty is dependent on the plaintiff’s status to the land.”  Section 768.075, Fla. Stat., defines the scope of liability in such actions. “Put succinctly, in a premises liability case, the only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, and the only duty it owes to a discovered or ‘known’ trespasser is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observable by others.”  Noting that “[n]o Florida court has considered whether negligent security cases are governed under standards of premises liability or ordinary negligence,” it concluded that premises liability standards apply. “Ordinary negligence involves active negligence—meaning the tort-feasor actually does something to harm the injured party, whereas premises liability involves passive negligence—meaning the tort-feasor’s failure to do something to its property resulted in harm to the injured party. … As negligent security actions concern the landowner’s failure to keep the premises safe and secure from foreseeable criminal activity, it follows that they fall under the umbrella of premises liability as opposed to ordinary negligence.”  The court pointed out that had the plaintiff been shot one block away from the apartment complex there would have been no basis for the suit—further illustrating that it was a premises liability suit because her theory of liability was totally dependent upon her being shot on the premises.

In a premises liability action based on a slip and fall, the trial court did not depart from the essential requirements of law in issuing an order to compel production of photographs from plaintiff’s Facebook account where the photographs were reasonably calculated to lead to the discovery of admissible evidence relevant to the plaintiff’ post-injury physical and mental condition and plaintiff’s privacy interest in the photographs was at most minimal. Nucci v. Target Corp.,    So.3d    , 40 FLW D166 (Fla. 4th DCA 1-7-2015). 

The trial court erred in issuing an order in a personal injury action allowing the plaintiff to view a post-accident surveillance video before the defendant had an opportunity to depose her. Hankerson v. Wiley,     So.3d    , 40 FLW D195 (Fla. 4th DCA 1-7-2015). Certiorari was granted.

The standard for determining “evident partiality” by an arbitrator under §682.12(1)(b), Fla. Stat., is whether there was a “reasonable impression of partiality.”  Jomar Properties, LLC v. Accredited Surety and Casualty Co., Inc.,     So.3d    , 40 FLW D206 (Fla. 4th DCA 1-14-2015). Here, the court found that during the proceedings the arbitrator was trying to understand the parties’ positions and asked several questions in that regard, thus “his remarks were an allowable comment on the evidence and/or sought clarification of a party’s position” and did not constitute giving “tips” to one side.

Although the general rule is that even when a jury finds that a plaintiff was not injured as a result of an accident the plaintiff is still entitled to recover expenses incurred for medical examination and testing reasonably necessary to determine whether the incident caused injuries, there are exceptions to this rule. Schwartz v. Wal-Mart Stores, Inc.,     So.3d    , 40 FLW D215 (Fla. 5th DCA 1-16-2015). Plaintiff sued the defendant store after being struck in the back by a “squishy” 8.4-ounce ornamental pumpkin that apparently fell off a shelf. After a three-week trial, the jury returned a zero-damages verdict, and the trial court granted the plaintiff’s motion for a new trial solely as to the issue of damages for the expenses of the initial medical evaluation sought by the plaintiff after the accident. The plaintiff appealed, contending the retrial on damages should not be so limited, and the defendant cross-appealed, arguing that the trial court erred in granting a new trial. The Fifth District reversed the order granting a new trial and remanded for entry of a final judgment for the defendant. It noted that an exception to the rule about recovery of expenses for diagnostic testing allows a zero-verdict when sufficient evidence is presented regarding factors such as preexisting injuries with extensive treatments, lack of candor with the treating physicians, video showing actual physical capabilities, and expert medical opinions which conflict as to causation. Here, the court found, the defendant presented expert testimony from a biomedical engineer that sufficiently supported the conclusion that the impact could not have caused any injury to the plaintiff. 

The Supreme Court amended the Code for Resolving Professionalism Complaints to provide that members of the Local Professionalism Panels, staff persons assisting those panels, members of the Circuit Committees on Professionalism, and staff persons assisting those committees have absolute immunity from civil liability for all acts in the course and scope of their official duties. In re: Amendment to the Code for Resolving Professionalism Complaints,     So.3d    , 40 FLW S56 (Fla. 1-29-2015). 

In an action to execute on a domesticated foreign judgment, the trial court departed from the essential requirements of law in ordering the judgment debtor, over a Fifth Amendment privilege objection, to respond to questions regarding whether or not he filed tax returns for a span of years. Appel v. Bard,     So.3d    , 40 FLW D238 (Fla. 4th DCA 1-21-2015). The court held that the debtor had shown a reasonable probability that the information might be used against him in a prosecution for failure to file and pay his taxes.

A court registry fee is a taxable cost under the “other costs permitted by law” pursuant to Fla.R.App.P. 9.400(a)(4). Miccosukee Tribe of Indians of South Fla. v. Bermudez,     So.3d    , 40 FLW D261 (Fla. 3rd DCA 1-21-2015); on motion to review order taxing costs. The court reasoned that this is so “because depositing the cash with the clerk is one option to post a good and sufficient bond specifically provided by rule 9.310(c)(1) and the fee amount set by the Legislature is a reasonable expense paid by a party to furnish security under section 57.071(1)(a). We are unable to discern any reason why the Florida Rules of Appellate Procedure would provide two methods for posting bond, yet allow recovery of only the costs of paying the fee charged by a private surety, but not the statutorily-required fee charged by the clerk.”

In a nursing home case, the trial court erred in granting a motion to compel arbitration where in response to a discovery request to produce a complete copy of the documents signed by the resident, the nursing home produced only the signature page of the original seven-page arbitration agreement. Davis v. Hearthstone Senior Communities, Inc.,     So.3d    , 40 FLW D268 (Fla. 2nd DCA 1-23-2015). A former nursing home employee who supervised the admissions process testified that the resident signed the last page of the document but that the home’s standard practice was to only retain the signature page. However, when presented with a copy of the first six pages of the agreement purportedly used at the time of admission, the witness could not verify its terms or that it was the standard form in use at the time of the resident’s admission. Based on this, the trial court sustained the plaintiff’s objection to admission of the six pages, but it went on to grant the motion to compel arbitration, stating that it was satisfied that the nursing home could show the complete terms of the arbitration agreement. In reversing, the Second DCA found that the trial court improperly ordered arbitration as without the complete document, the nursing home was unable to meet its burden to show that there was a valid written agreement to arbitrate.

In response to a question certified by the Second DCA, the Supreme Court holds that “a facially valid return of service is not required to expressly list the factors defining the ‘manner of service’ contained in section 48.031(1)(a), Florida Statutes (2009), which are not included in the requirements of section 48.21, Florida Statutes (2009), defining valid return of service.”  Koster v. Sullivan,     So.3d    , 39 FLW S63 (Fla. 2-5-2015). Section 48.21 governs the execution of process, and §48.031(1)(a) governs service of process generally. The former statute specifically requires certain information to be included in a return of service; the latter sets forth specifics regarding the manner of service, but does not require information regarding same to be included in the return. The Court found the statutes in question to be a clear expression of policy by the legislature, and it declined to read into them a requirement that is not there. The Court approved the decision in Koster v. Sullivan, 103 So.3d 882 (Fla. 2nd DCA 2012).

Video footage from a video-surveillance security system installed on public buses using, in part, grant money obtained from the U.S. Department of Homeland Security is confidential and exempt from public records requests. Central Fla. Regional Transportation Authority, v. Post-Newsweek Stations, Orlando, Inc.,     So.3d    , 40 FLW D306 (Fla. 5th DCA 1-30-2015). A local TV station had filed a public records request seeking to inspect video footage captured by cameras on the local bus system. The bus system denied the request on the grounds that the videos fell within the exemptions for security systems. The TV station filed suit, and the trial court held that the videos did not fall within the exemption, essentially finding that the videos of events that happened on the buses did not relate directly to or reveal the security system. The Fifth DCA reversed, holding that when read together §§119.071(3)(a) and 281.301, Fla. Stat., make confidential and exempt from disclosure all records relating to or revealing information about a security system. Here, the court found, “[t]he videos, which are records, reveal the capabilities—and as a corollary, the vulnerabilities—of the current system.”

In a premises liability case arising from the murder of two apartment complex residents in their apartment by unknown assailants, the Supreme Court held that, despite any evidence of forced entry, a history of crimes at the complex, an inoperable security gate and the failure to have a courtesy officer visible raised a reasonable inference that the landlord’s breach may have contributed to the death, thus presenting a question of fact for the jury. Sanders v. ERP Operating Limited Partnership,     So.3d    , 40 FLW S85 (Fla. 2-12-2015). The Court held that the evidence presented could support a finding that the defendant more likely than not substantially contributed to the deaths, and it quashed the Fourth DCA’s decision granting a directed verdict for the defendant based on the lack of forced entry.

“[A] pharmacist’s duty to use due and proper care in filling a prescription extends beyond simply following the prescribing physician’s directions.”  Oleckna v. Daytona Discount Pharmacy,     So.3d    , 40 FLW D370 (Fla. 5th DCA 2-6-2015). The decedent in this wrongful death action died of combined drug interaction of Alprazolam and Hydrocodone. It was alleged that the decedent’s doctor repeatedly prescribed these drugs before the decedent should have depleted the preceding prescriptions and that the pharmacy filled at least thirty of these prescriptions without question even though the prescriptions were issued too closely in time and days before the decedent should have exhausted the preceding prescriptions. Suit was filed against the pharmacy alleging that it owed the decedent a duty to “(1) use due and proper care in filling and dispensing all prescriptions; (2) exercise the level of care and skill recognized by reasonably prudent and similar pharmacy professionals; (3) not dispense or fill prescriptions that were unreasonable on their face or in light of the circumstances; (4) warn, under the circumstances; (5) comply with their own relevant policies and procedures; (6) comply with relevant statutory and regulatory provisions; and (7) not subject [the decedent] to an unreasonable risk of harm from their foreseeable conduct.”  The pharmacy filed a motion to dismiss, arguing that there was no duty to the decedent other than properly filling his valid and lawful prescriptions. The trial court granted the motion to dismiss with prejudice. The Fifth DCA reversed, noting that “the prescriptions at issue here are alleged to be unreasonable on their face because they were written in a quantity, frequency, dosage, or combination that a reasonable pharmacist would either have checked with the prescribing doctor or warned the patient.”  It held that that the duty of a pharmacist to use reasonable care is not limited to merely properly filling the prescription: “We refuse to interpret a pharmacist’s duty to use ‘due and proper care in filling the prescription’ as being satisfied by ‘robotic compliance’ with the instructions of the prescribing physician.”  It was therefore improper for the trial court to hold that as a matter of law the pharmacy was not negligent in filling the prescriptions.

An attorney was assessed appellate attorney’s fees under §57.105(1)(b), Fla. Stat., for a frivolous appeal of a trial court order imposing sanctions for fraud on the court. Faddis v. The City of Homestead,     So.3d    , 40 FLW D407 (Fla. 3rd DCA 2-11-2015); on order to show cause. The attorney was ordered to compensate the City, seven present or former members of the city council, and a private investigation firm for their appellate fees and costs. “According to [the attorney], the trial court sanction—and probably, now this one as well—are part of some political scheme to silence him and his client. [He] is grossly mistaken. This case is not about political connection, human atrocities, bullies, or, as he would have it, the ability of ‘strong minded individuals’ to stand up for the powerless. This case is about an officer of the court who proffered false evidence in violation of the Rules Regulating the Florida Bar. … It is now probably also about an attorney who has impugned the qualifications and integrity of the judges of this court, the trial court, and other officers.”

An order granting a motion for sanctions under §57.105, Fla. Stat., was reversed where the court found that the claim was presented “as a good faith argument for the establishment of new law, with a reasonable expectation of success.”  McCullough v. Kubiak,     So.3d    , 40 FLW D457 (Fla. 4th DCA 2-18-2015). The underlying case involved an action for, among other things, defamation, which was ultimately held to be barred by the absolute privilege that extends to statements published in the course of judicial proceedings. On appeal, however, the Fourth DCA concluded that the sanction was not warranted because only one month after the plaintiffs filed their action, the Supreme Court issued a decision which ultimately established new law by recognizing a “narrow scenario” to which the absolute litigation privilege does not apply. “We view the plaintiffs’ action here as merely another case in which allegedly defamed parties sought to establish a “narrow scenario” to which the absolute privilege did not apply.”

Under §682.02(2) of the Florida Arbitration Code as revised in 2013, a court decides the gateway issues of whether an agreement to arbitrate exists or a controversy is subject to arbitration; an arbitrator decides the satisfaction of conditions precedent to arbitrability and whether an arbitration agreement is enforceable; and, if a party to a judicial proceeding challenges the existence of, or claims that, a controversy is not subject to arbitration, a pending arbitration may proceed to pending final resolution of the issue by the court, unless the court orders otherwise. Sherwood v. Slazinski,     So.3d    , 40 FLW D487 (Fla. 2nd DCA 2-20-2015). Here, the court found that the trial court had properly addressed the scope of the arbitration clauses at issue.

A motion to disqualify a judge was properly dismissed where the movant’s complaints concerned the judge’s adverse ruling on a motion for directed verdict. Kazran v. Buchanan,     So.3d    , 40 FLW D488 (Fla. 2nd DCA 2-20-2015). Adverse rulings do not constitute a legally sufficient ground for a motion to disqualify.

An action arising from an attack and sexual assault on an employee by an unknown assailant while she was staying in an employer-provided dormitory room away from her place of work did not fall within the scope of the arbitration provision in her employment agreement. Club Mediterranee, S.A. v. Fitzpatrick,     So.3d    , 40 FLW D500 (Fla. 3rd DCA 2-25-2015). The arbitration clause in the employment agreement required arbitration of “any claim or controversy arising out of your employment, including but not limited to, any breach of contract claim, tort claim (including negligence and intentional wrongs), discrimination claim, harassment claim and employee benefit claim.”  In affirming the trial court’s denial of the defendant’s motion to compel arbitration, the Third DCA found that the claim had nothing to do with the plaintiff’s employment because the attack did not occur during her working hours, or at or near her workplace. “The fact that it would not have arisen but for the existence of her employment agreement is insufficient by itself to transform a dispute into one ‘arising out of’ her employment with [the defendant]. … To ‘arise out of’ an agreement to arbitrate, a claim must have ‘a direct relationship to a contract’s terms and provisions’ or ‘relate to’ the subject contract.” The court found that factual allegations of the complaint did not rely in any respect on the employment agreement and there was no nexus between the terms and provisions of the agreement and the assault on the plaintiff.

A county’s delay in responding to a public records request did not warrant an award of attorney’s fees where the plaintiff made a request for the work email addresses of all county employees in a suspicious-looking email that could not be easily verified, directed the emailed request to a general email account that might not be checked by the person having anything to do with the records at issue, waited four months without saying anything and then sued the county, claiming a right to attorney’s fees. Consumer Rights, LLC v. Union County,     So.3d    , 40 FLW D533 (Fla. 1st DCA 2-26-2015). The court noted that the county provided the records to the plaintiff soon after it learned that the request had been made by a person on behalf of a Florida corporation that did, in fact, exist. It concluded that the trial court properly found that the county acted in good faith and was justified in declining to immediately respond to the plaintiff’s request: “The request was made by an unnamed agent for an undisclosed company and it was sent to the county from an email address that did not appear to be the address of a person. This would lead anyone familiar with the perils of email communication to exercise caution, if not to disregard the communication entirely.”

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