10 March

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Owner Jointly and Severally Liable for Nondelegable Duty

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff--a guest of a condominium unit owner--sued the association and the association’s dock contractor after she injured herself on an unfinished dock. The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages. The appellate court agreed because the association...

16 June

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Value of Severability Clause

Posted by David Adelstein

in Trial Perspectives

Severability clauses have become fairly commonplace in contracts. Cut and paste provisions. However, these clauses can provide tremendous value. A sample of a severability clause is as follows: If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. There are numerous ways to draft...

22 June

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Nondelegable Duty Doctrine

Posted by David Adelstein

in Trial Perspectives

The recent Fourth District Court of Appeal decision, Publix Super Markets, Inc. v. Safonte, 49 Fla.L.Weekly D1337a (Fla. 4thDCA 2024), discussed what is known as the nondelegable duty doctrine: A business establishment owes a non-delegable duty to an invitee “to maintain the premises in a safe condition.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 431 (Fla. 4th DCA 2014). “[A] breach of [this] duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.” Id. Thus, a business establishment...

09 June

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Unit Owner vs. Association Dispute Regarding “Duty to Repair”

Posted by David Adelstein

in Trial Perspectives

If you live in a community governed by an association – whether it is a condominium association or homeowner’s association – you may find yourself at odds with the association over certain issues. Or the association may find itself at odds with you over positions you want to take. This seemed by the dynamics of a recent appeal dealing with the duty to repair damage. In this matter, a unit owner notified its condominium association over leaks and mold in its unit. A driving leak was caused by a leak from an upstairs unit. The association did not remediate the unit...

20 August

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Venue Considerations when Challenging Venue

Posted by David Adelstein

in Appeal, Trial Perspectives

In a recent construction dispute, Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC, 48 Fla.L.Weekly D1381b (Fla. 2d DCA 2023), a general contractor hired a subcontractor. The subcontract contained NO venue provision or specified where payments were to be due. This was important because the general contractor and subcontractor were located in different counties and the general contractor was located in the county where the project at-issue was located. A payment dispute arose, and the subcontractor sued the general contractor in the county where it was located. The general contractor moved to transfer venue to the county...

11 June

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Draft Agreements with Clarity or…

Posted by David Adelstein

in Appeal

If you ever want to know why a contract or any agreement should be clearly written, here is the reason. In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

19 February

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Doctrine of Equitable Contribution

Posted by David Adelstein

in Trial Perspectives

Here is an interesting case dealing with the doctrine of equitable contribution which “applies to cases involving joint contractual obligations when the parties’ agreement does not address their rights to seek contribution.” Shamieh v. HCB Financial Corp., 48 Fla.L.Weekly D377a (Fla. 1st DCA 2023). In this case, two persons executed a mortgage and promissory note to purchase property. The persons were jointly and severally liable under the mortgage. They defaulted on the mortgage and one of the persons paid $1 million to settle the debt. That person sued his co-obligor under the mortgage for half of the settlement amount under...

12 November

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Doctrine of Respondeat Superior

Posted by David Adelstein

in Trial Perspectives

The doctrine of respondeat superior provides that “an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” “An employee's conduct is within the scope of his employment, where (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part...

16 April

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Adding a Non-Party Fabre Defendant to the Verdict Form

Posted by David Adelstein

in Uncategorized

In a recent premises liability action, the defendant appealed claiming the trial court failed to include a nonparty Fabre defendant on the verdict form. The appellate court disagreed and affirmed the trial court on this issue. It has become a common occurrence for parties to want others on the jury verdict form to give the jury an opportunity to allocate fault to a party other than them. And why not? However, this is not really how it works. A party cannot just argue that another party should be added to the verdict form just for the sake of it. That would...

22 November

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Piercing the Corporate Veil is NO Easy Feat

Posted by David Adelstein

in Trial Perspectives

Piercing a corporate veil to go after principals in their personal capacity is no easy feat. And it should not be viewed as an easy feat. While there are times trying to pierce the corporate veil is warranted, a party still MUST PROVE the requirements to pierce the protections of a corporate structure to go after the principals in charge of the corporate entity. Otherwise, doing business under a corporate structure would be severely emasculated. To pierce the corporate veil, a party must prove the following elements: “(i) [the person] dominated and controlled [the corporate entity] to such an extent that the...