negligence

Premise Liability Claims and Duties of Owners to Invitees

Posted by David Adelstein on September 01, 2018
Trial Perspectives / Comments Off on Premise Liability Claims and Duties of Owners to Invitees

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? 

The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about and which are not known to the invitee in a timely manner. The open and obvious danger doctrine may discharge the duty to warn, but it “does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” 

TruGreen Landcare, LLC v. LaCapra, 43 Fla.L.Weekly D2027a (Fla. 5th DCA 2018) (internal citations omitted).

The open and obvious doctrine, referred to above, is a defense to owners in a premise liability claim and applies to the second duty — the duty to warn of latent dangerous conditions / defects.  But, this duty does not apply to dangerous conditions / defects that are open and obvious. 

The open and obvious danger doctrine “provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.”  “This doctrine rests upon the generally accepted notion that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the ordinary use of their senses.”  In analyzing whether a danger is open and obvious, “the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

TruGreen Landcare, LLC, supra (internal citations omitted).

As mentioned, if a potentially dangerous condition on the property is open and obvious, i.e., it is not latent / hidden, than an owner has a strong defense to an injured invitee’s premise liability claim. However, this open and obvious defense does not apply when a plaintiff claims that an owner or possessor negligently maintained the property in a reasonably safe condition (and this caused their injury).   “Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious.”  TruGreen Landcare, LLC, supra

In TruGreen Landcare, LLC, the plaintiff bypassed a sidewalk and walked in a landscaped area in front of a movie theater in a plaza.  As he was walking in the landscaped area, he tripped and fell in a depressed area.  The landscaped area was surrounded by sidewalk and was referred to as a palm tree planter square which was a grassy area with artificial turf with a palm tree in the center.  The plaintiff sued, among other parties, the landscaper for negligently maintaining the landscaped area (palm tree planter square) in a reasonably safe condition. The landscaper contended that it owed no duty to the plaintiff to keep that area in a safe condition or warn of any dangerous condition because, as a matter of law, landscaped areas are not dangerous conditions.  The landscaper further argued that the issue that caused the plaintiff to trip was open and obvious.

Remember, the open and obvious defense does not apply when the plaintiff is claiming that the owner or possessor of the property negligently failed to maintain the property in a reasonably safe condition. While this is generally an issue of fact for the jury, there are:

[S]ome conditions [that] are considered so obvious and not inherently dangerous that they do not, as a matter of law, support liability for the breach of the duty to maintain the premises in a reasonably safe condition.  In particular, landscaping features “are generally found not to constitute a dangerous condition as a matter of law.”  Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose or to warn that they are not safe for walking.  In these situations, the rule “is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness.” 

TruGreen Landcare, LLC, supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Mid-litigation Monetary Settlement with Co-Defendant

Posted by David Adelstein on May 05, 2018
Trial Perspectives / Comments Off on Mid-litigation Monetary Settlement with Co-Defendant

I recently discussed a doctrine that applies in negligence cases known as the undertaker’s doctrine.  Some may also call this the no good deed goes unpunished doctrine.  Just kidding; but, this undertaker’s doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a duty to prevent the beneficiary of that service from harm.  

For instance, a tenant sued the owner of the condominium he (and his family) was renting and his real estate agent for water intrusion and mold problems in the unit.  The tenant claimed the real estate agent was negligent because the agent agreed to fix the problems with the unit but neglected to do so.  This is where the undertaker’s doctrine comes into play–the agreement to undertake a service exposed the real estate agent to a duty to use reasonable care with that service.  

The owner of the unit settled with the tenant for $82,000 resulting in a final judgment against the owner.  The real estate agent argued that the negligence claim against him should be deemed moot in light of this settlement since the agent was being sued for the same damages.  The appellate court disagreed because there was nothing in the record to reflect that the settlement amount with the owner included ALL of the tenant’s damages.

Mid-litigation monetary settlements are often less than the total amount of damages that the plaintiff was claiming. Each side gives up something when they settle, including some of the plaintiff’s potential monetary damages award.”  Muchnick v. Goihman, 43 Fla.L.Weekly D986b (Fla. 3d DCA 2018).   The settlement amount would serve as a set-off from any judgment amount or verdict awarded against the agent to avoid any windfall to the tenant; however, the agent does not get to put the cart before the horse and argue the case against him is moot because the plaintiff settled with the co-defendant. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein on April 08, 2018
Burden of Proof, Standard of Review / Comments Off on Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be.  It is also not a motion commonly granted.  But, this does not mean there are no appellate rights if a court denies a motion for directed verdict.  A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review.

An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate court reversed a trial court’s denial of a motion for directed verdict and remanded the case back to the trial court to enter judgment in favor of the defendant.  A devastating appellate outcome for a plaintiff that was victorious in the underlying jury trial.

In this case, an older couple was shopping at Publix and the wife slipped on water on the ground.  The husband did not witness the incident.  Both the husband and wife did testify that they saw an employee with a mop in his hand after the fall, but neither could testify the mop was wet or that the employee was using the mop.   However, video evidence revealed that the presumed employee only had been using a broom and dustpan. And, the store manager testified that Publix did not use pre-soaked cotton mops but used dry rayon mops for its floors.

The jury nevertheless returned a verdict for the wife for over $1.5 million in damages. 

On appeal, Publix claimed, among other things, that the trial court erred by not granting its motion for directed verdict.  The appellate court agreed.  The evidence at trial did not demonstrate that Publix had any actual knowledge of the water on the floor prompting the dangerous condition that the wife slipped on.   The evidence also did not demonstrate that Publix’s own employee caused the condition.  This was important evidence because the plaintiff was required to prove (remember, the plaintiff had the burden of proof) “that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche [plaintiff] to slip and fall.”  Publix Supermarkets, supra.   The plaintiff argued that Publix had actual knowledge because she and her husband both saw a man with a mop and he caused the water to be on the floor.   But, she only saw the man with the alleged mop after she fell.  “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. If the only way a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”  Publix Supermarkets, supra, (internal citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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The Nonparty Fabre Defendant

Posted by David Adelstein on February 20, 2016
Burden of Proof, Trial Perspectives / Comments Off on The Nonparty Fabre Defendant

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I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases.

A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007).

As further explained in Florida Statute s. 768.81(3):

(3) Apportionment of damages.–In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(a) 1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

This means in order to allocate fault to a Fabre defendant (a nonparty) the named defendant must a) plead the fault of the nonparty and identify the nonparty in an affirmative defense, and, importantly b) prove at trial by a preponderance of evidence the fault of the nonparty (the Fabre defendant) causing plaintiff’s injuries in order to get that nonparty on the verdict form for purposes of having the jury allocate damages to the nonparty.  

Simply identifying the nonparty in an affirmative defense is not good enough. The burden of proof is on the named defendant to prove the nonparty’s negligence at trial to get that nonparty on the verdict form as a Fabre defendant. R.J. Reynolds Tobacco Company v. Grossman, 96 So.3d 917, 919-20 (Fla. 4th DCA 2012) (nonparty Fabre defendant may not be included on verdict form until defendant proves nonparty’s negligence at trial) . However, a named defendant cannot rely on the vicarious liability of a nonparty to prove that nonparty’s fault in order to get that nonparty identified on the verdict form. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263 (Fla. 1996) (security company could not name hospital that hired it as Fabre defendant since hospital would only be vicariously liable based on the negligence of the security company).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein on December 04, 2015
Depositions / Comments Off on Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

 

Speculative and inadmissible testimony should not be considered on a summary judgment.

This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015).  In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am.   He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have done nothing to cause or avoid the accident.

The estate of the decedent filed a wrongful death action (founded in negligence). The defendants moved for summary judgment based on the undisputed evidence. The plaintiff-estate responded based on inadmissible and speculative evidence of the decedent’s folks.   The trial court granted summary judgment and the appellate court affirmed. In affirming, the appellate court gave a great discussion of summary judgments, particularly summary judgments involving negligence actions:

 

In a negligence action, summary judgment is improper [u]nless a defendant can establish unequivocally the absence of negligence[ ] or that the plaintiff’s negligence was the sole proximate cause of the injury. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.

***

The estate relied solely on the deposition testimony of Panzera’s [decedent’s] parents, wherein they surmised that O’Neal [semi-tractor’s driver] could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see Panzera before the collision occurred. Their conclusions were based only on their personal review of the scene after the accident. The Panzeras admitted that they do not have experience in accident reconstruction and were not present at the time of the accident. Therefore, their bare allegations of negligence are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.

Panzera, supra (internal quotations and citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Applying the Tipsy Coachman Doctrine

Posted by David Adelstein on May 09, 2015
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In a previous article, I discussed the appellate doctrine known as the tipsy coachman doctrine, which stands for the principle that an appellate court can affirm a trial court even if the trial court reached the right result (supported by the record) but for the wrong reasons. This doctrine allows an appellee (party prevailing in the trial court and responding to appeal) that is arguing to affirm the trial court’s ruling to present any argument on appeal supported by the record even if that argument was not raised in the trial court. Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999).

For instance, a premise liability action is a type of negligence action where an invitee or attendee gets injured on another’s property.   The very first element to prove in any negligent action is that the defendant owed the plaintiff a duty of care. In a premise liability action, if a defendant is deemed to exercise control over the premises / property, the defendant owes a duty of care to keep the premises / property reasonably safe and warn others of latent perils and dangers on the premises / property.

Assume in this type of premise liability action, an attendee at a festival or outdoor event tripped and injured himself/herself over some exposed material penetrating from the ground. The attendee sued the organizers of the festival or event in a premise liability action. The festival argued that it had no duty to the attendee because it did not own the property where the attendee tripped on exposed material penetrating from the ground. The trial court agreed with the festival and entered summary judgment in favor of the festival.   On appeal, however, it appeared that the trial court incorrectly applied the law because the issue was not whether the festival actually owned the property where the attendee tripped, but whether it assumed any control over the premises in question that would trigger its duty to maintain that premises in a reasonably safe condition. The appellee, in trying to affirm the trial court’s ruling, raised an argument that was never raised at the trial level but supported by the record (the tipsy coachman doctrine). The appellee argued even if it had a duty to maintain the property, the exposed material that the attendee tripped on was so open and obvious as supported by the record that it had no duty to warn the attendee of this open and obvious condition. In other words, the appellee wanted to show that the trial court still reached the right result even if the trial court’s result was based on the wrong reason. (These facts are modeled after a recent appellate opinion in Cook v. Bay Area Renaissance Festival of Largo, Inc., 40 Fla. L. Weekly D1091b (Fla. 2d DCA 2015) where the appellee trying to affirm the trial’s court’s ruling raised a new argument to support the ruling not raised with the trial court.)

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein on April 01, 2015
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When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff).  Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses.

The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense.   This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e., the affirmative defense of comparative negligence.   The reason the defendant argued this is to reduce its damages exposure.

For instance, let’s assume the jury found that the plaintiff’s damages were $100,000 but that the plaintiff was 50% responsible for her damages. This would have the effect of the court reducing the plaintiff’s damages by 50% or, in this hypothetical, $50,000, in the judgment.

Florida’s standard jury instruction dealing with comparative negligence provides:

501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND MULTIPLE DEFENDANTS

In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of (claimant). The court will enter a judgment based on your verdict and, if you find that (claimant) was negligent in any degree, the court in entering judgment will reduce the total amount of damages by the percentage of negligence which you find was caused by (claimant).

[The court will also take into account, in entering judgment against any defendant whom you find to have been negligent, the percentage of that defendant’s negligence compared to the total negligence of all the parties to this action.]*

*Use the bracketed paragraph above only when there is more than one defendant; the reference to “responsibility” in this additional instruction is designed for use in strict liability cases.

However, the point is that even if you wanted to assert comparative negligence as an affirmative defense, the burden would be upon you (the defendant) to prove this defense. The Court in Bongiorno explained:

Comparative negligence is an affirmative defense; thus, the party asserting the defense bears the burden of proving that the negligence of the other party was a cause of the accident.

***

The four elements necessary to prove a negligence claim [and, thus, a comparative negligence defense] include: (1) a duty to conform to a certain standard of conduct; (2) a breach of the duty; (3) proximate cause; and (4) damages.

Bongiorno, supra (internal quotations and citations omitted).

Notably, in Florida, when it comes to negligence claims, a defendant can only be liable for his/her/its pro rata percentage of fault. See Fla. Stat. 768.81(3) (“In a negligence action [or an action based on a theory of negligence], the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”). This means that joint and several liability no longer applies in negligence actions; this is why a defendant’s allocated percentage of fault, especially when there are multiple defendants, becomes important. With the affirmative defense of comparative negligence, as mentioned above, the defendant’s pro rata percentage of fault may be reduced based on the pro rata percentage of fault caused by the plaintiff that contributed to the plaintiff’s damages.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

Posted by David Adelstein on March 07, 2015
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Mostly everyone has heard of the term “negligence.” Negligence actions oftentimes form the basis of personal injury claims and, in certain instances, property damage claims. (For example, this article discusses negligence actions in premise liability claims.)

To prove a negligence claim, a plaintiff must prove the following elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care, 3) the defendant’s breach proximately caused damages to the plaintiff, and 4) the plaintiff suffered injuries / damages.

The Florida Supreme Court in Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015) recently discussed the application of a directed verdict in a negligence action (the case was a negligent security action). The district court of appeal held that the plaintiff, as a matter of law, failed to prove the element that her injuries were proximately caused by the defendant’s breach of a duty of care. The Florida Supreme Court reversed with two important rulings regarding 1) the element of proximate causation in a negligence action and 2) the granting of a directed verdict in a negligece action.

Element of Proximate Causation in Negligence Action

 

 As to the element of proximate causation, the Florida Supreme Court held:

“Whether or not proximate causation exists is a question of fact, involving an inquiry into whether the respondent’s [defendant] breach of duty [of care] foreseeably and substantially contributed to the plaintiff’s injuries. This Court has made clear that plaintiffs alleging negligence in Florida must meet the more likely than not standard of causation as Florida courts require proof that the negligence probably caused the plaintiff’s injury.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Directed Verdict in Negligence Action

 

As to the granting of a directed verdict, the Florida Supreme Court held:

“In order for a court to remove the case from the trier of fact and grant a directed verdict, there must only be one reasonable inference from the plaintiff’s evidence. Where the jury only has to draw one inference from direct evidence to reach a decision regarding the defendant’s negligence, the jury is entitled to make the ultimate factual determination regarding whether the defendant’s breach was the proximate cause of the harm suffered. Thus, if the jury is forced to stack inferences to find that the plaintiff presented a prima facie case of the defendant’s negligence, then a directed verdict is warranted. An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the non-moving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Take-Aways

 

The following bullet points are important take-aways from this Florida Supreme Court case:

  • When proving a negligence action, make sure you understand the elements you need to prove and the evidence required to support the elements.
  • The element of proximate causation is typically a question of fact and is generally proven by the “more likely than not” standard—the plaintiff must prove that the defendant’s breach probably (e.g., more likely than not) caused the plaintiff’s injuries / damage.
  • A directed verdict entered against a plaintiff will only be proper if no proper view of the evidence and all inferences from the evidence can sustain a verdict in favor of the plaintiff as a matter of law.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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