Does an uneven floor level, in of itself, support a premise liability claim?  No!  Uneven floor levels are not so uncommon. 

The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor.  A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit.   The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not exist as a matter of law.  The appellate court affirmed the summary judgment with an informative discussion as to premise liability claims, particularly in the context of uneven floors:

An owner/occupier of land owes an invitee two duties: (1) to use ordinary care in keeping the premises in a reasonably safe condition; and (2) to give timely warning of latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee.  However, there is no duty to warn an invitee of an obvious danger. This duty does not change from a residential to a commercial context. 

Uneven floor levels in public places, by themselves, do not constitute latent, hidden, and dangerous conditions.  Dim lighting does not transform an otherwise-obvious change in floor elevation into a latent danger.  According to her own deposition testimony, [the plaintiff] had earlier that visit successfully exited the skating rink onto the floor under the same lighting conditions that were present when she fell. Because the uneven floor levels, even in dim lighting, constituted an open and obvious danger, Fun Town [owner of skating rink] had no duty to warn B.C. of the difference in the levels between the rink and the rest of the building floor.

Lastly, while an obvious danger may discharge a landowner’s duty to warn, Fun Town still had a separate duty to maintain the premises in a reasonably safe condition. [The plaintiff] did not allege, argue, or present evidence in opposition to Fun Town’s summary judgment motion that the condition of the lip or step where B.C. fell was improperly maintained, in disrepair, or negligently designed. Accordingly, we conclude that the trial court properly entered summary judgment in favor of Fun Town.

Contardi, supra (internal citations omitted).

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Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict:

(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

(b) Reservation of Decision on Motion. When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.

(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

The recent opinion in TLO South Farms, Inc. v. Heartland Farms, Inc., 44 Fla.L.Weekly D2385a (Fla. 2d DCA 2019), demonstrates what can happen if a defendant improperly moves to set aside a verdict based on a motion for directed verdict.  

In this case, a defendant moved for a directed verdict at the close of the plaintiff’s case-in-chief.  The court reserved ruling.  Due to the reservation, the defendant put on evidence to support its case.  The jury returned a verdict in favor of the plaintiff and the defendant filed a motion per Rule 1.480(b) to set aside the verdict and enter judgment in favor of the defendant per its motion for directed verdict. The defendant, also, per Rule 1.480(c), joined the motion with an alternative motion for a new trial. 

The trial court granted the motion to set aside the verdict and also granted the alternative motion for a new trial subject to the appeal (i.e., if the appellate court reverses the order to set aside the verdict, then the alternative motion for a new trial is granted).   The Second District reversed the trial court in entirety and remanded for the trial court to reinstate the jury’s verdict.  The appellate court’s basis for reversal, discussed below, is important to know.

Setting Aside the Verdict

The reason supporting the reversal as to the order to set aside the verdict was because the defendant’s motion to set aside the verdict per Rule 1.480(b) was based on an argument the defendant did NOT raise in its motion for directed verdict.  See TLO South Farms, supra (“[T]he trial court erred in granting the defendants’ motion to set aside the verdict and entering judgment in [defendant’s] favor on the FDUTPA [Florida’s Deceptive and Unfair Trade Practices Act] count based on their newly raised posttrial challenge to the evidence….”).  You cannot raise a new argument posttrial that was not raised in the motion for directed verdict.

Alternative Motion Granting New Trial

The trial court granted the alternative motion for new trial based on two issues: (i) the verdict on the Florida’s Deceptive and Unfair Trade Practice’s Act’s (“FDUTPA”) claim was inconsistent with the verdict on the negligence claim and (ii) the verdict on the FDUTPA claim was contrary to the manifest weight of the evidence.  

Regarding the first issue, the appellate court held that the defendant waived this argument because it never objected to inconsistent verdicts on the FDUTPA and negligence counts prior to the discharge of the jury.

Regarding the second issue, the appellate court held that a “trial court may order a new trial when the jury’s verdict is against the manifest weight of the evidence…[only when] the evidence is clear, obvious, and indisputable.”  TLO South Farms, supra (internal citations and quotations omitted).   The appellate court held the trial record did not support a ruling that the jury’s verdict was contrary to the manifest weight of the evidence.

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A restrictive covenant that runs with the land places restrictions on the use of real property.  As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.”   Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019).  These are important things to remember when enforcing or challenging a restrictive covenant.

For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant of land.  The restrictive covenant provided that the property “will not be used as a parking lot, storage yard facility or for a garage or tow truck company.”

The plaintiff wanted to build a parking garage on the property.  The defendant contended that a parking garage was restricted by the restrictive covenant.  The plaintiff filed a lawsuit for a declaratory judgment claiming ambiguities with the restrictive covenant, specifically with the word “garage.”  The parties did not dispute that the term “parking lot” referred to a surface parking lot as opposed to a parking garage.  The plaintiff was looking for a declaration from the court that the restrictive covenant did not restrict its use to build a parking garage on the property.  The appellate court, affirming the trial court, agreed.

Given the intent and meaning of ALL of the words in the restrictive covenant, the plaintiff could not use the property to conduct the business of activities of a garage company or tow truck company.  Beach Towing Services, supra (“The question thus becomes how to construe the words ‘for a garage or tow truck company,’ since the parties agree that the only dispute in this case is whether the word ‘garage’ as used in the Covenant prohibits Plaintiff from construction of a parking garage on the Property. Applying the series-qualifier, the Court must read the term ‘company’ as modifying both the term ‘garage,’ as well as the term, ‘tow truck,’ and the Covenant must therefore be read to mean that the Property cannot be used for either a ‘garage company’ or a ‘tow truck company.’  Indeed, there is no determiner before the words ‘tow truck’ that would indicate that the term ‘company’ modifies only ‘tow truck’ and not ‘garage’ (i.e., the Covenant does not say ‘for use as a garage or a tow truck company’).  Moreover, when reading the Covenant’s prohibition on a “garage company” in context, as the Court must do, ‘garage company’ is clearly associated with ‘tow truck company.’”) (internal citations omitted).  But, here, the plaintiff was not looking to engage in the business activities of a garage company or tow truck company.  Thus, nothing restricted the use of the property as a parking garage.

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It is permissible for non-Florida persons/entities to agree to arbitration in Florida.  Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida.

Section 682.18(1) of Florida’s Arbitration Code provides in material part:

The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause in the manner provided in this law.

This was at-issue in the opinion, Ancla International, S.A. v. Tribeca Asset Management, Inc., 44 Fla. L. Weekly D2189a (Fla. 3d DCA 2019), involving two non-Florida entities dealing with an out-of-country transaction.  Here, a Columbian company (owned by a Florida resident) entered into an agreement with a Panamanian company.  The underlying transaction was to occur in Columbia.  

The agreement contained the following arbitration provision:

SEVENTH. APPLICABLE LAW. This agreement will be governed by the laws of the State of Florida of the United States of America (USA), a jurisdiction accepted by the parties irrespective of the fact that the principal activity of the beer project will be conducted in Colombia. The parties agree that, in the event that differences arise between them as a result of or in relation to the present Agreement, they will attempt to resolve their differences via direct negotiation. For this purpose, the parties will have a period of thirty (30) business days, counting from the date on which either of the parties presents a request in this regard. This term may be extended by mutual agreement for additional thirty-day periods. If a solution is not reached within these stipulated periods, the differences will be submitted to an Arbitration Board, whose ruling with carry the force of law.

Although this provision is perhaps not a model of clarity relative to arbitration, the issue was whether the trial court had personal jurisdiction over the defendant to compel the parties to arbitration.   The parties agreed that personal jurisdiction stemmed from s. 682.18(1) of Florida’s Arbitration Act.  The Third District Court of Appeal held that the trial court had personal jurisdiction over the defendant “[b]ecause the parties accepted the power of Florida courts to enforce the Agreement.”   Ancla International, supra.   Hence, a Florida court could enforce the parties’ agreement to compel the parties to arbitration even though they are non-Florida entities dealing with a non-Florida transaction.

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There is a doctrine referred to as the Apex doctrine to prevent the deposition of a high ranking official.  The Apex doctrine stands for the proposition that “[an] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.”  Suzuki Motor Corp. v. Winckler, 44 Fla.L.Weekly D2219a (Fla. 1^stDCA 2019) (citation omitted).   Stated another way: “[A] party seeking to depose a . . . high-ranking governmental official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances.” Id. (citations omitted). 

The Apex doctrine has been applied in Florida in the government context, and not in the private corporate context to prevent the deposition of a high ranking corporate officer.   

This issue was subject of a petition for a writ of certiorari in Suzuki Motor Corp.where a plaintiff wanted to depose Mr. Suzuki—the former CEO and current Chairman of the Board of Suzuki Motor Corp.–in Japan based on his involvement in a product liability issue concerning the brakes of a motorcycle due to a letter or memo that had his signature.  The trial court allowed the deposition, notwithstanding objection, prompting the defendant to file a petition for a writ of certiorari.

The First District Court of Appeal denied the petition for writ of certiorari finding that the trial court did not depart from the essential requirements of law “because the apex doctrine [in Florida] has not been adopted in the corporate context.”  Suzuki Motor Corp., supra.  Further, the Court found that the “trial court’s decision that the Chairman’s deposition was reasonably calculated to lead to the discovery of admissible evidence provides no basis for us to quash the order below.”  Id. 

There was a good dissenting opinion in this case that demonstrated that Mr. Suzuki’s deposition may really have been taken for leverage to drive the case to a settlement.  There were other important depositions that were not taken that could have been taken.  There was a three day corporate representative deposition of Suzuki Motor Corp.  Mr. Suzuki provided a sworn declaration that he had no knowledge and did not recall the document.  And, this concerned one document in thousands of documents that were produced.  The dissenting opinion expressed:

To allow meritless discovery depositions of corporate leaders, who have provided sworn statements that they have no discoverable knowledge of the issue at hand, or that such information can be obtained from persons with less corporate responsibilities, is to allow illegitimate disruption in the private sector that is forbidden in the public sector. While the separation of powers certainly compels the application of the apex doctrine in the public sphere, the rationale of the doctrine is equally applicable in the private sphere: the courts cannot countenance unjustified discovery of lead corporate executives for no legitimate reason.

Regardless of how you feel about this deposition, the fact remains that there is a liberal standard with respect to discovery — discovery needs to be reasonably calculated to lead to the discovery of admissible evidence.  In this case, such standard was met.  Will this opinion open the door for parties to make arguments to depose high ranking corporate officials under the argument that the apex doctrine does not apply in the corporate context?  Likely!

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