10 November

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Refuting Affirmative Defenses in Motion for Summary Judgment

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses. Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency. Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses. “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’” Hurchalla v. Homeowners...

03 November

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Authentication of Photograph at Trial

Posted by David Adelstein

in Burden of Proof, Evidence

A photograph needs to be authenticated at trial just like any other evidence. A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated. In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk. The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of. The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on...

15 September

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Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein

in Appeal, Burden of Proof

I recently discussed the defense of mitigation of damages as it applies to contract cases. An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract. In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages. The owner appealed this issue which was reversed on appeal. The reason it was reversed is because the trial court's finding that the owner failed to mitigate his damages is reviewed on appeal...

08 April

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

Posted by David Adelstein

in Burden of Proof, Standard of Review

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...

11 March

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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case. This is a common motion after the plaintiff in a bench trial puts on his/her case. No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff. Florida Rule of Civil Procedure 1.420(b) authorizes motions for...

24 January

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Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein

in Appeal, Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy. This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury. Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions. This issue is reviewed under a de novo standard of appellate review. See Jones v. Federated National Ins. Co., 43...

04 November

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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review, Trial Perspectives

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions)....

20 February

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The Nonparty Fabre Defendant

Posted by David Adelstein

in Burden of Proof, Trial Perspectives

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...

01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein

in Burden of Proof, Jury Instructions

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.,...

07 March

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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

in Burden of Proof, Evidence

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...