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Burden of Proof

Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein on November 10, 2019
Appeal, Burden of Proof / Comments Off on 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 Choice Property & Casualty Ins. Co., Inc., 44 Fla. L. Weekly D257a (Fla. 4th DCA 2019) quoting Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5th DCA 2003).

For example, the case of Hurchalla involved an insurance coverage declaratory relief action where the insurer argued there is no coverage for an underlying action because the policy did not provide coverage for intentional acts.  During the case, the insurer moved for summary judgment, which was denied.  However, the underlying action went to trial and a verdict was entered against the insured based on the insured’s intentional act.  The insurer renewed its motion for summary judgment.  The insured opposed arguing that that the insurer had not negated her affirmative defenses.  The trial court nevertheless granted the insurer’s renewed motion for summary judgment.

The appellate court reversed.   The appellate standard of review of an order granting a motion for summary judgment is de novoHurchalla, supra.  

Here, the insured alleged affirmative defenses and nothing was done by the insurer to address their legal insufficiency or to factually disprove them.  “Where the defendant has raised affirmative defenses, the plaintiff must factually refute them or establish that they are legally insufficient before being entitled to summary judgment in its favor.”  Hurchalla, supra.  This failure to address affirmative defenses resulted in a reversal of the trial court’s granting of the motion for summary judgment.

 

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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Authentication of Photograph at Trial

Posted by David Adelstein on November 03, 2019
Burden of Proof, Evidence / Comments Off on Authentication of Photograph at Trial

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 constructive knowledge.  To do this, the plaintiff introduced a Google Maps photograph.  (The case says Google Maps but perhaps it was a photograph from Google Earth.).   The photograph was years prior to the incident and depicted that the condition of the sidewalk with the elevation differential was in existence for years such that the City should have known about it. 

A photograph from Google Maps or Google Earth is not self-authenticating so it still needs to be properly authenticated.   However, the plaintiff did not present any testimony from anyone with personal knowledge of the sidewalk’s condition as of the date of the photograph.  The plaintiff also did not present any testimony from a Google representative or anyone with knowledge of Google’s photographing system.  The plaintiff simply introduced the photograph through her expert, despite objection from the City, even though the expert also could not authenticate the photograph. 

A jury awarded the plaintiff damages and the City appealed with the primarily appellate issue concerning the admission of the Google photograph into evidence. 

The Third District held there are two ways a photograph can be admitted into evidence:

“There are two methods of authenticating photographic evidence.”  The first is the “pictorial testimony” method, which requires a witness with personal knowledge to testify that the image fairly and accurately depicts a scene.  The second is the “silent witness” method, under which the photograph “may be admitted upon proof of the reliability of the process which produced the tape or photo.”  A trial judge may admit a photograph under the silent witness method after considering the following factors:

(1) evidence establishing the time and date of the photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, testing, operation, and security of the equipment used to produce the photographic product, including the security of the product itself; and

(5) testimony identifying the relevant participants depicted in the photographic evidence.

Kho, supra (internal citations omitted).

Here, the Google photograph at-issue was not authenticated by a person. There was no testimony that the photograph fairly and accurately depicted the condition of the sidewalk as of the date stamp on the photograph.  Also, there was no testimony as to the authentication of the photograph under the silent witness method.  The plaintiff “did not present any evidence as to the operating capabilities or condition of the equipment used by Google Maps. There also was no testimony as to the procedures employed by Google Maps in taking the photograph. Given the lack of evidence as to any of the relevant factors [identified above], the trial court did not make any findings regarding admissibility under the silent witness method.”  Kho, supra

But, here is the harsh outcome of the fact that this Google photograph was not properly authenticated at trial.  The appellate court reversed and remanded with instructions to enter judgment in favor of the City.   Even though the plaintiff obtained a jury verdict at trial, the plaintiff does not get another bite out of the apple to retry her case with proper proof.  The plaintiff “was aware that the City would be contesting the photograph’s admissibility and had ample time to prepare the extrinsic evidence necessary to properly authenticate it. Thus, the City is entitled to judgment in its favor.”   Kho, supra.  Ouch!

 

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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Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein on September 15, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

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 for competent substantial evidence.  If competent, substantial evidence supports the trial court’s findings, the ruling would not be disturbed on appeal. At trial, however, there was NO competent substantial evidence presented by the contractor that the owner failed to mitigate his damages. Forbes v. Prime General Contractors, Inc., 43 Fla.L.Weekly D2094a (Fla. 2d DCA 2018) (“Here, there is no competent substantial evidence that the Forbeses [owner] could have taken any measure without undue effort or expense to avoid [mitigate] the damages they sought.”).

 

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).

If you’ve had an accident and been hurt on someone else’s property in Tennessee, you may wish to get in touch with someone like a Premises Liability Lawyer in Morristown to help you with your potential claim.

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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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein on March 11, 2018
Appeal, Burden of Proof, Standard of Review / Comments Off on Moving for an Involuntary Dismissal in a Nonjury Bench Trial

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 involuntary dismissal as indicated by the emphasized language below:

Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under rule 1.090(d). After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

In a bench trial, motions for involuntary dismissal are appropriate if the plaintiff fails to establish a prima facie case, i.e., the plaintiff fails to introduce evidence that establish the elements of his/her claim(s) against the defendant.  Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003).  “To rule on the motion for involuntary dismissal, the trial court was required to view the evidence in the light most favorable to the plaintiff, resolving every conflict and inference in its favor.”  Id.   See also Nationstar Mortgage, LLC v. Silva, 43 Fla.L.Weekly D548a (Fla. 3d DCA 2018) (“A motion for involuntary dismissal should only be granted ‘when there is no reasonable evidence upon which a [fact finder] could legally predicate a verdict in favor of the non-moving party.’” (quoting Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012)).

In ruling on a motion for involuntary dismissal, the trial court is NOT supposed to rule on the credibility of a testifying witness.  Deutsche Bank Nat. Trust Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016).  This is because when:

[T]he movant [party moving for involuntary dismissal] admits the truth of all facts in evidence an every reasonable conclusion or inference based thereon favorable to the non-moving party [e.g., plaintiff].  Where the plaintiff has presented a prima facia case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal.

Id. quoting Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989).

Importantly for appellate purposes, if a plaintiff is appealing a trial court’s granting of a motion for involuntary dismissal in a bench trial, it is reviewed under a de novo standard of appellate review.  Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4th DCA 2016).

 

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

Posted by David Adelstein on January 24, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Appeal of Jury Instructions with Wrong 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 Fla. L. Weekly D164a (Fla. 4th DCA 2018) citing Daniels v. State, 121 So.3d 409, 413 (Fla. 2013).  

The appellate court found the the trial court’s jury instructions were erroneous meaning the case was remanded back to the trial court for a new trial (with correct jury instructions regarding the burden of proof).

It is important to note that at the charging conference between counsel and the judge to discuss the jury instructions that will be read to the jury, the insured’s lawyer objected to the jury instructions that the judge was going to read to the jury.  This charging conference is important and, as the insured’s lawyer did in this case, it is crucial to object to any jury instruction that is incorrect and/or applies the wrong burden of proof. 

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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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein on November 04, 2017
Appeal, Burden of Proof, Standard of Review, Trial Perspectives / Comments Off on Striking / Excusing a Prospective Juror for Bias during Voir Dire

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). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, supra.

 

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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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein on April 01, 2015
Burden of Proof, Jury Instructions / Comments Off on Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

 

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
Burden of Proof, Evidence / Comments Off on Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

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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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