15 June

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Tort of Intentional Infliction of Emotional Distress is a HARD Claim to Prove

The tort of intentional infliction of emotional distress is a HARD claim to prove. It sounds like a sexy claim to assert against a defendant, but it’s a hard claim to prove. Here is why: Intentional infliction of emotional distress requires the following elements: (1) intentional or reckless conduct; (2) outrageousness beyond all bounds of decency; (3) causation; and (4) severe distress. The second prong is the gravamen of the tort. The Restatement (Second) of Torts § 46 cmt. d (Oct. 2024 ed.) describes the standard as follows: The cases thus far decided have found liability only where the defendant's conduct has...

14 June

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Florida’s “Impact Rule” and Recovering Non-Economic Mental or Emotional Damages

Posted by David Adelstein

in Trial Perspectives

Florida follows the impact rule when it comes to a plaintiff pursuing non-economic emotional distress type of damages. The impact rule “bars recovery when the plaintiff claims mental or emotional damages but has not sustained any physical impact or contact.” Murphy v. Heritage II Holdings, LLC, 50 Fla.L.Weekly D1300c (Fla. 5th DCA2025) (internal citations omitted). “A plaintiff who suffers a physical impact may recover emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.” Murphy, supra, (internal citations omitted). Notably, the physical impact can be slight – “the essence of impact…is that the outside...

13 June

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Fees for Fees – Be Specific in Your Contract

Posted by David Adelstein

in Trial Perspectives

Attorney's fees are a creature of contract or statute. Regarding your contract, if you want attorney's fees for litigating the amount associated with an award granting you entitlement to attorney's fees (a concept known as "fees for fees"), you need to make sure contract is broad enought to cover the award of these fees. Otherwise, these attorney's fees will not be recovered. In a recent appeal, Isbell v. Bohrer, 50 Fla.L.Weekly D1267a (Fla. 4th DCA 2025), an attorney's fees provision read, "Should any litigation or legal proceeding be required by either party for the enforcement of this Agreement, the prevailing party...

14 September

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Proving a Novation

Posted by David Adelstein

in Trial Perspectives

“A novation is an agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation.” Schroer v. Cumdale Partners, LLC, 2024 WL 3882430 (Fla. 4th DCA 2024) (internal citation omitted). “Four elements form a novation: (1) the existence of a previously valid contract; (2) the agreement of the parties to cancel and extinguish the first contract; (3) the agreement of the parties that the second contract takes the place of the first; and (4) the validity of the new contract.” Id. (internal citation omitted). When arguing novation, remember these four...

02 September

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You cannot Profit from Your Own Illegality

Posted by David Adelstein

in Trial Perspectives

Remember this adage: You cannot profit from your own illegality. In a recent case, parties entered into a promissory note for the repayment of gambling debts. Naturally, the promissory note was not repaid and a lawsuit on the note was initiated. However, the promissory note was illegal as a matter of law and parties cannot ratify an otherwise illegal transaction: [Florida Statute] Section 849.26 provides that “[a]ll promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities . . . for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being...

21 July

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Fraudulent Inducement Renders Contract Voidable, but Induced Party can Still Ratify Contract

Posted by David Adelstein

in Trial Perspectives

Here’s an interesting tidbit when it comes to fraudulent inducement of a contract: the inducement renders a contract voidable (not void). See Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors, LLC, 49 Fla. L. Weekly D1512a (Fla. 4th DCA 2024) (citation omitted). This means if a party claims they were fraudulently induced into entering a contract, and elects to sue for damages on the contract, even a contract procured by fraud, the election to sue for damages on the contract “ratifies the contract and ensures that a party who accepts the proceeds and benefits of a contract remains subject...

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...

15 June

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Preferred Contractor Endorsement in Property Insurance Policies

Posted by David Adelstein

in Trial Perspectives

Certain property insurance policies have what is known as a preferred contractor endorsement. It can be written in numerous ways, but the objective is to allow the insurer to perform covered repairs through its preferred contractor. In a recent case, the property insurance policy contained this endorsement: That policy includes a preferred contractor endorsement which states that when a covered loss occurs to the insured's property “and repairs are necessary to protect property from further damage,” the insured must notify People's Trust [insurer] “before authorizing or commencing repairs so [People's Trust], at [its] option, may select Rapid Response Team, LLC, to make...

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...

28 May

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Difference Between Conversion and Civil Theft

Posted by David Adelstein

in Trial Perspectives

A recent case discusses the distinction between a conversion claim and a civil theft claim. Guess what? It’s a minor distinction, but one with a huge difference. In Batista v. Rodriguez, 49 Fla.L.Weekly D1099a (Fla. 3d DCA 2024), the allegations were that people wrongfully received checks from a woman’s bank account. These checks were the result of people taking advantage and exerting undue influence over the woman. A letter was sent demanding a return of the money and the money was not returned. The woman was found to be incapacitated and the woman’s guardian filed a lawsuit for conversion and civil...