24 August

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The Duty of Care Extended to Invitees is Not Boundless

In the previous posting, I write about how the element of duty in a negligence claim is a question of law. It is up for the court to decide and not the jury. However, I did not delve into the facts of the case. The underlying case was a personal injury case. A plaintiff was injured when she parked her car and, instead of using the paved sidewalk, decided to cross a grassy median and stepped on an irrigation box. She sued the defendant in a premise liability negligence action claiming the defendant failed to maintain the grassy median, or adequately...

05 November

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The Violation of a Company’s Internal Policies Alone does Not Create a Duty Owed to a Third Party

Posted by David Adelstein

in Appeal, Standard of Review

Can internal policies of a company create a standard of care or duty to a plaintiff? Stated another way, can a company’s violation of its internal policies result in a breach of that company’s standard of care or duty to plaintiff? A recent case, Discount Tire Co. v. Tammy Bradford, as the Personal Representative of the Estate of Bradford, 2023 WL 7228186 (Fla. 5th DCA 2023), in analyzing case law with respect to this issue, answered this issue in the negative: a company’s internal policy’s do not alone create duties owed to third parties. In this case, a retail tire company was...

23 October

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Directed Verdict Granted where No View of Evidence Could Support Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

In this blog posting, I discussed a case where the appellate reversed a final judgment in favor of a plaintiff on a breach of contract claim and remanded for the trial court to enter judgment in favor of the defendant. The appellate court found that the trial court should have entered defendant’s motion for directed verdict on plaintiff’s breach of contract claim. There are three interesting points regarding a motion for directed verdict. One, a motion for directed verdict is reviewed under a de novo standard of appellate review. Two: A motion for directed verdict should be granted only where no view of the...

29 August

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Establishing Punitive Damages Against a Corporation

Posted by David Adelstein

in Appeal, Standard of Review

“In Florida, there are two methods for establishing a claim for punitive damages against a corporation: ‘(1) vicarious liability based on the willful and malicious actions of an employee with a finding of independent negligent conduct by the corporation; or (2) direct liability based on the willful and malicious actions of managing agents of the corporation.’" Wells Fargo Bank, N.A. v. Electronic Funds Transfer Corp., 46 Fla.L.Weekly D1824e (Fla. 5th DCA 2021) In Wells Fargo Bank, a defendant bank was being sued for punitive damages. At the conclusion of the evidence, the defendant bank moved for a directed verdict as to the...

22 September

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Improperly Moving to Set Aside the Verdict

Posted by David Adelstein

in Appeal

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...

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 November

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Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Posted by David Adelstein

in Trial Perspectives

Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly pled, pleading a fraud-type claim and proving a fraud-type claim are two different things. A party can plead a fraud-type claim to get passed a motion to dismiss. Proving the fraud-type claim, however, is a different story. Plaintiffs need to understand the elements they are...

18 August

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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein

in Trial Perspectives

Caveat Emptor. Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property. In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million. The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was...

25 June

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Challenging Standard for Granting Directed Verdict

Posted by David Adelstein

in Evidence, Trial Perspectives

If there is a jury trial, there will be a motion for directed verdict. But, the standard for granting a motion for directed verdict is challenging; if the directed verdict is granted, an appeal will be filed arguing the trial court’s error in granting the directed verdict. James v. City of Tampa, 2016 WL 3201221 (Fla. 2d DCA 2016) was a personal injury action. The issue at trial was whether the plaintiff’s injuries from a car accident constituted a permanent injury (as this issue impacted damages to be awarded to the injured plaintiff). At the conclusion of all of the evidence, the...

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