02 April

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Negligent Training, Retention, Supervision, and Entrustment Claims Against Individual Officers and Agents

In Jones v. Vasilias, 48 Fla.L.Weekly D568a (Fla. 4th DCA 2023), the plaintiff was injured when he was riding his bike in front of an automobile dealership. An employee of the dealership hit the plaintiff as he was leaving the dealership in a van for a delivery. The plaintiff, in addition to suing the driver of the van and the dealership, asserted claims against the dealership’s general manager and service manager in negligence for negligent training, retention, supervision, and entrustment. The trial court dismissed the negligence claims against the general manager and supervisor. The Fourth District Court of Appeal reversed...

29 May

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Premise Liability and Duty Owed to Business Invitees

Posted by David Adelstein

in Trial Perspectives

A premise liability action is a negligence action. As with any negligence action, a focus is on the duty the defendant (the landowner or possessor of real property) owes to the plaintiff. In a premise liability action, a focus is on the duty an owner or possessor owes to an invitee. An owner owes two duties to a business invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be...

17 October

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Duty Element of Negligence – Did Defendant’s Conduct Foreseeably Create Broader Zone of Risk

Posted by David Adelstein

in Trial Perspectives

In any negligence action, the first element a plaintiff needs to prove is that the defendant owed a duty of care to the plaintiff. Lee v. Harper, 46 Fla.L.Weekly D2251a (Fla. 1st DCA 2021). This duty element is a threshold legal question or a question of law. Id. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’that poses a general threat of harm to others.” Id. (quotations and citations omitted). The issue is not whether the harm in question was foreseeable but the “defendant’s conduct must create the risk or control the...

29 August

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Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages

Posted by David Adelstein

in Trial Perspectives

Lawsuits are an inconvenience. They just are--no doubt about it. You have to devote time and resources, both of which you would prefer to allocate to another endeavor. However, while your time is valuable, this does NOT mean you can recover an inconvenience factor associated with your lawsuit. In a recent case, P&G Trucking of Brandon, Inc. v. Riverland Hedging & Topping, Inc., 45 Fla. L. Weekly D2023a (Fla. 4th DCA 2020), a truck struck and damaged a tractor and citrus topper. The owner of this damaged machinery sued in negligence for property damage in addition to its lost profits,...

26 July

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Comparative Fault Applies when Substance of the Action is Sounded in Negligence

Posted by David Adelstein

in Trial Perspectives

In previous postings (check here and here) I discussed the doctrine known as comparative fault or comparative negligence referenced in Florida Statute s. 768.81. This is when the trier of fact allocates a parties percentage of fault to the damages claimed by the plaintiff. A party can only be liable for their pro rata percentage of fault and fault can even be allocated to the plaintiff. This doctrine typically applies in negligence claims. However, in a recent construction dispute dealing with only economic damages, further discussed here, the appellate court considered that Florida Statute s. 768.81 focuses on the...

01 January

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The Duty of Care Element in a Negligence Action is a Question of Law

Posted by David Adelstein

in Trial Perspectives

There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages. Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused damages to the plaintiff. Whether a duty of care exists is a question of law, meaning it is a question for the court. Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019). If there is no duty, there is no...

22 December

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Giving Rise to the Exception to Sovereign Immunity Against a Public Officer, Employee, or Agent

Posted by David Adelstein

in Trial Perspectives

In an important opinion stemming from the tragically horrific and deplorable mass shooting at Stoneman Douglas High School in February 2018--an incident that eternally weighs heavily in hearts --the school resource officer assigned to the school was sued under negligence theories. Peterson v. Pollack, 44 Fla. L. Weekly D2983b (Fla. 4th DCA 2019). The school resource officer moved to dismiss the lawsuit under sovereign immunity (i.e., that he was statutorily immune from such a lawsuit), and specifically, protection afforded to him under Florida Statute s. 768.28(9)(a). This subsection provides in pertinent part: No officer, employee, or agent of the state or of...

10 February

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Posted by David Adelstein

in Trial Perspectives

Everybody knows that you need to maintain properties, no matter what type of building it is. If a lock breaks, call a locksmith as soon as possible to change it. If you see signs of pests, get professional pest control san marcos tx to ensure it's dealt with. If a pipe leaks, hire a plumber and make sure there's no water damage. The list goes on. However, did you know that you've got a duty to maintain even the most obvious issues and dangerous conditions? Even with an open and obvious dangerous condition, there may still exist a duty to...

01 September

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Premise Liability Claims and Duties of Owners to Invitees

Posted by David Adelstein

in Trial Perspectives

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property. What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about...

05 May

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Mid-litigation Monetary Settlement with Co-Defendant

Posted by David Adelstein

in Trial Perspectives

I recently discussed a doctrine that applies in negligence cases known as the undertaker's doctrine. Some may also call this the no good deed goes unpunished doctrine. Just kidding; but, this undertaker's doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a duty to prevent the beneficiary of that service from harm. For instance, a tenant sued the owner of the condominium he (and his family) was renting and his real estate agent for water intrusion and mold problems in the unit. The tenant claimed the real...