10 February

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

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...

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...

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...

04 December

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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein

in Depositions

Speculative and inadmissible testimony should not be considered on a summary judgment. This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015). In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am. He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have...

09 May

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Applying the Tipsy Coachman Doctrine

Posted by David Adelstein

in Appeal

In a previous article, I discussed the appellate doctrine known as the tipsy coachman doctrine, which stands for the principle that an appellate court can affirm a trial court even if the trial court reached the right result (supported by the record) but for the wrong reasons. This doctrine allows an appellee (party prevailing in the trial court and responding to appeal) that is arguing to affirm the trial court’s ruling to present any argument on appeal supported by the record even if that argument was not raised in the trial court. Dade County School Board v. Radio Station WQBA,...

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...

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