July 1997

Amendment to Conform to the Evidence

City of Miami v. Ross
22 Fla. L. Wkly. D1440 (Fla. 3d DCA 1997)

Plaintiff sued for a police officer's negligent use of excessive force, a cause of action which is not recognized in Florida. The court held that the trial court properly allowed the plaintiff to amend the complaint to conform to the evidence to allege intentional use of excessive force where the issue was tried by consent by the admission of evidence that the officer acted intentionally. The defendant was not prejudiced because they anticipated the evidence that was presented.

Civil Rights

Jones v. Kirkland
22 Fla. L. Wkly. D1518 (Fla. 4th DCA 1997)

A public official is not entitled to qualified immunity where he knowingly violates established law.

Bolanos v. Bain
22 Fla. L. Wkly. D1601 (Fla. 3d DCA 1997)

Police officers are not entitled to qualified immunity against allegations that they allowed and encouraged a police dog to bite and tear at plaintiff's arm long after he was subdued and was no longer a threat. However, the officers were entitled to qualified immunity for claims that they used excessive force in handcuffing plaintiff because the law on that subject was not clearly established at the time of the event.

Class Actions

Ford Motor Co. v. Magill
22 Fla. L. Wkly. D1728 (Fla. 3d DCA 1997)

Because the National Highway Traffic Safety Administration had negotiated national recall mandates and extended warranties, and the manufacturer was complying, thus providing the owners of vehicles a remedy, it was not error to deny certification of a class action alleging a dangerous defect in 1991-1995 Ford Explorers, where the plaintiffs alleged contract claims and only economic injuries, not personal injuries. The court held that individual breach of contract claims should be transferred to the appropriate court.

Economic Loss Rule

Saratoga Fishing Co. v. J.M. Martinac & Co.
65 U.S.L.W. 4429 (1997)

The economic loss rule in admiralty (which the court calls the "East River doctrine") apparently allows a more liberal recovery than it does under Florida law. This case involved a ship with a defective hydraulic system which caused the ship to catch fire and sink. The court held that the owner, who bought the ship used from the initial purchaser, could recover for the loss of equipment added by the initial purchaser. The added equipment was "other property", not part of the product that itself caused the harm.

The court says the result would be the same if the product had remained in the hands of the initial purchaser. The decision is even more noteworthy because the dissent points out that the initial purchaser may have been in the business of purchasing ships, equipping them and reselling them. However, the initial purchaser did use the ship before reselling it to the plaintiff. The dissent cites Casa Clara Condo. Assoc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla. 1993), which would not have allowed recovery in this case.

Thanks to Adam Leichtling for bringing this case to my attention.


Gonzalez v. Veloso
22 Fla. L. Wkly. D1539 (Fla. 3d DCA 1997)

In Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996), the Supreme Court held that apportionment of fault is an affirmative defense which the defendant must plead. Here, the court holds that a defendant must plead the defense of apportionment with a co-defendant who has settled, or else the name of the settling co-defendant does not go on the verdict form. Because the defendant failed to plead the affirmative defense here, the plaintiff is entitled to judgment in the full amount of the verdict.

It was my pleasure to work with Gus Perez on this case.

Days Inn of America, Inc. v. Maus
22 Fla. L. Wkly. D1572 (Fla. 1st DCA 1992)

The court holds that a premises owner is not entitled to apportionment with an intentional tortfeasor who is able to injure a guest on the premises because of negligent security. The issue is pending before the Supreme Court in Stellas v. Alamo, 673 So.2d 943 (Fla. 3d DCA), review granted, 683 So.2d 485 (Fla. 1996).

Wal-Mart Stores, Inc. v. Coker
22 Fla. L. Wkly. D1561 (Fla. 1st DCA 1997)

The 1st DCA holds that the apportionment provisions of 768.81 do not allow a negligent seller of a gun to apportion fault with the intentional tortfeasor who uses to gun to commit a tort. The court certifies the question to the Supreme Court.

Metropolitan Dade County v. Frederic
22 Fla. L. Wkly. D1663 (Fla. 3d DCA 1997)

Where the jury found the deceased 55% at fault, and found the defendant county 17.5% at fault, and the other defendant settled, the defendant county could not be held jointly and severally liable for economic damages because the decedent's negligence exceeded the county's percentage. Because the county was not jointly and severally liable, it was not entitled to a setoff for any portion of the settlement with the other defendant.

Insurance -- Arbitration

Young v. Dharamdass
22 Fla. L. Wkly. D1415 (Fla. 3d DCA 1997)

A clause in an insurance policy that says "either party may make a written demand for arbitration" is permissive, not mandatory; it does not require that all claims be resolved through arbitration.

Insurance -- Fraud

State v. Marks
22 Fla. L. Wkly. S438 (Fla. 1997)

The statutory provision making it a crime to give "incomplete" information to an insurance company is unconstitutionally vague as applied to an attorney in the representation of his client. Note that this does not allow dishonesty in discovery; but it does allow some leeway in presuit negotiations. Remember, just because something is not criminal doesn't mean it's right.

Congratulations to Robert Glazier for his excellent amicus work in this case on behalf of the AFTL.

Insurance -- PIP

Watson v. Prudential Property & Casualty Ins. Co.
22 Fla. L. Wkly. D1439 (Fla. 3d DCA 1997)

An airline employee injured while boarding a shuttle bus which was owned by the county and used to transport airport employees from the employee parking lot to the terminal was entitled to PIP coverage. The general public was prohibited from parking in the employee parking lot and did not have access to the shuttle bus. Therefore, it was not used in "mass transit" under that exclusion in 627.732(1).

Jury Trial

Christiania Holding, Inc. v. Koalick
22 Fla. L. Wkly. D1437 (Fla. 3d DCA 1997)

The trial court departed from the essential requirements of law in denying a motion to set the case for jury trial, even though the request was untimely, where the party requesting the jury trial demonstrated that it would "impose no injustice on [their] adversar[ies] and further will not unreasonably inconvenience the court ...".


Gilchrist Timber Co. v. ITT Rayonier,
22 Fla. L. Wkly. S365 (Fla. 1997)

The Florida Supreme Court has recognized a cause of action for negligent misrepresentation in a commercial sale of real estate, holding that comparative negligence is an affirmative defense. The court adopts the rule in the Restatement (Second) of Torts 552 (1977):

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. The rule adopted requires a kind of privity; the plaintiff must be someone to whom the defendant intended to supply the information, or to whom the defendant knew the recipient would supply it. The damages suffered must result from a transaction the defendant intended to influence, or a "substantially similar transaction."

The court reaffirms its decision in Johnson v. Davis, 480 So.2d 625 (Fla. 1985), which recognized such claims in non-commercial real estate transactions, such as the purchase of a home. The court again notes, as it did in Johnson, that "the law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it."

The recipient of information "will not have to investigate every piece of information furnished; a recipient will only be responsible for investigating information that a reasonable person in the position of the recipient would be expected to investigate." Although the court maintains the requirement of reasonable reliance, it seems to hold that the issue is one of comparative negligence. So negligence by the plaintiff would not necessarily defeat liability entirely.

As an example of comparative negligence, the court suggests that the buyer may have a duty to tell the seller what the buyer intends to do with the property and inquire whether that is a permitted use.

This case probably was to be expected after the decision in P.K. Ventures, Inc. v. Raymond James & Assoc., 22 Fla. L. Wkly. S175 (Fla. 1997), holding that the economic loss rule does not bar a cause of action for the independent tort of negligent misrepresentation in a commercial real estate transaction.

New Trial

E.R. Squibb & Sons, Inc. v. Farnes
22 Fla. L. Wkly. S348 (Fla. 1997)

Even though there was evidence to support the verdict in favor of the plaintiff in this product liability case, it was error for the DCA to reverse the trial court's order granting a new trial because the trial court properly considered the credibility of the witnesses along with all the other evidence. If reasonable persons could differ as to the propriety of the trial court's decision, then that decision is not unreasonable and not an abuse of discretion.

In this case, although there was evidence to support the plaintiff's claim, there was also uncontroverted evidence that risk of the plaintiff's condition had not been tied to the type of flu vaccine used on the plaintiff, and the plaintiff's expert gave no particular basis for his opinion that the warning on the insert in the package of the medication was inadequate.

Premises Liability

Landrum v. John Doe Pit Digger
22 Fla. L. Wkly. D1716 (Fla. 2d DCA 1997)

The plaintiff's child drowned in an artificial lake. The plaintiff alleged that a defendant's lake, on its property and dug by another defendant, had a vertical eight foot drop-off which could not be seen when the lake was full, and that the sides of the lake were composed of crumbly, soft clay-like material which made it difficult for a person to get out of the lake. The plaintiff contended these conditions constituted a hidden trap.

The trial court erroneously dismissed the complaint, because the plaintiff sufficiently alleged the existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff; a breach of the duty, and injury or damage to the plaintiff proximately caused by the breach.

Barrio v. City of Miami Beach
22 Fla. L. Wkly. D1727 (Fla. 3d DCA 1997)

The plaintiff was mugged while strolling on the city's beach with friends at 3:30 a.m. The City Manager testified that the city neither encouraged nor discouraged people to walk on the beach at those hours. The plaintiff was not an invitee on the defendant city's beach where the city posted a sign indicating that the beach was closed between certain hours, provided no life guards during those hours,, and did nothing to invite the plaintiff to enter or remain on the beach at 3:30 a.m. At most, the plaintiff was an uninvited licensee. The city owed her only the duty to refrain from wanton negligence or willful misconduct, to refrain from intentionally exposing her to danger, and to warn her of any defect or dangerous condition that was not open to ordinary observation.

The court seems to hold that, as a matter of law, "the danger of crime and criminal assaults is an open and obvious danger for which there is no duty to warn."


Eppler v. Tarmac America, Inc.
22 Fla. L. Wkly. D1559 (Fla. 1st DCA 1997)

The court certifies to the Supreme Court the question:

Does the testimony of the defendant of a sudden unexpected stop immediately after starting forward constitute sufficient evidence to overcome the presumption of negligence which attaches in a rear-end collision?


Krischer v. McIver
22 Fla. L. Wkly. S443 (Fla. 1997)

In a thoughtful and difficult decision, the Supreme Court holds that the Privacy Clause of the Florida Constitution does not protect a right to physician-assisted suicide. The patient's rights are outweighed by the state's interests in preserving life, preventing suicide and maintaining the integrity of the medical profession. Among the factors the court considers are the "increasing financial incentives to limit care". The court notes the "serious and unsurmountable risks of mistake and abuse that would greatly outweigh any benefit that might be achieved." The court also rejects an equal protection argument.

Products Liability

K-Mart Corp. v. Kitchen
22 Fla. L. Wkly. S435 (Fla. July 17, 1997)

The Supreme Court, in a thorough opinion by Justice Anstead, holds that the seller of a firearm to a purchaser known to the seller to be intoxicated can be held liable to a third person injured by the purchaser.

In McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), the court held that to bring a common law action for negligence, the "'minimum threshold legal requirement for opening the courthouse doors' is a finding that the defendant's alleged actions created a foreseeable 'zone of risk' of harming others." In this case, the court viewed the question to be whether "the risk of danger is sufficient to create a duty on the part of a provider of a firearm not to give a firearm to someone the provider knows or should know is intoxicated." The court expressly adopts Restatement of Torts, Second, 390, and applies it to this situation. That section states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to him.

The court distinguishes Horne v. Potamkin Chevrolet, 533 So.2d 261 (Fla. 1988) (no liability for selling car to purchaser known to be a bad driver, who got into accident during test drive) and Bankston v. Brennan, 507 So.2d 1385 (Fla. 1987) (no liability for social host who serves drinks to intoxicated person who then causes accident). In each of those cases, there was a statute limiting civil liability. In this case, there is no statute limiting civil liability, only criminal statutes prohibiting the sale of guns to minors or mentally incapacitated persons. The court points out that Restatement 288C states that "compliance with a legislative enactment or administrative regulation does not prevent a finding of negligence where a reasonable [person] would take additional precautions."

The court also holds that a firearm is a dangerous instrumentality; therefore, a person who handles or deals in firearms is expected to use the "highest degree of care". Further, Florida public policy is clear "in its recognition and disapproval of the deadly combination of alcohol and firearms". Therefore, gun dealers should be held accountable when they sell guns to intoxicated persons. Some of the DCAs have recognized this cause of action since 1978.

Punitive Damages

Dessanti v. Contreras
22 Fla. L. Wkly. D1465 (Fla. 4th DCA 1997)

The Supreme Court's decision in W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla. 1994) requires bifurcation of the determination of the amount of punitive damages form the issue of negligence, compensatory damages, and liability for punitive damages. It does not require bifurcation of the issue of liability for punitive damages from the issue of liability for compensatory damages. The purpose of bifurcation is to separate financial issues from liability issues.


Figgie Int'l v. Alderman
22 Fla. L. Wkly. D1721 (Fla. 3d DCA 1997)

The Third District affirmed, and adopted it its entirety, the decision of Judge Murray Goldman which struck the defendant's pleadings and entered a default against the defendant. The opinion detailed egregious, willful, bad faith discovery abuses and false testimony by the defendant.

The court noted that the defendant, served with discovery requests, had a duty to preserve documents. The ultimate sanctions of dismissal or default are justified by the repeated presentation of false testimony which is finally uncovered by the assiduous efforts of opposing counsel. The court had inherent authority to enter the order even if the defendant's actions did not violate a specific court order. The court found that no other sanction would be adequate to restore the plaintiffs to the position they otherwise would have occupied.

It was my great pleasure to work on this appeal with Roy Wasson and Susan Lerner, and with our trial lawyers, David Mishael, Arno Kutner, Larry Rodgers and Steve Epstein.

Sovereign Immunity

Lee v. Dept. of Health and Rehab. Services
22 Fla. L. Wkly. S354 (Fla. 1997)

This was an action by the guardian of a severely retarded resident of an HRS facility who became pregnant while in HRS care. The court held that the state could not be held liable for its negligence in establishing the level of supervision at the facility. Mentally retarded patients are entitled by statute to an existence as close to normal as possible. 393.06, Florida Statute. The function of assigning employees to supervise and care for the mentally disabled is a discretionary, policy-making type of decision for which HRS is immune. However, HRS is not immune form a claim that HRS employees improperly performed their assigned duties, if, for example, they witnessed instances of sexual abuse against the patient and failed to take appropriate remedial steps.