March 2002

Church Immunity

Doe v. Evans
27 Fla. L. Weekly S229 (Fla. 2002)

The First Amendment does not bar claims for negligent hiring and supervision and breach of fiduciary duty against a religious institution based on alleged sexual misconduct by one of its clergy with a parishioner in the course of an established marital counseling relationship. Where the church, through its clergy, holds itself out as qualified to engage in marital counseling, and a counseling relationship arises, the relationship is a fiduciary one. A cause of action exists for breach of that fiduciary relationship. It is for a jury to determine whether a fiduciary relationship arose and whether the church breached its fiduciary duty. Allowing the claim to proceed does not violate either the Free Exercise or the Establishment Clause of the First Amendment. Evaluation of whether a fiduciary relationship arose and whether fiduciary duty was breached does not require an adjudication of religious doctrine or beliefs, and does not infringe on religious practices of the church.

Malicki v. Doe
27 Fla. L. Weekly S234 (Fla. 2002)

The First Amendment does not bar an action against the Catholic Church and Archdiocese for negligent hiring and supervision of a priest who allegedly sexually assaulted and battered an adult and a child parishioner, both of whom were working for the church at the time. The dispute is not an ecclesiastical one about “discipline, faith, internal organization, or ecclesiastical rule, custom or law;” rather it is ia purely secular dispute between third parties and a particular defendant which happens to be a religiously affiliated organization. “Our holding today is only that the First Amendment cannot be used at the initial pleading stage to shut the courthouse door on a plaintiff’s claims, which are founded on a religious institution’s alleged negligence arising from the institution’s failure to prevent harm resulting from one of its clergy who sexually assaults and batters a minor or adult parishioner.”

Comparative Fault – Product Liability

D’Amario v. Ford Motor Co.
26 Fla. L. Weekly S772 (Fla. 2001)

Principles of comparative fault concerning apportionment of fault as to the cause of the underlying crash will not ordinarily apply in crashworthiness or enhanced injury cases. Because the manufacturer alleged to be responsible for a defective product that results in a second accident and injury ordinarily may not be held liable for the injuries caused by the initial accident, the fault of the manufacturer may not be compared or apportioned with the fault of the driver of the vehicle who allegedly caused the initial crash.

These kinds of case “involve both an initial accident and a subsequent or secondary collision caused by an alleged defective condition created by a manufacturer, which is unrelated to the cause of the initial accident but which causes additional and distinct injuries beyond those suffered in the primary collision.” This decision involved two consolidated cases. In the first case, the plaintiff, a child, was injured when the car in which he was a passenger was driven into a tree by a drunk driver. The car, because of a defective switch, burst into flames. The plaintiff did not sue for the damages from the original collision, but for the burns resulting from the fire caused by the defective switch. In the second case, a seat belt failed, causing a death which otherwise allegedly would not have occurred.

The court analogizes to medical malpractice cases where (1) the cause of an initial injury which requires medical assistance is not ordinarily considered a legal cause of injuries resulting from the subsequent negligence of the medical care provider; and (2) an initial wrongdoer who causes an injury is not a joint tortfeasor with a subsequent negligent medical provider whose negligent enhances or aggravates injuries caused by the initial tortfeasor. See Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977). However, the initial tortfeasor is still held liable for the subsequent negligence.

The court holds that a defendant manufacturer in a crashworthiness case will be entitled in appropriate cases to have the jury told that no claim is being made for damages arising out of the initial accident and that the manufacturer should not be held liable for damages caused by the initial collision. This will allow the jury to hold the manufacturer responsible only for damages caused by its own fault, but will not confuse the jury with issues about the cause of the underlying accident.

“An automobile manufactuerer who allegedly designed a defective product may not be held liable for damages caused by the initial collision and may not apportion its fault with the fault of the driver of the vehicle who caused the initial accident.”

It was error to allow the introduction of evidence of the non-party driver’s intoxication.

Emotional Distress – Impact Rule

Hagan v. Coca-Cola Bottling Co.
26 Fla. L. Weekly S812 (Fla. 2001)

The plaintiffs drank some soda from a bottle and then discovered what appeared to be a used condom in the bottle with “oozy stringy stuff” coming out of it. The court held that the impact rule did not preclude their claim for negligent infliction of emotional distress caused by the consumption of a foreign substance in a drink, even though they had no accompanying physical injuries. (The plaintiffs both were tested for HIV and came out negative).

Forum Non Conveniens

Bacardi v. Lindzon
27 Fla. L. Weekly S124 (Fla. 2002)

In Kinney Systems, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), the Florida Supreme Court adopted the doctrine of forum non conveniens, codified in Fla. R. Civ. P. 1.061. This doctrine allows the court to dismiss a case if “a satisfactory remedy may be more conveniently sought” in another jurisdiction. The court must find that “an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties.” Here the Court holds that, where a case consists of separate and distinct counts, each of which could be adjudicated separately, and each of which could be brought in a different forum, the court may sever the counts and dismiss the case to two separate alternative fora. (Note that a defendant who seeks this kind of dismissal must waive a statute of limitations defense.}


M/I Schottenstein Homes, Inc. v. Azam
27 Fla. L. Weekly S190 (Fla. 2002)

Statements concerning facts in the public record can form the basis for a cause of action for fraud, unless the fact is one contained in the chain of title. Allegedly false statements about facts that are contained in the public record create a question of fact for the jury that must be resolved on a case by case basis. Property owners had a claim against the developer for fraud in the inducement for misrepresenting that a parcel of land nearby was a nature preserve and would be left permanently in that state, where the developer knew the County was going to build a school there. The court reaffirms Besett v. Basnett, 389 So.2d 995 (Fla. 1980) (recipient of fraudulent misrepresentation of fact is justified in relying on its truth although he might have ascertained its falsity had he made an investigation); Johnson v. Davis, 480 So.2d 625 (Fla. 1985) (cause of action for nondisclosure); and Gilchrist Timber Co. v. ITT Rayonier, 696 So.2d 334 (Fla. 1997) (doctrine of comparative negligence applicable).The court disapproves Pressman v. Wolf, 732 So.2d 356 (Fla. 3d DCA 1999), in which the Third District erroneously held that a statement concerning the public record cannot form the basis for a claim of fraud.

Insurance – PIP

United Automobile Ins. Co. v. Rodriguez
26 Fla. L. Weekly S747 (Fla. 2001)

Where the payment of PIP benefits claim is overdue because the insurer has not paid benefits within 30 days after receipt of the notice of claim, and the insurer does not have reasonable proof that it is not responsible for payment, the insurer is liable for the payment of statutory interest and attorney’s fees, but may still contest the claim. Moreover, the court construes the requirement of 627.736(4) that the insurer must pay within 30 days unless it has “reasonable proof to establish that the insurer is not responsible for the payment”, as not requiring a medical report. Justice Lewis dissents, noticing that relieving the insurance company of some of its responsibility to investigate and verify the claim within 30 days may undermine the constitutionality of the statute because “prompt payment of PIP benefits as a substitute for access to courts represents one of the essential pillars upon which the constitutionality of the no-fault concept is premised.”

Jury Misconduct — Voir Dire

Roberts v. Tejada
27 Fla. L. Weekly S158 (Fla. 2002)

The Court has taken a realistic view of dealing with jurors who withhold information during trial. The court recognizes that it may not be possible for counsel to check up on the truth of the jurors’ answers during voir dire. The court must make a factual determination in each case regarding diligence.

The complaining party has the burden of proving the information is relevant and material to jury service in the case, that the juror concealed the information during questioning, and that failure to disclose the information was not due to the party’s lack of diligence. Prior litigation is not per se material and must be considered on a case by case basis. The court must also examine whether the questions would have been understood by the jurors to encompass the undisclosed information.

Offer of Judgment

Allstate Indemnity Co. v. Hingson
27 Fla. L. Weekly S69 (Fla. 2002)

An offer of settlement made to multiple plaintiffs is required under Rule 1.442 to state the amount and terms attributable to each plaintiff. The failure to apportion the offer between the amount offered for the injured plaintiff’s injuries and his wife’s claim for loss of consortium renders the offer insufficient to serve as a basis for an award of attorneys’ fees to a prevailing defendant under 768.79. This case was decided under the 1997 version of Rule 1.442 That version of the rule did not explicitly specify this requirement; the rule since has been amended to expressly include this requirement.

Premises Liability

Owens v. Publix Supermarkets
26 Fla. L. Weekly S756 (Fla. 2001)

Although this case is being haled (and criticized) as a huge change in the law, it really is just a simple step forward in the logical development of the common law. The case contains two separate holdings: (1) “where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.” (2) “If the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation then whether the owner had actual or constructive knowledge of the specific foreign substance is not an issue. The dispositive issue is whether the specific method of operation was negligent and whether the accident occurred as a result of that negligence.” A negligent mode of operation can consist of something such as failure to regularly inspect and sweep the floors, if the premises owner could reasonably anticipate that dangerous conditions would arise from its mode of operation.

The second holding, at least, has been established law in Florida for a very long time. See Wells v. Palm Beach Kennel Club, 36 So.2d 720 (Fla. 1948); Carl’s Markets, Inc. v. Meyer, 69 So.2d 789 (Fla. 1953) (“if the plaintiffs could convince the jury that the dangerous condition was created by persons connected with the store the matter of notice was inconsequential”). The legislature is being heavily lobbied by industries such as grocery stores, and it is quite possible that this decision will be modified or overturned by statute.

Res Judicata – Law of the Case

Florida Department of Transportation v. Juliano
26 Fla. L. Weekly S784 (Fla. 2001)

Res judicata does not apply to successive appeals taken in the same case. However, the doctrine of law of the case does apply. The doctrine of law of the case is more limited and more flexible. It requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceeding. Law of the case is limited to issues actually presented and considered in the appeal, as well as those implicitly addressed or necessarily considered by the appellate court decision. However a lower court is not precluded from passing on issues that have not necessarily been determined by the appellate court.

In this case, in the first appeal, the court reversed a summary judgment on the issue of whether the plaintiff was required to specifically identify the names of negligent employees in order to be entitled to invoke the “unrelated works” exception to the worker’s compensation immunity statute, 440.11(1). The court held that this did not preclude subsequent litigation over the appropriate standard of negligence applicable to supervisory employees sued under the unrelated works exception, because it was not necessarily or implicitly decided in the first appeal.


Moakley v. Smallwood
27 Fla. L. Weekly S175 (Fla. 2002)

The trial court had inherent authority to impose attorneys’ fees as a sanction against a party’s attorney, in the absence of a specific rule or statute authorizing the imposition of such fees. This is part of the trial judge’s “inherent power to do those things necessary to enforce its orders, to conduct business in a proper manner, and to protect the court from acts obstructing the administration of justice.” The sanction must be based on “an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” The court must give the attorney notice and an opportunity to be heard before imposing the sanction.