October 1995


Noel v. North Broward Hospital District
20 Fla. L. Wkly. D2205 (Fla. 4th DCA 1995)

This case was first reported in April, 1995 Case Law Update. On rehearing, the court certifies to the Supreme Court the question "whether immunity pursuant to Florida Statute 768.28 should be granted to physician consultants who contract with the Department of Health and Rehabilitative Services, Childrens Medical Services." The court reversed the summary judgment entered by the trial court in favor of the physicians, but on rehearing affirmed the summary judgment for one P.A. because it had no relationship with H.R.S. As to the other defendants, the court held that whether the doctors were agents of H.R.S. and therefore entitled to sovereign immunity was a question of fact for the jury.

As I discussed in the April issue, all of the CMS facilities are staffed by consultants who are required to carry their own insurance and spend less than one day a week at the clinics, maintaining their own private practices. The consultants are generally unsupervised, but ultimate authority resides with the director of CMS who can refuse to pay for proposed therapy or treatment with which he disagrees.

This case, which is now on its way to the Supreme Court, may have implications for HMO liability.

Assumption of Risk

City of Miami v. Cisneros
20 Fla. L. Wkly. D2086 (Fla. 3d DCA 1995)

The plaintiff child was injured while playing football on a team sponsored by the city. The child weighed 75 pounds, and was tackled by an opponent weighing 128 pounds. The parents claimed they had been promised the child would not play against anyone over 90 pounds. The coach denied the promise and said the parents had signed a waiver and consent form, which the city was unable to locate.

The court held that the defense of express assumption of the risk was not a bar to the action because the claim was essentially one for negligent supervision by the coach. Express assumption of risk bars only those risks inherent in a contact support. The risk of negligent supervision was not inherent in the sport itself. Therefore, the claims were properly evaluated under principles of comparative negligence, not under assumption of the risk.

Civil Rights

City of Hialeah v. Hernandez
20 Fla. L. Wkly. D2215 (Fla. 3d DCA 1995)

This was a civil rights action under 42 U.S.C. 1983 for violation of the plaintiff’s civil rights during his arrest. The court held that the police officer and police chief were entitled to qualified immunity from suit where they did not violate any right of the plaintiff that was clearly established at the time. See also Bain v. City of Hialeah, 646 So.2d 771 (Fla. 3d DCA 1995).


North American Van Lines, Inc. v. Ferguson Transportation, Inc.
20 Fla. L. Wkly. D2155 (Fla. 4th DCA 1995)

The plaintiff obtained a judgment for $1.3 million compensatory damages and $13 million punitive damages. The appellate court affirmed the compensatory damages but reversed the punitive damages. The court held that, for purposes of taxing appellate costs, the defendant was the prevailing party, because it "prevailed on the significant issues litigated on appeal".

Economic Loss Rule

HTP, Ltd. v. Lineas Aereas Costarricenses
20 Fla. L. Wkly. D2086 (Fla. 3d DCA 1995)

A claim for fraud in the inducement is an independent tort which is not barred by the economic loss rule. Additionally, the defendants were not entitled to a jury instructions on unjustifiable reliance on representations made when negotiating an existing controversy involving fraud or dishonesty, where the misrepresentation in the negotiation was made by an undisclosed agent.

Emotional Distress

Zell v. Meek
20 Fla. L. Wkly. S515 (Fla. 1995)

In this premises liability action, the plaintiff alleged that the owners and managers of an apartment complex failed to protect tenants and invitees from foreseeable criminal conduct after they received bomb threats but failed to warn the tenants. The plaintiff’s father was killed in a bombing. The plaintiff witnessed the bombing but did not suffer any serious physical injuries at the time. Approximately nine months later, the plaintiff began to suffer physical symptoms including stomach pains, irritable bowel syndrome, joint pains and depression. Her doctor testified that the symptoms were caused by her depression resulting from her father’s death. The court held that the impact rule does not bar her claim. The interval of time is just one factor for the jury to consider in determining causation.

The court reiterated the elements of a claim for negligent infliction of emotional distress caused by injury to another person: (1) the plaintiff must suffer a physical injury; (2) the plaintiff’s injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.

Evidence -- Videotapes

Cave v. State
20 Fla. L. Wkly. S484 (Fla. 1995)

It was error to admit into evidence a videotape dramatized reenactment of the crime. The state offered the video to prove the remoteness of the murder location and the amount of time it took to drive the victim there. The court held that the videotape was not relevant in the sentencing proceeding, cumulative, and highly prejudicial. This does not mean that all videotaped reenactments will be inadmissible, but they must be carefully weighed under 90.403.


Rea v. Barton Protective Services, Inc.
20 Fla. L. Wkly. D2114 (Fla. 4th DCA 1995)

A cross claim by defendants for contribution in a tort action involving negligent security is not barred by Fabre because "under some circumstances they could still be required to pay plaintiff more than their percentage of determined fault." The court does not describe what those circumstances are.

State Farm v. Lynch
20 Fla. L. Wkly. D2212 (Fla. 3d DCA 1995)

Where there was evidence that the accident happened because the tortfeasor was trying to avoid a non-party jogger, the uninsured motorist carrier was entitled to have the jogger on the verdict form. The UM carrier was also entitled to a setoff of the plaintiff’s settlement with the tortfeasor and the tortfeasor’s insurance carrier.

Insurance -- UM

Bulone v. United Services Automobile Assoc.
20 Fla. L. Wkly. D2144 (Fla. 2d DCA 1995)

This court denies uninsured motorist coverage to a passenger. The court holds that a family automobile insurance policy was not required by 627.727 to provide class II underinsured motorist coverage whenever the passenger’s total damages exceed the policy’s liability limits. The court certifies conflict with Travelers Ins. Co. v. Chandler, 569 So.2d 1337 (Fla. 1st DCA 1990) and Warren v. Travelers Ins. Co., 650 So.2d 1082 (Fla. 1st DCA 1995), review granted July 6, 1995.

Jury Selection

Cruz v. State
20 Fla. L. Wkly. D2169 (Fla. 3d DCA 1995)

The state’s objection, when the defendant tried to exercise a peremptory challenge, that the defendant had stricken "four Latin women" was sufficient to require an inquiry by the court under State v. Neil, 457 So.2d 481 (Fla. 1984). After the court ruled that the juror would sit on the jury, the defendant accepted the panel without reservation. The court held the defendant waived this issue by accepting the jury without any reservations.


City of Miami v. Cisneros
20 Fla. L. Wkly. D2086 (Fla. 3d DCA 1995)

In an action for injuries to a minor, the trial court properly allowed the plaintiffs to amend the complaint to add the parents as plaintiffs for the purpose of recovering medical expenses, and the amendment related back to the date of the filing of the complaint. An amendment adding parties relates back if it can be said that the new and former parties have an identity of interest, so as not to prejudice the opposing party. Moreover, no separate notice had to be filed under the sovereign immunity statute.

Sullivan v. Fulton County Administrator
20 Fla. L. Wkly. D2112 (Fla. 4th DCA 1995)

The statute of limitations was not tolled by fraudulent concealment where the defendant denied his involvement in his wife’s murder and suggested to police that his wife was involved in drug dealing and the murder might be a drug hit, and also suggested several other suspects. The court distinguishes between concealing the cause of action, which tolls the statute of limitations, and concealing the identity of the perpetrator, which does not. However, the court certifies to the Supreme Court the question of whether statutes of limitations for civil actions are tolled by fraudulent concealment of the identity of the defendant.


Clements v. Clements
20 Fla. L. Wkly. D2207 (Fla. 3d DCA 1995) (en banc)

The trial court may not accept and ratify a general master’s report without a written report of the evidence. The master has the obligation to create an accurate and complete written record or ensuring that someone else does. The responsibility cannot be delegated to the parties. It is not enough to have a court reporter present without having the hearings transcribed and filed with the master’s report.

Med Mal -- Birth Related Neurological Injuries

Braniff v. Galen of Florida, Inc.
20 Fla. L. Wkly. D2140 (Fla. 1st DCA 1995)

The Florida Birth Related Neurological Injury Act, 766.301-766.316, sets up an administrative remedy for such injuries and precludes tort suits for them. However, 766.316 requires participating doctors to post a notice informing patients about it. This court holds that the failure to give the required notice precludes the doctor from relying on the administrative remedy to preclude the tort suit. The court certifies the question, as did the Fifth DCA in Turner v. Hubrich, 20 Fla. L. Wkly. D1529 (Fla. 5th DCA 1995).

Med Mal Presuit

Palm Springs General Hospital v. Perez
20 Fla. L. Wkly. D2085 (Fla. 3d DCA 1995)

The plaintiff was not required to comply with presuit requirements where the complaint alleged, in effect, a premises liability case arising out of a criminal attack by a third party, another patient, who sexually assaulted the plaintiff.

Be extremely careful using this case. See the Goldman case, discussed below.

Goldman v. Halifax Medical Center
20 Fla. L. Wkly. D2120 (Fla. 5th DCA 1995)

The plaintiff was required to comply with presuit requirements in a case involving a radiology technologist applying excessive pressure in performing a mammogram, causing the plaintiff’s breast implant to rupture. Compliance was required, even though the technologist was not a "health care provider" under the statute, because the hospital itself was a health care provider. It is not necessary for the active tortfeasor to be a health care provider.

Nursing Home

Beverly Enterprises-Florida, Inc. v. Spilman
20 Fla. L. Wkly. D2228 (Fla. 5th DCA 1995)

In a wonderful decision upholding the intent of the legislature to protect nursing home patients under 400.023, Florida Statutes, the Fifth DCA has held that it is not open season on helpless old people. The court held that the damages available under that statute are not limited by the wrongful death act. Thus, the plaintiff may recover both wrongful death damages and pain and suffering damages when the nursing home’s deprivation of the patient’s rights results in the patient’s death. The court also upheld the award of punitive damages, based on the "deplorable" treatment of the deceased by the nursing home, which was grossly understaffed. The patient died from "one of the worst cases of bedsores" his treating doctor had ever seen.

The court rejected the nursing home’s argument that the patient was so old and ill that he was going to die anyway.

In a concurring opinion, Judge Sharp stated, "we must should never cease to be shocked by Man’s inhumanity to Man, no matter the circumstances. And, a remedy must always be afforded."

Offer of Judgment

Deleuw, Cather & Co. v. Grogis
20 Fla. L. Wkly. D2154 (Fla. 4th DCA 1995)

The offer of judgment statute, 768.79, does not apply to an offer made while an appeal of a cost judgment is pending. The court suggests that the statute does not apply during any post-judgment appellate proceeding.


Ferris v. Ferris
20 Fla. L. Wkly. D2153 (Fla. 4th DCA 1995)

It was error to grant judgment on the pleadings based on the affirmative defense of res judicata where the plaintiff did not file a reply to the affirmative defense. Where no reply is filed, the affirmative defense is deemed denied.