October 1998

Amendment — Relation Back

Williams v. Totura & Co., Inc.
23 Fla. L. Wkly. D2266 (Fla. 3d DCA 1998)

An amended complaint relates back to the date a motion to amend is filed; the timely filing of the motion defeats a statute of limitations defense. The court also holds that it was improper to dismiss for failure to serve the new defendants within 120 days of filing the motion to amend, because the clerk will not even issue the process until the court grants the motion to amend. Therefore, the 120 days cannot begin to run until the order granting leave to amend is entered. The court certifies conflict with Frew v. Poole & Kent Co., 654 So.2d 272 (Fla. 4th DCA 1995).

Business Interference

Gossard v. Adia Services, Inc.
23 Fla. L. Wkly. S539 (Fla. 1998)

Florida law recognizes a claim for tortious interference with a business relationship against a corporation which purchases as a subsidiary a corporation which has a preexisting obligation not to compete against its franchisee, the plaintiff, and subsequently purchases another subsidiary which is in direct competition with the franchisee.

Civil Rights — Qualified Immunity

Gentile v. Bauder
23 Fla. L. Wkly. S488 (Fla. 1998)

Under the doctrine of qualified immunity, a government official is immune from suit for a civil rights violation if a reasonable official in his position would have believed, in light of clearly established precedent, that his actions were lawful at the time of the alleged violation. This doctrine has eviscerated the protections of 42 U.S.C. 1983 in many cases.

In this case, the court held that the law enforcement officer was not collaterally estopped from raising the affirmative defense of qualified immunity by the trial court’s finding at the suppression hearing in the underlying criminal case that the search warrant obtained by the officer was based on an affidavit that did not contain sufficient evidence to establish probable cause. The officer was not a party to the criminal prosecution and was not in privity with the state, and the issues were not identical. In the criminal case, the issue was whether the affidavit contained sufficient evidence to establish probable cause; in the civil rights action, the issue was whether a reasonable police officer could have believed, in light of established precedent, that the facts contained in the affidavit amounted to probable cause.

Damages — Sufficiency

Avakian v. Burger King Corp.
23 Fla. L. Wkly. D2147 (Fla. 4th DCA 1998)

The difference between an inadequate verdict and an inconsistent verdict is often difficult to discern. If the verdict is inconsistent, you must object before the jury is discharged so they can be sent back to deliberate. If the verdict is inadequate, the issue can be raised by motion for additur or new trial. Here, the jury first awarded zero noneconomic damages. The plaintiff objected; the trial court sent the jury back to deliberate again and the jury returned with a figure of $1.00 for past and $1.00 for future noneconomic damages. Over the plaintiff’s objection, the trial court sent the jury back again to come back with a “realistic” figure, which the plaintiff argued was inadequate. The court of appeal held that it was error for the trial court to send the jury back a second time. The inadequacy should have been addressed by post trial motion for additur or new trial. Here, a new trial is required.

Depositions — Use at Trial

In Re: Amendments to Florida Rules of Civil Procedure
23 Fla. L. Wkly. S509 (Fla. 1998)

Rule 1.330(a)(1) has been amended to clarify that a deposition may be used by any party “for any purpose permitted by the Florida Evidence Code.”

Evidence — Videotape

Campoamor v. Brandon Pest Control, Inc.
23 Fla. L. Wkly. D2289 (Fla. 2d DCA 1998)

It was error to admit, and to allow into the jury room, a videotape, including a computer animation, purporting to depict the process by which the defendant purportedly applied pesticide to the plaintiffs’ residence. The videotape, approximately 15 minutes long, showed the defendant’s employee demonstrating his equipment and circling the residence, pointing out the holes he had drilled and explaining what he did, along with animations showing the proper application of the pesticide. The court held that the video amounted to nothing more than a self-serving, one-sided video deposition without any opportunity for the opposing party to participate.


Burklow & Associates, Inc. v. Belcher
23 Fla. L. Wkly. D2170 (Fla. 1st DCA 1998)

Under Fla. Stat. 327.59, enacted after Hurricane Andrew, a marina is prohibited from requiring removal of boats on the issuance of a hurricane watch or warning. The court held that the statute prohibits a cause of action by a marina owner against a boat owner for damages caused by the boat owner’s failure to remove a boat from the marina after issuance of a hurricane warning. The boat owner owes a duty of reasonable care to try to protect the marina from damage, but does not have a duty to move the boat, even if the contract provides such a requirement.

Insurance — Accident

State Farm v. CTC Development Corp.
23 Fla. L. Wkly. S527 (Fla. 1998)

Receding from Hardware Mut. Cas. Co. v. Gerrits, 65 So.2d 69 (Fla. 1953), the court holds that, where the term “accident” is undefined in a liability policy, the term includes not only “accidental events,” but also “damages or injuries that are neither expected nor intended from the viewpoint of the insured.” Here, where the insured mistakenly believed that he had received a variance for setback requirements and built a home impinging on the setback, but did not openly defy the setback requirements, there was coverage. The court holds that “coverage under this definition would be provided not only for an accidental event, but also for the unexpected injury or damage resulting from the insured’s intentional acts.”

Insurance — Arbitration

Delta Cas. Co. v. Pinnacle Medical, Inc.
23 Fla. L. Wkly. D2233 (Fla. 5th DCA 1998) (en banc)

The court en banc holds that the PIP arbitration statute, 627.736(5) violates the due process clause and the right of access to courts. The statute provides that a medical provider who accepts a PIP assignment must submit the claim to arbitration.

Jury Instructions

Standard Jury Instructions — Civil Cases 23 Fla. L. Wkly. S531 (Fla. 1998)

The Supreme Court has adopted revisions to the standard jury instructions. “Contributory” negligence is changed to “comparative” negligence. The word “responsibility” is added to “negligence” and “fault” in the Fabre apportionment of fault instruction, with a suggestion that “responsibility” be used in strict liability cases.

In the med mal statute of limitations instruction, the court adds this note: “In some cases it may be necessary to insert the name of a person other than the claimant,” referring to whose knowledge may trigger the statute. The Committee cites Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995) and Arthur v. Unicare Health Facilities, Inc., 602 So.2d 596 (Fla. 2d DCA 1992), both of which concern what happens to the knowledge requirement when the patient is unconscious, incompetent or dead. (These are terrific cases talking about the need for knowledge by a guardian or personal representative).

In the damages instruction, the jury will now be instructed that “The court in entering judgment will take into account your allocation of [negligence] [fault] [responsibility] among all persons [or entities] who you find contributed to (claimant’s) damages.” The committee notes that “There is support for giving a special instruction explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases. See Seminole Gulf Railway, Ltd. Partnership v. Fassnacht, 635 So.2d 142, 144 (Fla. 2d DCA 1994) (Altenbernd, J. concurring in part and dissenting in part) and Slawson v. Fast Food Enterprises, 671 So.2d 255, 260 Fla. 4th DCA), rev. dismissed, 679 So.2d 773 (Fla. 1996).”

As the law gets more and more convoluted, so do the instructions.

Jury Interview

United States Fire Ins. Co. v. Bellefeuille
23 Fla. L. Wkly. D2190 (Fla. 4th DCA 1998)

The appellate court denied a defendant’s motion to relinquish jurisdiction to the trial court to conduct a jury interview where the information was available to the plaintiff before the trial court ruled on post trial motions. The court held that the motion was untimely where it was not made until two months after the verdict, because the plaintiff could not show good cause for serving the motion more than ten days after the verdict as required by Rule 1.431(h).

Limitations — Repose

Barnes v. Clark Sand Co., Inc.
23 Fla. L. Wkly. D2270 (Fla. 1st DCA 1998)

The court certifies to the supreme court the following question of great public importance: “Is the exception established in Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 1981), still viable in view of the court’s recent decisions holding the medical malpractice statute of repose constitutional?”

In Diamond, the supreme court held in a products liability case that a statute of repose was unconstitutional as applied because it barred the plaintiff’s right of action “before it ever existed” and therefore “violated the Florida Constitution’s guarantee of access to courts.” However, in medical malpractice cases, such as Damiano v. McDaniel, 689 So.2d 1059, the court has allowed the med mal statute of repose to foreclose a cause of action before it accrues because of the legislature’s specific finding of overwhelming public necessity.

Here, the court holds it was error to enter summary judgment in favor of the defendant on the grounds of the statute of repose where there was a factual issue as to when the plaintiff’s injury “manifested” itself. The court states that manifestation necessarily presupposes the plaintiff’s knowledge of the relationship between the symptoms of the disease and the exposure to the allegedly defective product.

Premises Liability

Fontana v. Wilson World Maingate Condominium
23 Fla. L. Wkly. D2165 (Fla. 5th DCA 1998)

The plaintiff presented evidence that the chair in the defendant’s hotel was defective and collapsed, injuring her, and that the defendant had no inspection procedure for inspection and maintenance of his furnishings. There was also evidence that a rusty scissor was found under the chair, suggesting that the chair had not been moved in some time. The court held that it was error to direct a verdict in favor of the defendant, and the case should have gone to the jury on the issue of the defendant’s negligence.

Hyatt Corp. v. KBJ Architects, Inc.
23 Fla. L. Wkly. D2166 (Fla. 5th DCA 1998)

This is an interesting twist on Slavin v. Kay, 108 So.2d 462 (Fla. 1958), which holds that an architect is not liable for any defect in construction which is patent and has been accepted by the owner. The plaintiff fell on an unmarked step-down which did not have appropriate illumination or color, such as lighting strips. However, there was no evidence of who was responsible for placing the lighting strips on the step. Therefore, it was error to enter summary judgment in favor of the architect

Res Ipsa Loquitur

McDougald v. Perry
23 Fla. L. Wkly. S435 (Fla. September 4, 1998)

In this case involving a spare tire that came loose from its cradle, flew through the air and hit the plaintiff, the Supreme Court explains the applicability of the doctrine of res ipsa loquitur. The court finds that the Second District below, and the Third District in Burns v. Otis Elevator Co., 550 So.2d 21 (Fla. 3d DCA 1989), read the doctrine too narrowly. While res ipsa is a “rare” doctrine, it may be applied without a showing by the plaintiff that all other causes are eliminated. The doctrine “provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting .... [T]he injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.” quoting Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341-42 (Fla. 1978). This language does not require the plaintiff to present expert testimony that the accident would not have occurred unless the defendant were negligent. The jury may make such an inference from “the facts of an accident in and of themselves.” The court cautions that the doctrine only applies in “rare instances.” It is appropriate here because the chain and the device securing the spare tire, the likely cause of the accident, were in the exclusive possession of the defendant and were not preserved.

In the words of one court, “Thousands of automobiles are using our streets, but no one expects the air to be filled with flying hubcaps.” Wilson v. Spencer, 127 A.2d 849 (D.C. 1956).

In his concurring opinion, Justice Anstead quotes Byrne v. Boadle, 2 Hurlet & C. 722, 159 eng. Rep. 299 (Ex. 1863), the res ipsa case that most of us studied in law school, in which the court held that a barrel would not usually fall from a window in the absence of negligence: “the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to [show] that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.”


Cooper v. Lewis
23 Fla. L. Wkly. D2212 (Fla. 5th DCA 1998)

It was error to strike the defense IME doctor from the defense witness list based on the doctor’s refusal to comply with a court order to produce IME’s relating to other patients,based on privacy concerns. It is wrong to sanction a party for the actions of a witness, or to impose costs on the defendant for the misconduct of a nonparty. The court does not explain how the prejudice to the plaintiff can be cured.

Service of Process

Wong v. Gonzalez & Kennedy, Inc.
23 Fla. L. Wkly. D2137 (Fla. 4th DCA 1998)

Service of process on the registered agent of a dissolved corporation is valid under the 1997 amendment to Fla. Stat. 48.101. The court certifies conflict with Polk County Rand Investments v. State Dept. Of Legal Affairs, 666 So.2d 279 (Fla. 2d DCA 1996) and Stoeffler v. Castagliola, 629 So.2d 196 (Fla. 2d DCA 1993), both of which were decided before the amendments to the statute. Prior to the amendment, service on one or more of the directors was the only way to serve a dissolved corporation.

Successor Tortfeasors

Gross v. Lyons
23 Fla. L Wkly. D2185 (Fla. 4th DCA 1998)

The court certifies to the Supreme Court the following question: Where a plaintiff is involved in two unrelated accidents and sues only the tortfeasor in the first accident, are the principles of apportionment contained in C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694, 696 (1937), and Washewich v. LeFave, 248 So.2d 670, 672 (Fla. 4th DCA 1971) applicable?


Nichols v. Benton
23 Fla. L. Wkly. D2281 (Fla. 1st DCA 1998)

It was reversible error, in a brain damage case, to allow the defendant to introduce evidence of the plaintiff’s past alcohol and marijuana use, where there was no evidence that the use caused the plaintiff’s present medical condition or affected his neuropsychological testing. The trial court had ruled that the evidence was relevant to show that the plaintiff’s memory problems could be related to substance abuse, but the evidence showed that the plaintiff was not using substances sufficiently to affect his condition; the evidence of substance abuse was prejudicial and required a new trial.