Articles Posted in Premises Liability

Businesses are expected to exercise reasonable care over their premises, providing inspection, maintenance, repairs, or warnings of any foreign object or substance. If the business fails to provide this to its customers, and this failure results in injuries, the property owner or manager can be held liable for the injuries and expenses incurred as a result. A Fourth District StorefrontCourt of Appeal case reviews the type of proof needed in a premises liability action for a successful result for the injured person in Decision No. 4D16-3413.

The plaintiff slipped on liquid laundry detergent while in a “big box” store. His injury resulted in incurred medical expenses. The injured person described the person in front of him as carrying a “leaking” laundry detergent bottle, which spilled the substance on which he slipped. The injured person filed suit against the store, alleging negligence, and won $250,000 in damages. The trial court judge denied all post-trial motions made by the store, which appealed the verdict in favor of the injured person.

The store argued on appeal that the court should have granted its motion for a directed verdict. The store claimed the injured person failed to sufficiently plead a prima facie case for negligence by using the theory of negligent mode of operation. The injured person countered that the store’s operation was negligent because of its policy of using a high-gloss finish on its floors, resulting in a constant wet-look finish. This persistent wet look makes it increasingly difficult for patrons to be able to see translucent liquids, due to the reflection off the floor caused by the bright lights.

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A successful personal injury trial for a plaintiff primarily hinges on whether or not the fact finder believes it is more likely than not the defendant(s) caused the resulting injury due to negligent behavior that falls short of a legal duty. While a jury is given great discretion in the type of facts they find to be true and supportive of a claim or defense, the trial court can make a determination at the end of each party’s presentation of evidence on whether or not the facts presented meet the set legal standard. If the facts fall short of the legal requirements for a successful claim, the court wet storefrontcan issue a directed verdict. If this occurs at the end of the trial, it can override a jury verdict.

A motion for a directed verdict in a Florida slip-and-fall lawsuit was recently considered in a Florida Third District Court of Appeal decision. The grocery store argued on appeal it was entitled to a directed verdict because the injured party’s evidence fell short of showing the store had actual knowledge of the dangerous condition or that one of its employees caused the dangerous condition to occur. The Court of Appeal agreed, reversing the million-plus jury verdict and remanding the case for a new trial.

The injured person fell during a shopping excursion with her husband. The 70-year-old lady realized she forgot some items while in line to check out. Her husband went to find these products but also decided to buy some other things and order a sandwich. During this period, his wife went to find him after he took so long to return, falling and slipping on some water. She did not notice this water prior to the fall. When the husband returned to the checkout area, he found his wife sitting in a chair crying. The husband testified he remembered seeing a man with a “mop in his hand,” but he did not specifically recount what he was doing. The wife also testified she saw an employee with a mop in his hand, but she failed to provide any details beyond this description.

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In a slip and fall case, the location of the accident often determines which venue is appropriate for a civil action. Sometimes if one files suit against a business, the injured person may choose to file suit in the state where the corporation’s headquarters are located. In an appellate decision out of the Third District Court of Appeal, the court reviewed whether or not the state court system was an appropriate venue for a slip and fall that occurred while a woman was about to embark on a cruise.

The injured passenger alleged the corporation had a duty to supervise, control, and direct the crowd using the escalator as they collectively boarded the ship. She claimed they failed to provide safe ingress and egress to the cruise ship by using a faulty entranceway. The cruise ship company moved to dismiss, arguing the venue was improper based on the forum selection clause.  Ship walkwaysWhen the passenger purchased her ticket, she agreed to all of the terms and conditions within it, including the selection of the U.S. District Court for the Southern District of Florida if an incident leads to litigation. The passenger asserted her case was properly filed in state court because the federal court lacked subject matter jurisdiction. The trial court agreed with the injured passenger and denied the defendant’s motion to dismiss, as well as the motion to reconsider. The cruise ship company appealed.

The state court of appeal noted the federal court’s general authority to hear maritime cases stems from the U.S. Constitution. They also looked at federal and state case law, which has long established forum selection clauses on cruise ship tickets are enforceable. The court concluded that federal court is the preferred venue, and it is only in the absence of admiralty jurisdiction when the proper venue is in the state court.

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A Florida appellate court recently assessed an appeal stemming from an accident and negligent care that caused significant, fatal injuries. In a recent case, the personal representative of the injured person’s estate filed suit against several defendants, alleging the decedent was first injured by a malfunctioning sliding door at a drugstore, which led to her receiving inadequate care at a senior home, ultimately resulting in her death. The decedent suffered significant injuries from the fall at the drug store’s premises that were then aggravated by a second fall at the senior center. The representative initially filed two separate actions against the drugstore and the senior center but eventually moved to consolidate the two actions under Florida Rule of Civil Procedure 1.270(a).

In his motion, the representative alleged the wrongful death claim was based on successive injury-producing incidents, and both the drug store and the center contributed to the woman’s death.Book Stack The representative argued there was a substantial risk of inconsistent verdicts because one defendant could place the blame on the other defendant in each case. The representative asserted this could collectively minimize the defendants’ liability and the jury’s award of damages.

The Second District Court of Appeal looked at previous state decisions to determine whether the trial court erred when it denied the motion to consolidate. The Florida Supreme Court previously determined two separate actions involving two automobile accidents should have been consolidated because the damages could not be readily divided among the defendants in each action. (See Lawrence v. Hethcox, 283 So. 2d 41 (Fla. 1973).) The court ruled that separate actions would have increased the injured person’s challenges in proving how much each defendant was responsible. The court felt a denial of consolidation would obstruct rather than promote justice. Other district court verdicts reflect this reasoning in U-Haul Co. of Northern Florida, Inc. v. White and Hickey v. Pompano K of C Inc. Hickey had similar facts to the case at hand, in which a plaintiff suffered two separate slip-and-falls three weeks apart. The plaintiff in Hickey injured her knee, which was alleged to have contributed to the second fall that then exacerbated the first injury. The Fourth District pointed out that the defendant in each action could place the blame on the other defendant, which would result in a low verdict in one or both trials. Low verdicts are not grounds for a new trial, and the plaintiff would be blocked from an adequate remedy by appeal.

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The Supreme Court recently settled a certified conflict between the Fifth and Second District Courts of Appeal, asking whether a party is required to disclose that their attorney referred them to a particular physician for treatment. The legal analysis hinged on whether or not the attorney-client privilege shielded a party from disclosures otherwise required by the rules of discovery. In a recent case (No. SC15-1086), the Supreme Court determined that in this scenario, there is a confidential communication between the attorney and the client, subject to the constitutional privilege.

Money AwardThe Fifth District’s decision was quashed, and the Second District’s was affirmed. In the Fifth District case, the plaintiff slipped and fell in a parking lot. After seeking treatment in an emergency room, she was referred to a specialist for the pain in her right knee. Due to a lack of money, she did not go, but she sought out representation. After retaining legal counsel, she was seen and treated by different physicians from an orthopedic institute and two surgical centers. The injured woman filed suit against the business that owned the parking lot, seeking damages for the cost of her treatment.

During the discovery phase of the litigation, the defendant business repeatedly tried to ask the injured woman about the relationship between her attorneys and the treating physicians seen after she hired counsel. The same questions were asked during the deposition, but the injured woman’s counsel objected, claiming the attorney-client privilege. Interrogatories were then sent by the business to the treating physicians, requesting information to help establish the existence of a referral relationship. The injured woman responded by asserting the requests were overly broad, vague, and unduly burdensome in violation of the Florida Rules of Civil Procedure.

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When an injured party seeks justice in a Florida personal injury lawsuit, he or she hopes for impartial fact-finders. To ensure a fair trial for all parties, the civil court system uses a formal process called Voir Dire in the selection of jurors. Several members of the community are called to potentially serve on a jury.  From this pool of citizens, the attorneys for the parties narrow the candidates by asking written and oral questions.  Wet FloorThe jurors are required to answer truthfully so that any disqualifications and biases can be figured out.

In a recent case (Case No. 5D16-1503), the defendant hotel asked to interview a juror and for a new trial following a verdict in favor of a woman injured in a slip and fall accident on its property. The trial court denied both motions, and the hotel appealed. Initially, the case was filed after the injured plaintiff fractured her kneecap after slipping in a puddle of water in the hotel lobby. The kneecap injury required several screws to be surgically placed in her knee. The lawsuit went to a jury trial, in which the jury found the injured woman and the hotel to each be partially negligent. Despite her partial negligence, an award of nearly $400,000 was granted to the injured woman.

During the Voir Dire phase of the jury trial, a juror questionnaire was filled out by each potential juror. Included were two questions that asked if the juror or a member of their immediate family had been a party to a lawsuit and if the juror or a member of their family had been accused, a complainant, or a witness in a criminal case. The juror at issue in this appeal had answered No to both questions, despite several criminal charges and convictions, a bankruptcy, and a divorce. The juror had also lied about her length of residence in Florida. The defendant hotel argued that if the juror had answered those questions truthfully, she would not have been on the deciding panel. To show that the juror’s deceit potentially affected the outcome, the hotel pointed to the major theme in its defense that the injured plaintiff was dishonest about her cellphone use at the time of the slip and fall accident.

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Florida case law has long held that the proprietor of a business must use reasonable care in maintaining the property. The owner or manager must learn the actual condition of the premises and then either make the area safe or warn of any dangerous conditions. If a condition is obvious, or one that can be readily perceived through the ordinary use of the senses, the proprietor is relieved of the duty to warn.  Stack of palletsA First District Court of Appeal decision (Case No. 1D16-1285) looks at what constitutes an obvious condition and when a proprietor is relieved from liability under premises liability law.

In the case, the injured patron of a grocery store went to make a purchase and obtain empty boxes. He made four trips in and out of the store. During these trips, another company was delivering a shipment of beer. The beer was stacked about five feet high on a pallet between the entrance and exit doors, with an empty pallet sitting on the delivery cart’s prongs to the right of the exit. The injured patron saw the empty pallet but tripped and fell, suffering injuries. The injured patron filed suit against the grocery store, alleging the store failed to warn of the dangerous condition and failed to keep the sidewalk safe.

During the early part of litigation, the injured patron provided an affidavit from an expert, alleging the store created an unsafe condition. The store provided still-shots from video surveillance. The injured patron had previously testified during a deposition that he did not notice the empty pallet on the first two trips, but he did notice it on the third. The injured patron testified that he tripped on the prong underneath the pallet, rather than on the pallet itself. After reviewing the evidence provided by both sides, the trial court granted the store’s motion for summary judgment, determining the pallets to be an open, obvious, and ordinary condition. The court found that the condition was not inherently dangerous, relieving the store of any duty to warn and liability for injuries.

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Personal injury litigation presents challenges at every turn. After a lawsuit is filed, parties often submit motions before trials are scheduled, seeking various types of relief from default judgment to dismissal. In a recent case (No. 2D15-0834), the Third District Court of Appeal reviewed a summary judgment for the defendants in a slip and fall lawsuit. The court agreed with the defendants that there was no genuine issue of material fact for a fact-finder to decide, and it dismissed the case against the hospital and cleaning company.  Emergency arrivalThe injured woman, who suffered a slip and fall accident in the emergency room hallway of a hospital, appealed the decision.

The accident occurred when the woman arrived at the emergency room to assist her mother. Upon arrival, she found her mother resting and learned that she would need to be admitted to the hospital once a bed was open. After five hours had passed, the woman decided to find someone to determine how much longer they’d have to wait, and she saw what she believed to be an EMS paramedic with a spray bottle in the hallway cleaning a stretcher. The woman attempted to go around but then slipped and fell on what she “guessed” was spray liquid. The woman filed suit against the hospital, the housekeeping system, and the Risk Management Division of the county.

Throughout the litigation, the injured woman provided statements about who she thought was in the hallway and what she thought caused her to slip. The injured woman stated that the person cleaning the stretcher “may be a rescue” and also testified that there were no signs indicating the floor would be wet. She acknowledged that she didn’t see any mops, mop buckets, or food service items. She also stated that the substance smelled like a pine-scented cleaning product, and she wasn’t sure how long the substance was on the floor. The hospital and cleaning company moved for summary judgment, based on the lack of evidence that either of them knew or should have known of the slippery condition. Both the hospital and the cleaning company argued they employed staff to ensure the spaces were kept clean and clear, and they implemented a schedule to systematically check and clean surfaces.

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In Florida car accident cases, it is commonplace to see an insurance company indemnify, or take on a personal injury action on behalf of its insured. It is not often a hospital takes on a claim on behalf of a patient, but it happened in the recent Florida Court of Appeal case, Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Association (aka NICA), No.1D16-32. The appellate court certified the hospital’s ability to sue as an interested third party because it had a direct economic interest in avoiding civil litigation and liability for injuries that might otherwise be covered by NICA, § 766.302(2), Fla. Stat., an Act that provides benefits to qualifying infants with birth-related neurological injuries.

NICA issues benefits to infants who suffer an injury to the brain or spinal cord caused by oxygen deprivation or a mechanical injury during delivery that results in a permanent and substantial mental or physical impairment. Hospital birth A baby from a single gestation must weigh at least 2,500 grams (approximately 5.51 pounds) at birth. A baby from a multiple gestation must weigh 2,000 grams (approximately 4.41 pounds) at birth. A disability or death due to a genetic or congenital abnormality is not covered by NICA.

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To litigate a Florida personal injury lawsuit, the action must be filed within the prescribed period set by statute and in the correct forum. The time period may differ, depending on the type of negligence action, and can potentially be changed by a contractual agreement between the parties to the case. Likewise, certain criteria set by statute must be met to file an action in state or federal court, and these can be limited even further by contractual agreement. The federal Eleventh Circuit Court of Appeals in Chang vs. Carnival Corp. (Case #: 14-13228) addresses these limits, reviewing whether or not the injured passenger attempted to file suit within the contractually agreed upon parameters set by her cruise ticket.

The injured passenger slipped and fell while on a cruise on December 9, 2012. The injured person’s ticket included a forum selection clause, which limited the time to file suit to one year and required the suit to be filed in the Southern District of Florida federal court, as long as subject matter jurisdiction requirements were met. Wet FloorIf those weren’t met, the forum selection clause then limited any state court filings to occur in Miami-Dade County, Florida. The injured passenger initially hired an attorney based in California. The attorney was twice notified by the cruise line that it would not waive the forum-selection clause on September 4, 2013 and October 22, 2013. The injured passenger then hired counsel in Florida, who filed suit on December 4 or 6, 2013 in state court instead of federal court, as required by the forum selection clause. The cruise line moved to dismiss the state court action. While the motion to dismiss the state action was still pending, the injured passenger’s counsel then filed suit in federal court, nearly three months after the one-year limitation had already passed.

The cruise line filed for summary judgment in the federal court action, again pointing to the failure to file within the prescribed deadline at the correct location. The injured passenger argued that the limitation had equitably tolled, and the case should not be dismissed, since she tried to meet the requirements of the forum selection clause. On appeal, the injured passenger pointed to another, similar case in which the federal court allowed a different injured passenger to continue with his negligence action, despite filing after the one-year deadline and in state court. (See Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008).) The circuit court acknowledged they did find in favor of the injured passenger in that case, noting that equitable tolling occurs when four things happen. First, the state court must possess subject matter jurisdiction concurrently with the federal court. Second, the state lawsuit must have been dismissed solely on the ground of improper venue. Third, the defendant must have been aware prior to the expiration of the limitation period that the injured person intended to file suit. Fourth, the injured passenger must be entitled to believe that his state filing might be sufficient, since defendants are able to, and often do, waive the defense of improper venue.

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