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parking lotIn an effort to avoid potential litigation, many businesses enact procedures to ensure customer safety. Notwithstanding the ubiquity of such safety procedures, employees do not always follow the rules, which unfortunately leads to injuries to patrons.  When non-compliance with self-imposed safety protocols causes an injury, many people naturally question whether the failure to comply with these procedures amounts to negligence. However, as Florida’s Second District Court of Appeal recently discussed in Wal-Mart Stores, Inc. v. Wittke, a failure to comply with internal practices does not necessarily establish negligence.

Wittke revolves around a December 2009 slip-and-fall accident at a Wal-Mart in Bradenton, Florida. The plaintiff in this action was entering the Wal-Mart on a rainy day when she fell and sustained injuries. Surveillance footage showed that there were two large fans and a yellow warning cone in the area where the fall occurred. Although these measures were taken, the plaintiff asserted that Wal-Mart employees failed to follow certain corporate protocols related to wet floors and were otherwise negligent. The case ultimately proceeded to a trial, after which a jury returned a verdict in favor of Wal-Mart. The plaintiff moved for a new trial, and the trial court judge granted the motion. In this order granting a new trial, the judge noted that “the evidence . . . clearly demonstrated that [the plaintiff’s] injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Wal-Mart appealed the order granting a new trial, and the Second District Court of Appeal agreed that a new trial was not warranted and reversed the trial court’s ruling.

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car accidentUnder Florida law, it is presumed in rear-end collision cases that the driver of the rear vehicle was negligent. Although this presumption can be a useful tool for litigants, the presumption is not absolute, and those seeking to make recourse to this presumption must be able to show that no possible negligence on their part contributed to the collision. Questions regarding the application of this rear-end collision presumption were at the core of a recent decision from the Fourth District Court of Appeal, Padilla v. Schwartz, involving a rear-end collision on the Florida Turnpike.

As stated above, the accident at issue occurred along a stretch of the Florida Turnpike where construction was taking place. The plaintiff was driving on the turnpike when he struck the back of a vehicle being operated by the defendant. At his deposition, the plaintiff testified that he was driving within the speed limit and that he did not observe any vehicles near him until immediately before the collision. The plaintiff further testified that only shortly before the accident did he see the defendant’s vehicle, which he asserted appeared suddenly before him, and that although he applied his brakes, it was not enough to avoid striking the rear of the defendant’s vehicle. Following the accident, the plaintiff brought a negligence lawsuit against the defendant. At the conclusion of discovery, the defendant moved for summary judgment, asserting that he was entitled to the rear-end collision presumption and that the plaintiff had failed to adduce evidence to rebut the presumption that his negligence, rather than the defendant’s, caused the accident. The trial court granted the motion for summary judgment, and the plaintiff appealed.

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therapistIn a long-awaited decision, Chirillo v. Granicz, the Supreme Court of Florida provided much-needed clarity on the thorny question of the liability that may extend to a psychotherapist for his or her patient’s suicide. The decision resolves conflicting rulings from two of Florida’s Courts of Appeal and provides coherent guidance to litigants wondering whether the conduct of a treating psychotherapist is actionable.

Granicz was brought by the widower of a patient who had received mental health care treatment from a primary care physician for about three years prior to her suicide. The physician began providing treatment to the patient in 2005, and in September of that year, he switched the patient’s antidepressant medication from Prozac to Effexor. In October 2008, the patient contacted the physician’s office and told a medical assistant she had ceased taking the Effexor because she believed it was causing various deleterious side effects, including difficulty sleeping and digestive problems. After reading notes on this conversation taken by the medical assistant, the physician called the patient, told her that he was changing her prescription to Lexapro, and referred her to a gastroenterologist. The physician told the plaintiff that she could obtain samples of Lexapro from the office, but he did not schedule an appointment to meet directly with the plaintiff. Some days thereafter, the patient went to the office to obtain the samples.

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Traffic Cone In American legal culture, the determinations of juries are afforded considerable deference. Nevertheless, juries do make mistakes, and courts then must step in and order new trials in the interest of justice. However, those who benefit from an initial jury’s ruling are generally not amenable to a trial court ordering a new trial. Indeed, the propriety of a trial court order directing that there be a new trial was at the center of Botta v. Florida Power & Light Co., a recent decision from Florida’s Fourth District Court of Appeal that involved a collision between an FPL truck and the vehicle of another motorist.

The events at issue in Botta were set in course by a nighttime power outage. After receiving a report of the outage, FPL sent out a truck to investigate. The technician sent to investigate the outage parked his truck along the side of a road but did not set up any reflective markers behind the truck to indicate its presence. In addition, there was disputed evidence as to whether the truck’s warning lights had been activated. Some time after the technician parked, a car being operated by the plaintiff in this case collided with the truck. The plaintiff testified that he believed the truck was in motion at the time of the accident and that he attempted to brake prior to the collision. However, a witness to the accident testified that he did not see the car decelerate before the collision. In addition, there was a dispute of fact regarding whether the headlights of the plaintiff’s vehicle were illuminated at the time of the accident. The plaintiff was severely injured as a result of the crash and needed to have his arm amputated.

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wheelchairLike other industries providing services to vulnerable populations, nursing homes are no strangers to lawsuits. However, simply because nursing homes and similar long-term care businesses often find themselves in courts does not mean they like to be there. Indeed, nursing homes routinely have their incoming residents sign arbitration agreements providing that potential claims against the nursing home be resolved through informal arbitration rather than formal litigation. Given that arbitration panels are often believed to be biased, the enforceability of such arbitration provisions is frequently at issue. For instance, in a recent decision, Sovereign Healthcare of Tampa, LLC v. Estate of Schmitt, Florida’s Second District Court of Appeals addressed whether a nursing home resident’s wife had the authority to sign an arbitration agreement on his behalf.

Sovereign Healthcare arose from incidents of alleged negligence at Bayshore Pointe Nursing & Rehabilitation Center in Tampa, Florida. The plaintiff in this case was the widow of a resident who spent two separate stints at Bayshore prior to his death. Before each of the deceased’s residencies at Bayshore, a “Resident Admission and Financial Agreement” was executed. The agreements included identical arbitration clauses that provided for the arbitration of disputes related to the deceased man’s residency at Bayshore. After the widow of the deceased man filed suit on behalf of his estate, Bayshore made a motion to compel arbitration, arguing that the arbitration provision in the first residence agreement required that the claims asserted be arbitrated. The trial court denied the motion, and Bayshore appealed the adverse ruling.

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playgroundAlthough we expect all products to be “safe,” there are certain products for which our expectation of safety is  heightened. Indeed, given the vulnerability of children, products intended for use by juveniles are expected to be designed in a manner that accounts for both youthful impetuousness and relative physical fragility. Nevertheless, not all products meet reasonable expectations. For instance, in a recent decision, Bogatov v. City of Hallandale Beach, the Fourth District Court of Appeal was tasked with determining whether liability could be imposed on the manufacturer of an allegedly defective jungle gym.

Bogatov started with a fall at the playground of a Hallandale Beach park. The plaintiff in this case is the father of a two-year-old who was at the playground with his nanny when he fell. The child sustained serious injuries as a result of the fall, and local law enforcement investigated the incident. During the investigation, the nanny, who was the only eyewitness to the fall, told law enforcement that the child was on the jungle gym at the time of the fall. Following this string of events, the father filed suit against the city of Hallandale Beach, alleging that the city’s negligence in maintaining the playground resulted in the child’s injury. The complaint was later amended to add the jungle gym’s manufacturer, which the plaintiff alleged was negligent in the design and construction of the jungle gym, in particular by failing to place grasping handles on the jungle gym.

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pediatrics hospitalAlthough it’s common knowledge among Florida’s medical malpractice practitioners that state law requires a complaint for medical negligence to be accompanied by an expert affidavit, it is not uncommon for some to not realize that simply having the affidavit is not necessarily sufficient to comply with the requirements of the law. Indeed, courts in our state regularly dismiss medical negligence cases supported by an affidavit because the plaintiff fails either to provide sufficient notice to the defendant of his or her intent to sue or to provide the defendant with sufficient access to information about the expert during this notice period. These subsidiary requirements under Florida’s medical negligence laws were at issue in a recent decision from Florida’s First District Court of Appeal, Morris v. Muniz.

Morris arose from an alleged act of medical negligence that occurred at Gulf Coast Medical Center. Specifically, the plaintiff alleged that the negligence of various medical professionals resulted in the death of her daughter, who died three days after the plaintiff gave birth to her. Following her loss, the plaintiff initiated a wrongful death lawsuit against various defendants, including Gulf Coast and several medical professionals involved in the birth. Shortly after the lawsuit was filed, the defendants moved to dismiss, arguing that the plaintiff failed to comply with pre-suit notice and investigation requirements under Fla. Stat. Section 766.205(2). The plaintiff opposed the motion, but the trial court dismissed the action, finding that the plaintiff failed to provide the defendants with reasonable access to information regarding her expert during the pre-suit investigation period.  The plaintiff then brought the current appeal.

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clean-well-1230060-300x200In a recent decision, Mathis v. Sacred Heart Health Sys., Inc., Florida’s First District Court of Appeal reminded the lower courts that there are indeed limits to workers’ compensation immunity. Indeed, in a brief decision, the First District reversed a trial court order granting summary judgment in favor of a building owner that argued it was entitled to workers’ compensation immunity for injuries sustained by an employee of a cleaning company that had been contracted to provide cleaning services at the building.

The injuries at issue in this case occurred at Nemours Children’s Clinic, which is owned by Sacred Heart Health Systems, Inc. The injured employee worked for Coverall Service Company, which, pursuant to a contract with Sacred Heart, provided cleaning services at Nemours. While cleaning, the employee slipped and fell as a result of alleged negligence on the part of Sacred Heart in maintaining the property in a safe condition. After collecting workers’ compensation benefits, the employee brought a premises liability action against Sacred Heart. Following discovery, Sacred Heart moved for summary judgment, arguing that they were entitled to immunity pursuant to Section 440.11(1) of Florida’s workers’ compensation law. The trial court agreed and granted the defendant’s motion. The employee then brought the current appeal.

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car-accident-1-1449299-1-300x199In a recent decision from Florida’s Fifth District Court of Appeal, Manfre v. Shinkle, the court examined whether a jury correctly found that the defendant, a local sheriff, was liable for injuries arising from a motor vehicle accident. Although the accident at issue occurred at night on an unlit, rural road, the lack of light only played a marginal role. Instead, the crash was principally caused by the plaintiff’s collision with a dead horse, which the plaintiff claimed was in her path because of a local deputy’s negligent investigation of a report of roaming animals.

The accident at the heart of Manfre occurred shortly before sunrise on a dark road in rural Flagler County. The plaintiff was traveling at about 45 miles per hour when her vehicle struck a dead horse and flipped. As a result of the accident, the plaintiff suffered a variety of physical injuries. About an hour and a half before this accident, the county’s Sheriff’s Office received a call that reported two horses were roaming on the side of the road where the accident occurred. A deputy responded to the scene, where he saw the horses returning to the pasture. Evidence presented at trial indicated that the horses may have been spooked by the sheriff’s headlights. Satisfied that the horses’ return to the pasture settled the issue, the deputy cleared the call and left the scene without either ensuring that the horses were now safely enclosed or contacting the property owner. Following the deputy’s departure, at least one of the horses returned to the road, where it was struck by a vehicle and killed. It was the dead horse with which the plaintiff’s vehicle collided.

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tug-boat-1533451It’s a subject we have mentioned on several occasions, but it’s one that bears repeating. Even a single error can be damaging to a case, or lead to wasteful and duplicative effort for all involved. Indeed, as the defendants in a recent case before Florida’s Second District Court of Appeal, Soto v. McCulley Marine Servs., Inc., now know, litigants should endeavor to get things right the first time because even if an error works in your favor, it may ultimately just lead to wasted effort.

McCulley began with a drowning that occurred on Independence Day 2009. In 2009, Manatee County had a program to create artificial reefs in the Gulf of Mexico. The program involved considerable amounts of concrete debris on other materials. Accordingly, the county set up a staging area at the southeastern end of Anna Maria Island, adjacent to Coquina Beach and Bayside Park. The area is popular for visitors, especially those who enjoy water sports. The defendants in this case were enlisted by the county to help build the reef.  In 2009, Independence Day fell on a Saturday, and the defendants did not wish to work over the holiday weekend. Accordingly, the captain of a tugboat involved in the project moored the tugboat and its barge adjacent to a dock in the staging area. On Independence Day, the decedent was operating a jet ski near the tugboat and barge. During his journey, the jet ski stalled.  The tidal currents were particularly strong, and the decedent became separated from the jet ski. His friends came to assist him, but the decedent drowned. His body was found under the tugboat.

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