Miscellaneous

March 23, 2010

Tort “Deform” – My Opinion

Along with the right to vote, a free and vigorous jury system is a key element in the ability of Americans to control the type of society in which they live. Efforts by state and federal politicians at placing arbitrary caps on the amount of damages available to parties in civil cases is a direct attack on the jury system, and thus the power of the citizenry to control their own society.

Juries should be allowed to award the full measure of damages justified by the facts of each case after engaging in thoughtful deliberations. For the most part, their verdicts are dead-on appropriate. To argue otherwise is to ignore a large body of statistical evidence and question the ability of everyday people to judge wisely. Moreover, in those rare instances where a jury decides incorrectly, the aggrieved parties, be they the plaintiffs or the defendants, have available to them many tools (e.g. retrial; appeal; etc.) to correct the error.

Arbitrary damage award caps provide immunity from full accountability and should be opposed. Our civil jury system works exceedingly well and should remain free of arbitrary constraints.
Continue reading

March 21, 2010

Recording/Wiretapping Phone Calls & Conversations Without Consent Prohibited in Florida

by Jeffrey P. Gale, P.A.

It is both a crime (3rd degree felony – Section 934.03(4) Florida Statutes), and an actionable civil violation (934.10) to record phone calls in Florida without the prior consent of the party or parties being recorded.

Exceptions do apply, see Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3DCA 2004), Jatar v. Lamaletto, 758 So.2d 1167 (Fla. 3DCA 2000), cause dismissed 786 So.2d 1186, and Stevenson v. State, 667 So.2d 410 (Fla 1DCA 1996), rehearing denied, but the general rule is that non-consensual recordings are prohibited.
Continue reading

March 16, 2010

Children/Parental Liability Waivers & The 2010 Florida Legislature

by Jeffrey P. Gale, P.A.

In December, 2008, the Florida Supreme Court, in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), held that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity.

In Kirton, 14 year old Christopher Jones died in an ATV crash at a motorsports park. Prior to the crash, his father had signed a release and waiver of liability, assumption of risk, and indemnity agreement to allow his son to ride at the park. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. The Florida Supreme Court’s majority opinon – one dissent (Wells, J) and two non-participants (Canady and Polston, JJ) – resulted from an appeal of the 4th DCA’s decision.
Continue reading