Florida Injury Attorney Blawg

February 4, 2023

Jeffrey P. Gale, P.A. // Transitory Substance Premises Liability Law in Florida

For purposes of this blog, a transitory substance is any solid or liquid substance, object, or item that is located in a place where it does not belong.

Certain legal standards must be met in order to prevail in a case for personal injuries caused by a transitory substance. Before Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the injured person had to prove that the owner or person in possession of the premises had actual or constructive knowledge of the transitory substance. Constructive knowledge required a showing “that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).

Florida’s appellate courts struggled to determine whether in a given case sufficient evidence existed to create a jury question on the issue of constructive notice. Owens tried to eliminate the struggle by creating a new rule:

where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.

The rule eliminated the need for proving actual or constructive notice and placed the burden on defendants to show they exercised reasonable care through their maintenance, inspection, repair, and warning procedures and modes of operation.

By the next legislative session, the rule announced in Owens was adopted in part and modified by the Florida Legislature. See Section 768.0710, Florida Statutes (2002). The statute was modified to shift the burden onto claimants to demonstrate that the defendant failed to exercise reasonable care.

In 2010, section 768.0710, Florida Statutes (2002) was repealed and replaced with section 768.0755, Florida Statutes. The new statute eliminated negligent maintenance, inspection, repair, warning, or mode of operation as a means of establishing fault, and it reinstated the actual or constructive knowledge standard. The differences between the statutes are explained in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424-26 (Fla. 4th DCA 2014):

The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older 2002 statute expressly stated actual or constructive notice was not “a required element of proof to this claim,” but the new 2010 statute expressly stated the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.

The McGruder court went on to say:

Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing ‘the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,’ without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.

Section 768.0755 reads as follows:

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or

(b) The condition occurred with regularity and was therefore foreseeable.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

Whereas 768.0710 was a version of Owens, 768.0755 is a throwback to the law as it existed before Owens. The following cases, both pre-Owens and post-768.0755, are examples of how the law is applied. Since Owens is moot, none of the cited cases were decided under Owens.

Against Plaintiff

North Lauderdale Supermarket v Puentes, 332 So.3d 526 (Fla. 4th DCA 2021). Puentes slipped and fell on a purportedly oily substance on the floor of Defendant’s business establishment. Defendant appealed the non-modified use of standard jury instruction 401.20(a) (“Issues on Plaintiff’s Claim — Premises Liability”). In pertinent part, the instruction read as follows:

Whether Defendant, Sedano’s Supermarket #35, negligently failed to maintain the premises in a reasonably safe condition….

Finding that the instruction was not correct, the DCA reversed. The court explained that the law in effect, section 768.0755, differs from its predecessor, section 768.0710, by not allowing for liability based solely on the business establishment’s general failure to maintain the premises, while the instruction permitted the jury to find Defendant liable on a theory of negligent maintenance without making the statutorily required finding that Defendant had actual or constructive knowledge of the dangerous condition. The court noted that the Committee on Standard Jury Instructions (Civil) at 2 (June 7, 2019), did not propose redrafting instruction 401.20(a) itself, stating that the instruction remained “accurate for premises liability claims involving a landowner or possessor’s negligence toward invitees and invited licensees that do not involve transitory foreign substances.” Id. (emphasis added).

Lago v. Costco Wholesale Corp., 233 So.3d 1248 (Fla. 3rd DCA 2017). A slip and fall case. Summary judgment for Costco affirmed on appeal. The appellate court noted the following factors: As to actual notice, Lago testified she did not see any Costco employee around the liquid or by the entrance before or when she fell. As to constructive notice, “Lago’s testimony was almost identical to the Delgado [Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011)] plaintiff. Lago testified that it was not raining (the slip and fall happened under an overhang in front of the Costco entrance), she did not see the liquid on the floor before she fell, she didn’t know what the liquid was (other than that it was wet), and she didn’t know how long it had been there. Lago saw no one else slip in the same busy entranceway before and after her fall.” “Without additional facts suggesting the liquid had been there for a long period of time or this happened regularly, the trial court properly granted summary judgment in favor of Costco.”

Tallahassee Med. Ctr., Inc. v. Kemp, 324 So.3d 14 (Fla. 1st DCA 2021). Trial court denial of directed verdict for defendant Tallahassee Medical Center reversed on appeal. Plaintiff fell in front of a utility-room door. The court decided that video evidence of employees moving trash bags, linen bags, and trays into the utility room next to where she fell and a housekeeping cart wheeled over the spot that she fell was not enough circumstantial evidence to get the case to a jury. The court noted that the video showed no leaks, spills, drops, or other deposits of a liquid substance onto the floor and that plaintiff saw nothing drop from the tray being carried by the employee she saw immediately before her fall. Here’s the court’s reasoning:

Plaintiffs may not stack inferences upon a debatable inference drawn from circumstantial evidence. See [State Farm Mutual v] Hanania, [261 So. 3d 684] at 687 [Fla. 1st DCA 2018]. Instead, a directed verdict should issue for a defendant “if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation.” Id. (quoting Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016)). This rule against stacking inferences “protect[s] litigants from verdicts based on conjecture and speculation.” Id. (quoting Zota, 192 So. 3d at 537; see also Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d DCA 2018) (foreclosing a jury from stacking inferences from circumstantial evidence to arrive at a verdict).

Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014). Summary judgment for Winn-Dixie upheld on appeal. The facts:

Appellant saw no water or other liquid substance before she fell.
She could not say whether she saw any such substance on the floor after she fell, although she claimed she saw “wet tracks” from the wheels of the cart.
When asked if she saw any water tracks, Appellant responded: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store.
Appellant described the condition that allegedly caused her fall as “just drops of water” that were “unnoticeable”; thus, she did not see the substance before her fall. Furthermore, she was not sure how long the water was there.
The store manager observed a video taken by a store surveillance camera that showed two of his assistants inspecting the area where Appellant fell two to three minutes before the incident happened.
When asked if it rained on the day in question, the manager responded that he believed it did, but “I don’t know if it just stopped or just started.” When asked why he believed it rained, Williams responded: “Because in the video, it shows that we had an umbrella rack up,” which are “plastic bags where your umbrella gets into, and that’s to keep them from dripping.” These are put out “[b]efore a rain or during a rain.”
Pursuant to Winn-Dixie’s rainy-day policy, right before a rain or after, a mat, two cones, and an umbrella rack would be put down near the entrance door. The manager did not see the mat in place in the video footage from the time of the incident. Asked why the mat was not down, he didn’t know if it was because it had stopped raining, or if it hadn’t rained yet and his people were in the process of doing it.
As for why the umbrella rack was there, the manager assumed that it had just rained or was about to rain.

January 21, 2023

Jeffrey P. Gale, P.A. // Insuring Against Damages in Florida Motor Vehicle Crash Cases

by Jeffrey P. Gale, P.A.

Accidents happen. Being properly insured for motor vehicle crashes is good for the insured and for persons harmed through the insured’s negligence.

Florida is one of only three states that does not require owners of motor vehicles registered in the state to maintain bodily injury (BI) insurance. Bodily injury insurance covers losses for economic (e.g., lost wages and medical bills) and non-economic damages, also known as human damages, such as pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life.

While BI coverage is not mandatory, it is available from every insurance carrier that sells motor vehicle insurance in the state. The first thing to keep in mind when securing BI insurance is the coverage limit under the policy. As with anything else, you get what you pay for. The minimum BI coverage limit in Florida is $10,000; the sky is the limit for how much coverage can be purchased. Individuals and companies with large assets subject to judgments are well-advised to maintain high coverage limits.

January 19, 2023

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Benefits for Undocumented Aliens

by Jeffrey P. Gale, P.A.

Injured employees are entitled to workers’ compensation benefits. Undocumented aliens are considered employees under Florida’s workers’ compensation system. Section 440.02(15)(a), Florida Statutes provides as follows:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors. (Bold added for emphasis.)

Employees missing time from work are eligible for lost wage benefits (i.e., indemnity) for partial and total disability. 440.15(1) (PTD), 440.15(2) (TTD), 440.15(4) (TPD). Entitlement to temporary partial disability benefits (TPD) depends on whether Claimant can demonstrate a causal link between his injury and his alleged wage loss. Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

The employment of illegal aliens is prohibited by federal and state law. These laws would seemingly prevent undocumented aliens from being able to demonstrate a causal link between their injuries and their wage loss. However, Florida’s workers’ compensation system has an exception:

the employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due when the employer “knew or should have known of the true status of the employee.” Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

January 14, 2023

Jeffrey P. Gale, P.A. // Recovering for Mental and Nervous Injuries in Florida

by Jeffrey P. Gale, P.A.

Florida’s liability law and workers’ compensation systems are cautious about awarding benefits for mental and nervous injuries. The underlying basis for the caution is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims. R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995).

What has come to be known as the “Impact Rule” requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'” See Southern Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005).

The rule is applied in common law personal injury cases and in workers’ compensation cases.

Limited exceptions to the Impact Rule apply in both fields. The common law exceptions have been created by the Florida Supreme Court. See, e.g., Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (recognizing the tort of intentional infliction of emotional distress absent impact); Champion v. Gray, 478 So.2d 17 (Fla.1985) (allowing recovery where plaintiff is in the “sensory perception” of physical injuries sustained by a close family member); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (finding rule inapplicable to actions for wrongful birth); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (impact rule does not preclude recovery of non-economic damages for parents of stillborn child); Gracey v. Eaker (impact rule inapplicable for breach of statutory duty of confidentiality to patient); Rowell v. Holt, 850 So.2d 474 (Fla.2003) (impact rule does not preclude recovery for psychological injury due to attorney’s negligence).

In short, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Id. at 478.

Compare these close-call cases: R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995) (impact rule applies to negligent HIV diagnosis without physical damage), Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 2005) (impact rule applies to outing student’s homosexuality).

December 29, 2022

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

by Jeffrey P. Gale, P.A.

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or

The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or

The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

December 23, 2022

Jeffrey P. Gale, P.A. // Don’t Stand for Discovery Abuse in Civil Cases

by Jeffrey P. Gale, P.A.

Parties to civil lawsuits in Florida have the right to learn things about an opponent’s case through a process called discovery. The discovery procedures are set forth in the Florida Rules of Civil Procedure.

Rule 1.280 sets forth the general methods and scope of discovery. Concerning scope, subsection (b)(1) provides as follows:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Multiple vehicles are available for obtaining discovery. Depositions, interrogatories, which are written questions, and requests for the production of documents, are the most common methods. Rule 1.350 addresses the request for documents. Depending on the stage of the proceeding, a response is due within 30 or 45 days of when the discovery is propounded.

The party must either produce the documents or voice an objection within the prescribed time period. Importantly, a party’s failure to respond or object to discovery within the time deadline results in a waiver of any objections that party may have to the discovery sought. Am. Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981).

December 19, 2022

Jeffrey P. Gale, P.A. // Who Pays Attorney’s Fees and Costs Assessed Against Defendant Under Proposal for Settlement?

by Jeffrey P. Gale, P.A.

In an effort to extract attorney’s fees and costs from an opponent, any party to a lawsuit may utilize Florida Statute 768.79. In cases involving substantial amounts of litigation, the award under the statute can be sizable, even in the hundreds of thousands of dollars. For this reason, the statute is also a powerful mechanism for effectuating settlements.

If the award is against an insured defendant, who pays, the defendant or the insurance company?

Florida’s Insurance Code requires policies sold in Florida to provide various types of coverage. For example, motor vehicle policies must include personal injury protection (PIP). However, the Code does not require liability insurance policies to maintain coverage for 768.79 awards.

December 7, 2022

Jeffrey P. Gale, P.A. // Ignorance of a Document’s Content is no Defense

by Jeffrey P. Gale, P.A.

“Ignorance of the law is no defense” is a popular expression. It means that a person will not be excused from punishment for not knowing that particular conduct was against the law.

A similar rule holds true when it comes to written documents: Ignorance of a document’s content does not discharge the responsibility of a party to the document.

We are in suit against a homeowner for serious personal injuries sustained by our client from an accident that occurred on the homeowner’s property during a construction project. Among the legal theories claimed for holding the homeowner responsible is the breach of his duty created by undertaking the project as the owner-builder.

November 20, 2022

Jeffrey P. Gale, P.A. // Florida’s EMA Law Neuters the Independence of Workers’ Compensation Judges

by Jeffrey P. Gale, P.A.

The resolution of disputes in Florida workers’ compensation cases often boils down to medical opinions. On this matter, the deck is stacked against injured workers (a/k/a “claimants”).

Section 440.13(2)(a), Florida Statutes lays out the obligations of employers and their insurance carriers, commonly referred to as “E/C,” to furnish medical care to injured workers. Unless an E/C fails to furnish care timely, it controls who is authorized to provide care at every stage of the case. 440.13(2)(a),(c)&(f). In other words, E/C get to pick claimants’ medical providers.

We typically see the same handful of medical providers selected by E/C in every case. The obvious reason why is because the providers make a steady and reliable income from workers’ compensation cases and know better than to bite the hand that feeds them. Especially when a call can go either way, they are skilled at expressing opinions favorable to E/C. They’re also adept at managing care so they make money, for example, with ongoing visits and physical therapy, while depriving claimants of the opportunity to recover lost wage payments. In this regard, “No functional limitations” is a favorite conclusion. See Section 21 of DWC-25. (This form is supposed to be completed by authorized doctors after every appointment.)

Making matters worse is that judges of workers’ compensation claims (“JCC) are not allowed to consider the opinions of any medical providers other than those authorized by E/C, typically the hand-selected usual suspects, each party’s IME, and an EMA doctor. Section 440.13(5)(e) provides as follows:

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

An IME doctor is not a treater. He or she gets to examine the claimant one time and review medical records. See 440.13(1)(h)&(i) and (5). The EMA doctor is appointed by the Judge of Compensation Claims (JCC) to resolve differences of opinion among authorized and IME doctors. Section 440.13(9), Florida Statutes.

November 17, 2022

Jeffrey P. Gale, P.A. // Florida’s Vehicle Crash Rear-End Fault Presumption Not Absolute

by Jeffrey P. Gale, P.A.

In 1958, Florida joined a handful of other states in adopting the evidentiary rule that a presumption of negligence arises against the trailing vehicle in motor vehicle crashes. See McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958) (Other jurisdictions limited the rear-end aspect of the collision to creating an inference of negligence.). Shortly thereafter, the rule was approved by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959). The usefulness of the rule was explained in Jefferies v. Amery Leasing, 698 So.2d 368 (Fla. 5th DCA 1997):

A plaintiff ordinarily bears the burden of proof of all four elements of negligence—duty of care, breach of that duty, causation and damages. See Turlington v. Tampa Elec. Co., 62 Fla. 398, 56 So. 696 (1911); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. Beginning with McNulty, therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits. Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965); Brethauer v. Brassell, 347 So.2d 656, 657 (Fla. 4th DCA 1977). At the time when this rear-end collision rule was developed, Florida was still a contributory negligence state. Thus, if the presumption were not overcome, the following driver’s claim would be barred. Under contributory negligence, a negligent plaintiff could not recover against a negligent defendant. See Shayne v. Saunders, 129 Fla. 355, 362, 176 So. 495, 498 (1937). Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA), quashed on other grounds, 216 So.2d 448 (Fla.1968).

As the court explained in Birge v. Charron, 107 So.3d 350, 361 (Fla. 2012), “the rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation.”

FLORIDA INJURY ATTORNEY BLAWG