The following cases are recent court decisions that may be of interest to you. Please contact us if you have a question regarding any of the cases mentioned or to request a copy of the complete written court opinion.
May 2024
Appellate Division Affirms Summary Judgment for HM&B's Casino Client in Trip-and-Fall Case
Alice Lucas v. Genting New York LLC d/b/a Resorts World Casino New York City and The City of New York, N.Y.S., 3d ---, 2024 WL -------, 2024 N.Y. Slip Op. ----- (2d Dep't May 8, 2024)
In a recent decision, the New York Appellate Division, Second Department affirmed summary judgment for our client, a major casino operator in Queens. Plaintiff alleged that she tripped and fell on an exterior walkway at the casino property. However, she was unable to identify what caused her fall, testifying at deposition that she did not know if she slipped or tripped, or what made her fall.
We moved for summary judgment, arguing that Plaintiff’s inability to identify the cause of her fall was fatal to her claim. The Supreme Court agreed and granted our motion. Plaintiff appealed.
In a unanimous opinion, the Appellate Division affirmed, holding that the casino operator established its entitlement to summary judgment by demonstrating that Plaintiff could not identify the cause of her fall without speculating. The Court rejected Plaintiff’s arguments that alleged inadequate lighting or building code violations raised factual issues, as she never claimed those conditions proximately caused her accident.
This decision reaffirms the well-settled principle that a plaintiff who cannot identify what caused her fall cannot maintain a claim against the property owner. The matter was handled by William Clair and Michael Dono.
Federal Appeals Court Upholds HM&B's Dismissal of “Shotgun Pleading” Complaint
Jean-Baptiste v. Publix Super Markets, Inc., No. 23-12949 (11th Cir. May 6, 2024)
Our firm recently secured a victory in the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the dismissal of a pro se plaintiff’s civil rights complaint against our client, a major supermarket chain.
The plaintiff had filed suit alleging a wide range of claims, including civil rights violations, negligence, contaminated and mislabeled food, and harassment based on race and national origin. The complaint named our client as well as a federal law enforcement agency.
The district court sua sponte dismissed the complaint without prejudice as an impermissible “shotgun pleading.” Shotgun pleadings violate federal rules requiring a plain statement of the claims and that each claim be stated in separate numbered paragraphs. The district court identified the complaint’s deficiencies, such as conclusory and immaterial allegations not tied to specific counts. It instructed the plaintiff on how to correct these issues in an amended pleading.
Rather than amend, the plaintiff appealed. The Eleventh Circuit affirmed, finding no abuse of discretion in dismissing the shotgun complaint. The complaint improperly commingled numerous causes of action in a single paragraph. By appealing prematurely instead of repleading, the plaintiff waived the opportunity to amend.
The decision underscores federal courts’ intolerance for shotgun pleadings that fail to give proper notice of the claims. Faced with such complaints, courts can dismiss sua sponte and direct a repleading. A plaintiff who appeals without fixing the defects risks losing the chance to pursue any claims. Proactive measures by defense counsel can take advantage of these principles to obtain early dismissal of improper complaints.
Florida Appellate Court Upholds Summary Judgment in Favor of HM&B's Retail Client in Chair Collapse Case
Joseph v. Bohemi Chic, Inc., No. 4D2023-0725 (4th DCA Apr. 18, 2024)
Our firm recently secured an appellate victory when the Fourth District Court of Appeal affirmed a summary judgment in favor of our client, a retail shop, in a premises liability case.
The plaintiff, a customer of a neighboring pizza restaurant, alleged she was injured when she sat on a chair placed outside our client’s storefront and it collapsed. She sued our client for negligence. The trial court granted summary judgment, finding the plaintiff was an uninvited licensee to whom our client only owed a duty to avoid willful/wanton harm and to warn of hidden dangers.
On appeal, we argued the court properly classified the plaintiff as an uninvited licensee because she removed merchandise from the chair solely for her own convenience with no intention of patronizing our client’s store. But even if she was an invitee, summary judgment was still proper because she presented no evidence our client had actual or constructive notice of any dangerous condition or failed to reasonably inspect the chair.
The plaintiff also challenged the denial of her request for a jury instruction permitting an adverse inference due to our client disposing of the chair post-incident. However, an inspection of the chair would not have yielded evidence relevant to any disputed fact.
The Fourth District’s affirmance validates the trial court’s well-reasoned decision and reinforces that premises owners are not insurers of safety. Plaintiffs must present evidence of a breach of duty to avoid summary judgment, and spoliation sanctions are improper absent a showing that missing evidence was material.
HM&B Obtains Final Summary Judgment for a Big Box Retailer
Richard Cece v Wal-Mart Stores East, LP, Case No. 05-2021-CA-049036 in the Circuit Court of the 18th Judicial Circuit In and For Brevard County, Florida
Plaintiff, represented by Morgan & Morgan, tripped and fell on a pallet that was left unattended in the aisle. Mr. Cece claims Walmart failed to maintain the store in a reasonably safe condition and that it failed to warn him of the pallet on which he tripped. The Court agreed that the pallet was not inherently dangerous and even if so, Plaintiff should have seen it had he been using reasonable care. In an attempt to defeat summary judgment, Plaintiff filed policies and procedures from an unrelated case and attempted to persuade the Court that such policies and procedures created a duty upon Wal-Mart. The Court specifically addressed such policies as not being part of the record evidence in this case and, more importantly, that under Florida law, a store’s internal policies and procedures do not establish the standard of care owed to Plaintiff—an internal policy that exceeds the ordinary common-law standard of care cannot be relied upon to establish negligence. The Motion for Final Summary Judgment was argued before Judge Jacobus by Stephanie H. Vo.
HM&B Secures Summary Judgment for Large Retailer in Florida Slip and Fall Case Involving Plastic Bag
Plaintiff sued our client alleging injuries sustained from a slip and fall incident at one of its stores. Plaintiff claims that while walking towards the store’s registers, she slipped and fell on a plastic bag.
The store was equipped with video recording equipment that captured Plaintiff moments before her incident, the plastic bag’s appearance on the floor, and the incident itself. The preserved store video unequivocally showed that there was no plastic bag on the floor in the moments leading up to the incident. It revealed that a customer dropped the plastic bag onto the floor just ten seconds before the incident. The video confirmed that the store neither created the condition nor had sufficient opportunity to warn of or remove it before Plaintiff slipped. Accordingly, the store moved for summary judgment.
HM&B argued that if a premises owner has actual notice of a substance on the floor, but for too brief a period before an accident to allow for corrective measures, then there is no liability. And assuming that our client had actual notice in the first instance, a 10-second interval between knowledge and the accident is far too short to constitute a sufficient period of time to warn of or remedy the condition. As a matter of law, our client could not have been negligent for failing to address the condition during that brief 10-second period. A contrary finding would turn our client into a customer safety insurer, violating Florida law.
HM&B also argued that a period of ten minutes or less is inadequate to infer constructive notice. The definitive video evidence supported the fact that the bag was on the floor for no more than ten seconds, which is insufficient for a constructive notice finding as a matter of law.
The district court agreed and entered summary judgment for our client. The court found that our client did not have actual or constructive notice of the alleged dangerous condition, which was a wet plastic bag on the floor near a checkout aisle of the store. Under Florida law, the condition existed for only ten seconds before the incident, which was insufficient time for our client to remediate and did not support the inference that it had constructive knowledge of the condition. Ten minutes or less is generally insufficient to establish constructive notice, while 15 to 20 minutes is sufficient. Furthermore, Plaintiff provided no evidence that slip and falls on plastic bags near the checkout aisle of our client’s store occurred regularly enough to make her accident foreseeable.
The Plaintiff claimed cervical injuries resulting in an anterior cervical discectomy and fusion surgery and over $200,000 in past medical expenses.
Florida Court Affirms Property Owner’s Limited Duty of Care to Uninvited Licensees
Norris v. Rodriguez, 49 Fla. L. Weekly D67 (Fla. 2d DCA Dec. 29, 2023)
The plaintiff Melanie Norris sued defendant Alan Rodriguez for injuries sustained when she tripped over a broken corner of his driveway while crossing his property to access a public sidewalk. The plaintiff argued that as a public invitee, Mr. Rodriguez owed her a duty of care. However, the trial court granted summary judgment in favor of the defendant, determining that Ms. Norris was an uninvited licensee rather than a public invitee. This distinction is important as it affects the level of duty owed by the property owner.
The appellate court upheld the trial court’s decision, emphasizing that Ms. Norris’s presence on the property was solely for her own convenience and not because she was invited or welcomed by Mr. Rodriguez. As an uninvited licensee, Mr. Rodriguez’s duty of care was less stringent compared to that owed to a public invitee. He was only required to refrain from willful misconduct or wanton negligence and to avoid intentionally exposing Ms. Norris to danger. Moreover, Mr. Rodriguez was not obligated to warn Ms. Norris of open and obvious dangers on his property.
The court found that the broken corner of the driveway, over which Ms. Norris tripped, was an open and obvious danger. Therefore, Mr. Rodriguez was not liable for failing to warn her about it. Since there was no genuine dispute about material facts, the court affirmed the trial court’s decision to grant summary judgment for Mr. Rodriguez. In essence, the court ruled that Ms. Norris was not owed the higher duty of care applicable to public invitees and that Mr. Rodriguez did not breach his duty towards her as an uninvited licensee.
Florida Court Reverses Decision Allowing Punitive Damages Claim in Fraudulent Lien Case
Selz v. McKagen, 49 Fla. L. Weekly D282 (Fla. 4th DCA Jan. 31, 2024)
In a recent case involving North County Wrecker Service, LLC, and the Natalie Hursey Trust and the Allen Hursey Trust (the “Trusts”), the court addressed the issue of punitive damages in a fraudulent lien and slander of title lawsuit. The dispute stemmed from a fire that damaged a property leased by North County from the Trusts. After years of litigation, North County’s claims against the Trusts were dismissed.
Before the Trusts could sell their properties, North County’s attorney, Steven M. Selz, filed a notice of lis pendens and later recorded an equitable lien against the properties. The Trusts successfully moved to discharge the equitable lien, which the trial court ruled as improper. Subsequently, the Trustees of the Trusts sued Selz for filing a fraudulent lien and slander of title. The trial court granted summary judgment on the fraudulent lien count, finding that Selz’s actions in recording the equitable lien constituted intentional misconduct, entitling the Trusts to actual and punitive damages.
Selz sought certiorari review, arguing that the trial court improperly permitted the Trusts to seek punitive damages without amending their complaint. The court held that before allowing a claim for punitive damages, there must be a reasonable evidentiary showing of intentional misconduct or gross negligence. Upon review, the court found that the summary judgment order did not establish the required level of intent for punitive damages and reversed the order granting leave to amend the complaint.
In conclusion, the court reversed the decision to permit the punitive damages claim and remanded the case for further proceedings consistent with the opinion. This case highlights the importance of establishing the requisite level of intent, either intentional misconduct or gross negligence, before a court can allow a claim for punitive damages.
Celestin v. Se. Traffic Supply, LLC, No. 23-61024-CIV-MARTINEZ, 2024 U.S. Dist. LEXIS 17500 (S.D. Fla. Jan. 30, 2024)
The trial court granted the defendants’ motion to stay the lawsuit and compel arbitration. The plaintiff, Thelemarc Celestin, sued his former employers, Southeastern Traffic Supply, LLC and Helix Traffic Solutions, LLC, alleging violations of the Family and Medical Leave Act (FMLA). The defendants argued that Celestin’s employment application and a subsequent arbitration agreement he signed mandated the submission of all employment-related claims to binding arbitration.
Celestin claimed that his signatures on the agreements were forged. However, the court found that he failed to establish a genuine issue of material fact concerning the validity of the agreements. The court emphasized that while the Federal Arbitration Act (FAA) requires an arbitration agreement to be in writing, it does not necessitate the parties’ signatures. Furthermore, the court noted that Celestin did not deny seeing or reading the agreements, and his continued employment after being required to sign the arbitration agreement manifested his assent to arbitrate. Consequently, the court granted the motion to compel arbitration and stayed the lawsuit pending the completion of the arbitration process.
Florida Court Upholds Strict Notification Requirements in Wrongful Death Claims Against Immune Defendants
Fagan v. Jackson Cty. Hosp. Dist., 49 Fla. L. Weekly D383 (Fla. 1st DCA February 14, 2024)
The Florida court addressed the crucial issue of timely notification to the Florida Department of Financial Services (DFS) in wrongful death claims against immune defendants under section 768.28(6)(a)2 of the Florida Statutes. The appellant, Fagan, failed to comply with the statutory two-year time limit for notifying DFS of the claim and argued that tolling provisions in chapter 766, which applies to both immune and non-immune defendants, should equally apply to actions under section 768.28.
However, the court rejected this argument, emphasizing the distinction between immune and non-immune defendants and notices to defendants versus notices to state agencies. The court pointed out that section 766.106(4) specifically tolls deadlines for filing lawsuits, not for giving statutory notice to state agencies like DFS. Furthermore, chapter 766 addresses notice to state agencies separately and does not allow for delayed notice until after presuit investigations end and a lawsuit is filed. In contrast, section 768.28 requires timely notification to DFS within two years of the claim accruing, without provisions for delayed notice.
The court emphasized the strict construction of the statutory waiver of sovereign immunity under section 768.28. Despite the appellant’s arguments for fairness and equity, the court concluded that any interpretation must adhere to the clear language of the statutes and the legislature’s intent. Consequently, the court affirmed the trial court’s dismissal of the appellant’s lawsuit.
This decision highlights the importance of strict notification requirements when pursuing wrongful death claims against immune defendants in Florida. The plaintiff must ensure that they comply with the two-year time limit for notifying DFS, as failure to do so may result in the dismissal of their lawsuit, regardless of the merits of their case.
Florida Court Orders New Trial on Comparative Negligence in Car Accident Lawsuit Against City
City of Gainesville v. Rodgers, 48 Fla. L. Weekly D2257 (Fla. 1st DCA Nov. 29, 2023)
Jacob T. Rodgers sued the City of Gainesville for a tragic accident that left him paraplegic. Rodgers was a backseat passenger in a pickup truck driven by Hank Blackwell when it was struck by an SUV driven by William Stormant, an employee of the City of Gainesville. The accident occurred when Stormant failed to stop at a stop sign.
The central issue in the appeal was whether the trial court erred in denying the City’s motion for a new trial. The appellate court held that the trial court abused its discretion in denying the motion because the jury’s finding that Rodgers and Blackwell were not negligent was against the manifest weight of the evidence. Despite expert testimony indicating that Rodgers’ failure to wear a seatbelt and Blackwell’s excessive speeding contributed to Rodgers’ injuries, the jury found Stormant 100% at fault.
The court reversed the denial of a new trial and remanded the case for a new trial solely on the issue of comparative negligence of Rodgers and Blackwell. The court determined that Stormant’s negligence and the amount of damages had already been established.
Florida Appellate Court Reverses JNOV and Upholds Jury’s Defense Verdict in Medical Malpractice Case
Carrasquillo v. Metzler, 376 So. 3d 736 (Fla. 4th DCA 2024)
In a medical malpractice case arising from the death of Wendy Metzler, the appellate court reversed a trial court’s order granting judgment notwithstanding the verdict (JNOV) against one of the defendant doctors and upheld the jury’s complete defense verdict. The lawsuit alleged that the defendant doctors, Dr. Carrasquillo and Dr. Valdes, were negligent in failing to timely refer Mrs. Metzler for a chest CT scan, which deprived her of a chance to have life-saving surgery.
After a jury trial resulted in a complete defense verdict, the plaintiff moved for JNOV against both doctors. The trial court granted the motion against Dr. Carrasquillo but denied it against Dr. Valdes. The trial court then unilaterally determined that the plaintiff suffered $1.125 million in damages and entered final judgment against Dr. Carrasquillo and the hospital in that amount.
On appeal, the appellate court reversed the order granting JNOV and the final judgment, finding that the evidence presented at trial was conflicting on whether the doctors breached the standard of care. The court held that the trial court improperly reweighed the evidence and substituted its own judgment for that of the jury. The case was remanded for entry of a final judgment consistent with the jury’s defense verdict.
The appellate court’s decision to reverse the JNOV and uphold the jury’s defense verdict reinforces the principle that a trial court should not substitute its own judgment for that of the jury when the evidence presented at trial is conflicting. The case also highlights the high standard that must be met for a court to grant a JNOV, which is only appropriate when there is no reasonable evidence to support the jury’s verdict.
ABOUT THE FIRM
Hamilton Miller & Birthisel, LLP is a boutique trial law firm specializing in the areas wrongful death and personal injury defense, premises liability, insurance defense and coverage, maritime claims, professional and E&O claims, liability and trucking and transportation claims and commercial litigation. The firm has over 100 attorneys located in all major cities in Florida, New York, Virginia and the Caribbean. For more information about our practice areas and attorneys, please visit hamiltonmillerlaw.com.
