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.

HM&B Secures Dismissal of Auto Negligence Claim

Orange Co., 2022-CA-005919

In this alleged rear-end collision, Plaintiff claimed that Defendant was negligent in operation of her vehicle. Demands exceeded policy limits. Defendant filed a PFS and then secured non-party deposition testimony that Plaintiff’s vehicle cutoff the Defendant’s vehicle. This evidence was previously obtained by Plaintiff through her investigator and available throughout the litigation. Defendant then moved for summary judgment. Once the motion was filed, Plaintiff voluntarily dismissed the action without obtaining any compensation from Defendant. Kira Tsiring and Carlos Llorente represented the Defendant.

HM&B Secures Favorable Workers’ Compensation Final Compensation Order on Due Process Grounds

Jeff Sharkey v. Southeastern Freight Lines, Inc., and Gallagher Bassett Services, Inc. (OJCC: 24-020021TAH (Apr. 23, 2025))

The Employer/Carrier accepted compensability of a workplace accident as well as injuries to the Claimant’s left shoulder and right knee. The Claimant petitioned for compensability of “plead injured body parts including corresponding diagnosis without limitation” without further specificity. Two days before the Final Hearing, the Claimant’s Trial Memorandum requested, for the first time, “compensability of tricompartmental osteoarthritis and internal derangement of the right knee.” This was the only issue tried at the Final Hearing. Gina M. Jacobs, Esq., successfully argued before the Judge of Compensation Claims that allowing the Claimant to ambiguously assert an injury/diagnosis and then add specificity on the eve of trial would be violative of the Employer/Carrier’s due process rights. The JCC concluded that the Claimant had not made a proper claim for benefits under Chapter 440, Florida Statutes, and that subject matter jurisdiction was lacking. This was a crucial win, not only for the party Employer and their Carrier, but for Employers and Carriers statewide, to curtail future use of this “fill-in-the-blank” tactics by the Claimants’ bar. The win also resulted in a denial of a large attorney’s fees and costs claim to Opposing Counsel.

HM&B Secures a Summary Judgment for Major Grocery Chain in a Slip and Fall Matter

Doe vs. Major Grocery Chain (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, FL)

In a recent victory for the Defense, the Court granted Summary Final Judgment in favor of a national grocery retailer, effectively ending a premises liability claim brought by a Plaintiff who alleged a slip and fall on the store’s premises. Plaintiff contended that she slipped on a transitory foreign substance–presumed to be water or melted ice– while walking through the store in Orlando, Florida. She alleged that the store negligently failed to maintain the premises in a reasonably safe condition and failed to warn of the hazard.

 Following a hearing on April 9, 2025, the Court found that Plaintiff could not meet her burden under Florida law to establish that the store had constructive knowledge of the allegedly dangerous condition. In doing so, the Court specifically held that Plaintiff failed to demonstrate either that the substance had been present for a sufficient length of time to be discovered through ordinary care, or that such incidents occurred with sufficient regularity to make the condition foreseeable.

Nicholas Van Valen and Paxton Bagan secured the summary judgment win, delivering a strong result for the client.

HM&B Prevails on a Workers’ Compensation Final Compensation Order Dismissing Claims for Indemnity Benefits, Attorney’s Fees, and Taxable Costs

Michael Catanzaro v. Sunrun, Inc., and American Zurich Insurance Company/Gallagher Bassett Services Inc. OJCC: 23-017044TSS (Apr. 4, 2025)

The Claimant reached Maximum Medical Improvement (MMI) for his compensable low back injury on September 9, 2024. The Claimant petitioned for Temporary Partial Disability (TPD) benefits thereafter, as well as penalties, interest, attorney’s fees, and costs. At the Final Merits Hearing, the Claimant argued that he was not at overall MMI because his authorized neurosurgeon recommended low back surgery. The Judge of Compensation Claims (JCC) accepted evidence presented by HM&B trial attorney Gina M. Jacobs, Esq., that established the legal distinction between remedial versus palliative care based on post-MMI treatment, and Claimant’s failure to reschedule surgery that was authorized several times and cancelled by Claimant. The JCC accepted the argument of Attorney Jacobs that the Claimant’s inaction, and lack of explanation for his inaction, established that the Claimant had decided not to proceed with surgery. The JCC adopted September 9, 2024, as the date of overall MMI and denied the claims for TPD Benefits, penalties, interest, attorney’s fees and costs.

HM&B Secures a Defense Verdict in an Admitted Liability Motor Vehicle Case

Burrus v. Alvarez and Concrete America, 2023-CA-882-O (Ninth Judicial Circuit in and for Orange County, March 21, 2025)

Plaintiff, Sheena Burrus, sued for a back injury following a low speed, rear-end motor vehicle incident. She had lumbar surgery two months post-accident and did not advise her treaters of a prior accident with similar injuries or treatment to her lower back just days before the subject incident. Plaintiff sought almost $4 million in damages, which included past medical expenses of $130,000 and over $1 million in claimed future damages. Frank DeMeo and Zea McDonnough were the trial lawyers from the HM&B trial team and successful pointed out the inconsistencies and misleading claims presented by Plaintiff. After a five (5) day trial, the jury returned a defense verdict and awarded nominal past and future medical damages but did not find permanency and did not award the millions in pain and suffering Plaintiff had demanded.

HM&B Secures Favorable Defense Verdict After a 6-Day Trial

Julio Rocha, individually, and as parent and guardian of E.V. and L.V., minor children v. Joseph Stewart and T&S Professional Rentals, LLC, Case No.: 2022-CA-005538-O (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida)

The case was tried before an Orange County, Florida jury by Nicholas DeCapua, Esq. and Ashley Stewart, Esq. The Plaintiffs each sought close to $1,000,000.00 in damages from the jury, including past and future medical expenses and past and future pain and suffering damages.

Following a six (6) day jury trial in Orlando, Florida, in an admitted negligence case in which Plaintiff, Julio Rocha, individually, and on behalf of his two (2) minor children, all claimed permanent injuries as the result of a motor vehicle/tanker truck accident, the jury denied all three Plaintiffs' claims for future medical expenses and also denied all three Plaintiffs' claims of permanent injuries and resulting pain and suffering damages. The jury merely and awarded the Plaintiffs their past medical expenses for three months of treatment. Julio Rocha was awarded $7,997.86; E.V. was awarded $2,377.00; and L.V. was awarded $6,416.00. The Defendants are also entitled to the recovery of attorney’s fees pursuant to a proposal for settlement directed at Plaintiff, Julio Rocha.

HM&B Obtains Summary Judgment for a Home Improvement Big Box Retailer

John Doe v. Home Improvement Big Box Retailer, (In the Circuit Court for the 17th Judicial Circuit, in and for Broward County, Florida)

Plaintiff alleged that she was injured when some metal rods that she claimed were leaning behind a display unit fell and hit her on the head. Plaintiff  claims that the home improvement big box retailer failed to maintain the store in a reasonably safe condition because it failed to discover and move the metal rods before her incident occurred. The court granted summary judgment in favor of the retailer finding that it did not have actual or constructive notice of the existence of the metal rods and that the condition was not the result of any negligent mode of operation by said retailer. Bradley Silverman and Kishel Stubbs were the trial lawyers from HM&B who secured the summary judgment.

HM&B Secures Final Summary Judgment for Big Box Retailer

John Doe v. Big Box Retailer, (in Circuit Court in and for Miami Dade County, Florida)

Plaintiff alleges he was injured when he fell while pushing a shopping cart due to defective carpeting. Mr. Doe claimed that the Big Box Retailer failed to maintain the store in a reasonable safe condition by allowing the carpet to be defective. However, Mr. Doe and his attorneys were unable to present any evidence to show how the carpet was defective, or that the Big Box Retailer knew or should have known about it. Plaintiff later attempted to argue that the shopping cart may have been defective, but such argument also failed for the same reason. The Court found no evidence to show that there was a dangerous condition that the Big Box Retailer knew or should have known about and granted our client’s Motion for Final Summary Judgment. The Motion was argued by Stephanie H. Vo.

Brief Phone Glance Fails to Justify Punitive Damages in Crash Case 

Creech v. Santomassino, 395 So. 3d 549 (Fla. 4th DCA 2024)

The Fourth District Court of Appeal addressed whether the Plaintiff, Victor Herman Creech III, could amend his negligence complaint to seek punitive damages against Joseph Santomassino, the Defendant driver, after a traffic accident involving a truck and a golf cart. Creech alleged that Santomassino struck his golf cart at an intersection while texting on his phone, which constituted gross negligence or intentional misconduct sufficient to justify punitive damages.

During the Defendant’s deposition, Santomassino admitted that he briefly glanced at his phone upon receiving a text message from his wife but denied reading or responding to the message. He also testified that he looked back up and saw the collision after it occurred. Based on this admission, Creech sought to amend his complaint to include a claim for punitive damages. He proffered evidence that Santomassino’s actions violated Florida’s anti-texting statute, along with expert studies and anecdotal evidence about the dangers of texting while driving.

The trial court granted Creech’s motion, finding that the Defendant’s actions—driving through a busy intersection while distracted—were reckless and showed a conscious disregard for safety. The court also considered factors such as the timing of the accident during a crowded event (Halloween and the Fort Lauderdale Boat Show), which contributed to high traffic congestion.

On appeal, the Fourth District reversed the trial court’s decision. The appellate court found that Santomassino’s brief glance at his phone did not meet the threshold of gross negligence or intentional misconduct required to sustain a punitive damages claim. The court emphasized that Florida law reserves punitive damages for conduct so reckless or wanton as to equate to criminal manslaughter. While the Defendant’s behavior might constitute ordinary negligence, the evidence failed to show that he acted with a conscious disregard for the safety of others. Furthermore, the court noted that the Plaintiff’s proffered evidence, including unsworn affidavits and general studies about texting while driving, did not sufficiently establish a connection between Santomassino’s actions and the level of culpability required for punitive damages.

The decision underscores the stringent evidentiary requirements for amending complaints to include punitive damages under Florida law, requiring clear and convincing evidence of gross negligence or intentional misconduct.

No Notice, No Liability: Court Overturns Verdict in Ramp Fall Case

Eckert Realty Corp. v. Strazzeri, 396 So. 3d 220 (Fla. 4th DCA 2024)

The Fourth District Court of Appeal reviewed a premises liability case involving Ellen Strazzeri, who sued Eckert Realty after falling on a ramp outside the Deer Creek Real Estate office complex where she worked. Strazzeri alleged that the ramp’s slope was uneven and dangerously steep, violating building code requirements, and caused her to fall and suffer serious injuries.

At trial, Strazzeri testified that she had walked on the ramp hundreds of times over four years without incident but fell on this occasion while wearing wedge heels. She claimed the uneven slope of the ramp caused her fall. Her expert witness, an architect, testified that the ramp’s slope exceeded the limits set by the Americans with Disabilities Act (ADA) and the Florida Building Code, which require ramps to be no steeper than 8.33%. He concluded that the ramp’s design violated building codes and was unsafe.

Eckert Realty argued that it had no knowledge of any dangerous condition and presented evidence showing the ramp was constructed by a licensed contractor in 1999, passed all required inspections, and had been resurfaced and reinspected every five to six years. Additionally, no prior incidents or complaints about the ramp had been reported, despite over 1.8 million uses. Eckert moved for a directed verdict, asserting that Strazzeri failed to prove the company had actual or constructive notice of a hazardous condition or engaged in negligent maintenance. The trial court denied the motion, and the jury found Eckert 70% liable for Strazzeri’s injuries.

On appeal, the Fourth District reversed the trial court’s decision, ruling that Eckert’s motion for a directed verdict should have been granted. The appellate court emphasized that premises liability requires evidence that the property owner knew or should have known about the alleged hazard. It found that Strazzeri failed to show Eckert had actual or constructive notice of the ramp’s condition. The court also noted that Eckert complied with all relevant inspection and maintenance standards, further undermining claims of negligence.

Surprise Expert Testimony Triggers New Damages Trial in Slip-and-Fall

Seven Rests., LLC v. Tulecki, 391 So. 3d 949 (Fla. 4th DCA 2024)

The Fourth District Court of Appeal reviewed a slip-and-fall case where the Plaintiff, Richard Tulecki Jr., sought damages after allegedly slipping in a Burger King restroom. Tulecki claimed he fell due to grease on the restroom floor, which caused severe injuries requiring extensive medical treatment, including spinal surgery and subsequent complications. The case raised questions about liability, the admissibility of new expert testimony introduced mid-trial, and the appropriateness of punitive damages.

The incident occurred in July 2019, when Tulecki visited the restaurant and later reported a foul odor in the restroom. The manager checked the restroom and found the floor clean and dry but instructed an employee to clean it with a mop. Approximately 30–45 minutes later, Tulecki slipped and fell in the restroom, later recording a video of himself sliding on the floor. He attributed the slippery condition to grease, allegedly caused by improper cleaning practices. Tulecki filed a negligence lawsuit against Seven Restaurants, asserting the company had actual or constructive knowledge of the hazard but failed to address it properly.

During the trial, Tulecki’s medical expert, Dr. Jeremy Eckstein, significantly altered his opinion about the cause of Tulecki’s colon perforation, a critical injury that arose after his spinal surgery. While Dr. Eckstein initially testified during discovery that the cause of the perforation could not be determined with reasonable medical probability, he later testified at trial that it was most likely caused by Tulecki’s use of enemas to relieve constipation resulting from pain medication prescribed after the fall. Seven Restaurants objected to the admission of this new testimony, arguing it constituted an unfair surprise and prejudiced their ability to respond. The trial court allowed the testimony, and the jury awarded Tulecki nearly $7.5 million in damages.

On appeal, the court ruled that the trial court had abused its discretion by admitting the changed expert testimony mid-trial. It held that the franchisee was prejudiced because the new opinion significantly altered the expert’s level of certainty about causation, leaving the defense unable to adjust its strategy or present counter-evidence. The appellate court reversed the judgment and remanded the case for a new trial limited to damages, emphasizing the need to preserve fairness and prevent trial surprises.

County Escapes Liability for Stray Bullet Death Off Its Property

Bing v. Alachua Cnty., 392 So. 3d 266 (Fla. 1st DCA 2024)

The First District Court of Appeal reviewed the dismissal of a wrongful death lawsuit brought by Edward Bing, the personal representative of the estate of Kayla Nicole Bing Jackson. The case stemmed from a tragic incident where Jackson was fatally shot by a stray bullet while walking to her car after attending a “Thirsty Thursday” event in Gainesville. The shooter had fired the gun from a parking lot owned by Alachua County, but the bullet struck Jackson on an adjacent private property.

Bing alleged that Alachua County was negligent in maintaining its parking lot, failing to provide adequate lighting and security, and allowing the shooter to congregate there. He argued that the county’s failure to address these issues created a foreseeable zone of risk that extended beyond its premises, ultimately leading to Jackson’s death. Bing claimed the county owed a duty to protect individuals not only on its property but also in the immediate vicinity, given the conditions it allegedly allowed to persist on its premises.

The trial court dismissed Bing’s claim, reasoning that the county did not owe a duty to Jackson. The court emphasized that Jackson was not on county property at the time of the shooting and that there was no special relationship between the county and either Jackson or the shooter that would establish a legal duty of care. The court further held that while the incident may have originated on county property, the tortious act and resulting harm occurred on private property outside the county’s control.

On appeal, the First District affirmed the trial court’s dismissal. The appellate court agreed that the county had no legal duty to protect individuals from harm caused by third parties in areas it did not own or control. It rejected Bing’s argument that the county’s conduct created a foreseeable zone of risk, stating that foreseeability alone is insufficient to establish a duty of care without evidence of control over the harm’s instrumentality, location, or perpetrator. The court also distinguished this case from others where liability extended beyond a landowner’s property, noting the absence of any allegations that the county’s actions directly contributed to the conditions leading to the shooting.

The decision highlights the stringent requirements for imposing liability on a landowner for third-party criminal acts and underscores the importance of demonstrating a direct connection between a Defendant’s conduct and the harm suffered.

Sign Removal Dispute Falls Short of Punitive Damages Threshold

River Front Master Ass’n, Inc. v. N. Inv. Grp., LLC, No. 3D23-1472, 2024 Fla. App. LEXIS 8420 (Fla. 3d DCA Oct. 30, 2024)

The Third District Court of Appeal addressed a dispute over punitive damages in a commercial condominium setting. The case arose after North Investment Group, a unit owner, and its lessee, CWV Realty Group, claimed that the River Front Master Association unjustly removed signage and tinted the windows of their storefront. The plaintiffs argued that these actions, motivated by bad faith and intended to benefit a commercial rival, caused substantial financial harm to CWV’s real estate business.

The Plaintiffs’ unit was part of the Ivy Condominium in downtown Miami, a mixed-use property governed by the River Front Master Association. CWV had previously placed a large sign and real estate listings on its storefront, which were allowed under the condominium’s rules at the time. Later, the Association modified its policies to prohibit advertising displays in storefront windows and demanded that CWV remove its signage. When CWV did not comply, the Association or an unidentified party removed the signage and tinted the windows, allegedly resulting in a sharp decline in CWV’s sales.

The Plaintiffs sought punitive damages, alleging that the Association’s actions were not only improper but also carried out with malice and the intent to harm their business. The trial court granted their motion to amend the complaint to include punitive damages. The Association appealed, arguing that the allegations and evidence failed to meet the high threshold required for punitive damages, which are reserved for conduct that is particularly outrageous, fraudulent, or oppressive.

The appellate court agreed with the Association and reversed the trial court’s order. It held that the Association’s conduct, while potentially actionable under other legal and equitable remedies, did not rise to the level of “outrageous” or “wanton disregard” necessary to sustain a claim for punitive damages. The court emphasized that punitive damages are meant to punish conduct that shocks the conscience, such as deliberate fraud or gross negligence with a reckless disregard for others’ rights. In this case, modifying aesthetic policies and enforcing them, even if improperly motivated, did not meet this standard. The court concluded that traditional remedies, including damages, injunctions, and attorney’s fees, were sufficient to address the Plaintiffs’ claims.

al became possible.

Court Rules Proposal for Settlement Valid Despite Silence on Setoffs, Awards Fees

United CAB of Broward, LLC v. Muller, 397 So. 3d 80 (Fla. 4th DCA 2024)

The Fourth District Court of Appeal reviewed a dispute over a proposal for settlement (PFS) in a negligence case stemming from a car accident. The Plaintiff, Natalia Muller, sued the Defendants, United CAB of Broward and driver Ernsault Maurice, alleging that Maurice’s negligence in rear-ending her vehicle caused permanent injuries. Before trial, Maurice served Muller with a $5,000 PFS under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, offering to settle all claims. Muller rejected the offer by not responding within the 30-day statutory period.

At trial, the jury found both Maurice and Muller equally negligent, apportioning 50% fault to each. The jury awarded Muller $15,868.16 in damages for past medical expenses, with no award for future medical costs or permanent injuries. Post-trial, the court reduced the damages by setoffs totaling $17,039.52, accounting for personal injury protection (PIP) benefits and Medicaid discounts, resulting in a net judgment of $0 for Muller.

Maurice subsequently sought attorney’s fees under section 768.79, arguing that Muller’s rejection of the PFS entitled him to fees because the net judgment was at least 25% less than the PFS amount. The trial court denied the motion, reasoning that the PFS was invalid for failing to specify whether it included or excluded setoffs. Maurice appealed this decision, asserting that Florida law does not require a PFS to address setoffs explicitly.

The appellate court reversed the trial court’s ruling, holding that the PFS strictly complied with the statutory and procedural requirements. The court noted that the definition of “judgment obtained” under section 768.79 already incorporates setoffs by referring to the net judgment, making it unnecessary to include setoff language in the PFS itself. The appellate court further emphasized that adding a setoff requirement would improperly impose terms not included in the statute or procedural rule, risking unnecessary confusion.

The court concluded that Maurice’s PFS was valid and that he was entitled to attorney’s fees because the net judgment obtained by Muller was significantly less than the $5,000 settlement offer. The case was remanded to the trial court for a calculation of reasonable attorney’s fees.

ABOUT THE FIRM

Hamilton Miller & Birthisel, LLP is a boutique trial law firm specializing in the areas of 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 120 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.

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