Machin that the prescription was not what the doctor District Court of Appeal of Florida, ordered. Machin testified that she trusted her Third District. pediatrician and the pharmacy and therefore had no duty to do anything to assure that she was feeding her Iris MACHIN v WALGREEN CO. child the correct medicine. The jury found Machin comparatively negligent to the extent of 45% fault for Nov. 27, 2002. her daughter's condition. The trial court denied Machin's renewed motion for directed verdict and FLETCHER, Judge. entered judgment accordingly.
Iris Machin, on behalf of her daughter Melanie, has First, we state the obvious: that parents have a appealed a final judgment, arguing that there was constant and continuous duty as ordinary, prudent insufficient evidence to support the assessment of persons to watch over, supervise, and protect their 45% comparative negligence on part of Machin. We children who are too young to exercise judgment to affirm the final judgment. care for themselves. Persons chargeable with a duty of care and caution toward children must take the Machin took her 3-month-old daughter to her precautions which are available to them. Here, pediatrician for treatment of a mouth ailment. The Machin was clearly in the position to assure that the pediatrician diagnosed Melanie as having thrush, a dispensed medication was that prescribed by the common children's yeast infection, for which she pediatrician. She was handed a document, prescribed Nystatin, an antifungal oral suspension. Walgreen's data sheet, containing the information that Machin took the prescription to a Walgreen would have informed her that the medicine dispensed pharmacy to be filled. The Walgreen pharmacist was not the right one. The name Nystatin was not to incorrectly dispensed Triotann, the generic substitute be found on the data sheet, whereas the name not for Nystatin, but for the antihistamine- Rynatan and its generic, Triotann, were. The decongestant Rynatan. Along with the Triotann principal purpose of such data sheets is to inform the dispensed to Machin, the Walgreen's pharmacist purchaser which medicine is being placed in his or provided Machin with a data sheet advising that she her hands so that the purchaser can be assured that was receiving Triotann and that it is a generic the prescription has been filled properly. substitute for Rynatan. Nowhere on the data sheet (or the medicine container) did there appear the name Machin also contends that she was not negligent Nystatin. because she was not aware of the name of the medicine prescribed by the pediatrician. This does Machin gave the erroneously dispensed medicine to not relieve her from her parental duty. It was her daughter without first assuring--by reading the incumbent upon her to take the simple steps of data sheet or having it read for her [FN1]--that the inquiring of the pediatrician the name of the actually dispensed medicine was the one her prescribed medicine, checking the data sheet and the pediatrician prescribed. Melanie stopped eating and container of the actually dispensed medicine, then developed sleep problems. The thrush worsened. contacting her pediatrician when she discovered (as When this was reported to the pediatrician she she would have done) the discrepancy. discovered that the Walgreen pharmacist had dispensed the wrong medication. Removed from the We are not here faced with a situation in which a wrong medication and properly treated, Melanie's pediatrician prescribed the wrong medicine, which thrush infection disappeared quickly, but she would have given the parent little or no opportunity continued to experience a lack of appetite and to assure that the child was receiving the correct sleeping disorders for months thereafter. medicine. Rather we are dealing here with a situation in which the parent had the clear opportunity to perform her parental duty but did not do so. FN1. Machin does not read or speak Accordingly we affirm the final judgment. English, a fact which does not dilute or negate any duty she has toward Melanie. Affirmed.
At trial Walgreen contended that Machin was negligent by paying no attention to the data sheet, an examination of which would have quickly informed
1 and invoking the first exception to the parental immunity doctrine. Therefore, we reverse the order dismissing Gilbert's third amended complaint and Gilbert v Merritt remand for further proceedings consistent with this 4th DCA May 4, 2005. opinion.
PER CURIAM.
Barbara Gilbert appeals an order dismissing, with prejudice, her third amended complaint for failing to state a cause of action.
Gilbert alleged in her complaint that she was injured when a two-year-old child drove an "electric motorized passenger vehicle" into her leg while she was standing on the sidewalk. The child is the grandson of James and Janice Merritt and the son of Steven Merritt. [FN1] The child's nine-year-old sister was alleged to have been in the vehicle at the time of the incident.
FN1. James and Janice Merritt were alleged to have been acting in loco parentis at the time of the incident, as they were alleged to have been "caring for the minor children" of their son, Steven Merritt.
In Florida, the long-standing rule is that "a parent is not liable for the tort of his minor child because of the mere fact of paternity." There are four recognized exceptions to this rule. The only one pertinent to this case is the first exception that allows for parental liability where the parent entrusts the "child with an instrumentality which, because of the lack of age, judgment, or experience of the child, may become a source of danger to others."
In her complaint, Gilbert alleged the defendants allowed the two-year-old child to operate an "electric motorized passenger vehicle" which was "beyond his mental capacity to safely operate." Gilbert also alleged the child's youthful age and lack of judgment, as it related to this vehicle, caused the child to "become [a] source of danger to others." Finally, the complaint states the allegation that the child "was mentally and/or physically incapable of safely operating an electric motorized vehicle."
In moving to dismiss, the defendants claimed these allegations, and the entire complaint, failed to allege sufficient ultimate facts to invoke the first exception to the parental immunity doctrine; thus, the complaint failed to state a cause of action. We disagree. . .. In the instant case, we believe the complaint sufficiently alleges the necessary ultimate facts to state a cause of action sounding in negligence
2 District Court of Appeal of Florida, Fifth District. RELEASE AND INDEMNITY AGREEMENT Robin RAVESON and Richard Raveson, In consideration of the acceptance of my Her Husband, Appellants, participation and/or the participation of my v. child or ward, in the renting of a horse WALT DISNEY WORLD COMPANY, et from the Walt Disney World Company, al., Appellees. and with the understanding that a horse may be startled by sudden movement, Nos. 5D00-2196, 5D00-2473. noise or other factors, and may shy suddenly, rear, stop short, bite, buck, kick Sept. 14, 2001. or run with its rider, especially when the ride is conducted through a natural setting, . as this ride will be, I AGREE TO ASSUME THE RISKS incidental to such PETERSON, J. participation including, but not limited to, those risks set out above, and, on my own Robin and Richard Raveson appeal a final behalf, on behalf of my child or ward, and summary judgment granted to Walt Disney on behalf of my child's or ward's heirs, World Company, et al. (Disney), in an executors and administrators, RELEASE action brought by the Ravesons for injuries and forever discharge the released parties received when the horse Robin was riding defined below, of and from all liabilities, on at Disney's Fort Wilderness reared as she claims, actions, damages, costs or was dismounting. The Ravesons contend expenses of any nature, arising out of or in that Disney was negligent in failing to any way connected with my participation properly train the horse and the employees and/or the participation of my child or who supervised the ride. ward in such horseback riding and further agree to indemnify and hold each of the Before Robin began the ride, she signed a released parties harmless against any and release and indemnity agreement which all such liabilities, claims, actions, specifically provided the following: damages, costs or expenses, including, but not limited to, attorney's fees and WARNING disbursements. The released parties are UNDER FLORIDA LAW, AN EQUINE the Walt Disney World Company and ACTIVITY SPONSOR, OR EQUINE Lake Buena Vista Communities, Inc., their PROFESSIONAL, IS NOT LIABLE FOR parent, related, affiliated and subsidiary AN INJURY TO, OR THE DEATH OF, companies, and the officers, directors, A PARTICIPANT IN EQUINE employees, agents, representatives, ACTIVITIES RESULTING FROM THE successors and assigns of each. I INHERENT RISKS OF EQUINE understand that this release and indemnity ACTIVITIES [FN1]. agreement includes any claims based on the negligence, actions or inaction of any FN1. This warning complies with the of the above released parties and covers notification requirement found in bodily injury and property damage, section 773.04, Florida Statutes whether suffered by me, my child or ward (1997). before, during, or after such participation.
3 I further authorize medical treatment for participant resulting from any of the said child or ward, at my cost, if the need inherent risks of equine activities. arises. [1][2] We agree with the reliance of the trial The trial court granted summary judgment court on the release and indemnity to Disney based upon the above release and agreement in finding Disney not liable. In indemnity agreement and upon section Lantz v. Iron Horse Saloon, Inc., 717 So.2d 773.01(6), Florida Statutes (1997), relating 590 (Fla. 5th DCA 1998), this court held to equine activities, which provides: that exculpatory claims will release a party's (6) "Inherent risks of equine activities" own negligence "to the extent that the means those dangers or conditions which intention to be relieved from liability was are an integral part of equine activities, made clear and unequivocal in the contract; including but not limited to: wording must be so clear and (a) The propensity of equines to behave in understandable than an ordinary and ways that may result in injury, harm, or knowledgeable party will know what he is death to persons on or around them. contracting away." Id. at 591 (citing (b) The unpredictability of an equine's Greater Orlando Aviation Authority v. reaction to such things as sounds, sudden Bulldog Airlines, Inc., 705 So.2d 120 (Fla. movement, and unfamiliar objects, persons 5th DCA 1998)). The exculpatory clause or other animals. included in the release that Robin Raveson (c) Certain hazards such as surface and signed prior to mounting the horse in the subsurface conditions. instant case clearly meets that requirement.
* * * Additionally and separately from the release (e) The potential of a participant to act in a and indemnity agreement, section 773.02, negligent manner that may contribute to Florida Statutes may serve to release Disney injury to the participant or others, such as from liability. Chapter 773, Florida Statutes failing to maintain control over the animal recognizes the inherent risks of equine or not acting within his or her ability. activities and eliminates the liability of equine professionals from claims by a Section 773.02 further provides the participant in an equine activity. See Fla. following general provision: Stat. § 773.01(5), (6), & (7) (1997). Section [A]n equine activity sponsor, an equine 773.03(2)(b) does not eliminate liability professional, or any other person, which when an equine professional fails to make shall include a corporation or partnership reasonable and prudent efforts to determine [such as Disney], shall not be liable for an the ability of the participant to engage safely injury to or the death of a participant [such in the equine activity, or to determine the as Raveson] resulting from the inherent ability of the participant to safely manage risks of equine activities and, except as the particular equine based on the provided in s. 773.03, no participant nor participant's representation of his or her any participant's representative shall have ability. Robin Raveson admits that Disney any claim against or recover from any requested her to describe her horse riding equine activity sponsor, equine experience and she responded with "some professional, or any other person for years ago." injury, loss, damage, or death of the
4 The provision contained in section allowing one to obtain a release and 773.03(2)(b) may be an obstacle to an indemnity agreement would be ineffective in equine professional obtaining a summary extinguishing potential liability. judgment in a majority of the cases involving the type of trail rides involved in We also note a decision by the fourth this case where there exists no prior or district in Dilallo v. Riding Safely, Inc., 687 ongoing relationship among participant, So.2d 353 (Fla. 4th DCA 1997) that is professional, and equine. There is usually instructional in the analysis of the instant much to discuss regarding a participant's case. In Dilallo, a 14-year old leased a "ability" and the "particular equine" matched horse once before the date of an accident. to the ability. [FN2] It is not in this instance On that earlier ride, the horse moved no because the release and indemnity faster than a walk. On the second ride on agreement, independent of the statutory another day, the unpredictable nature of the provisions of Chapter 773 eliminated equine surfaced and it began to move on its Disney's liability for a negligent act, if any own initiative at a faster gait. All attempts to occurred. stop the horse failed and the rider was injured when the branch of a tree became FN2. While some degree of imbedded in her leg as the horse ran close to matching may be possible, section a tree. The Fourth District reversed the trial 773.01(6) seems to contradict the court's finding that the equine professional exclusion of liability provided in was not liable to the participant because of section 773.02 against the propensity the liability exclusions of Chapter 773 and a of equines to behave in ways that release and indemnity agreement. The may result in injury, harm, or death reversal was based upon the inapplicability and the unpredictability of an of Chapter 773 because the effective date equine's reaction to such things as post-dated the accident and an infant was sounds, sudden movement, and legally incompetent to execute the release unfamiliar objects, persons, or other and indemnity agreement. The case is animals. Robin Raveson instructional in that the release and successfully and without incident indemnity agreement signed by the mounted and rode the horse assigned participant included language similar to but to her on a trail ride. It was not until less specific than that continued in Disney's the final moment of the event as she release and indemnity agreement. The was dismounting that the equine Dilallo opinion states: unpredictably moved in a manner We find the release in this case does that caused her injury. clearly state that ... [the equine sponsor] is released from liability for its own Nothing appears in Chapter 773 or its negligence. This factual scenario would history that would restrict an equine support summary judgment, had ... [the professional from obtaining a release and participant], the person signing this indemnity agreement in order to eliminate complete waiver of her rights, not been a liability that would survive the limitations of minor. Chapter 773. The language of the Id. at 355. exceptions to the limitation of liability found in section 773.03 does not specifically state We affirm the summary judgment granted or even suggest that the body of law to Disney on the ground that the release and
5 indemnity agreement signed by Robin Raveson, an adult, was effective to release Disney from its own negligence, if any existed.
Lastly, we also affirm the trial court's award of costs and attorney's fees to Disney based on the clear language of the release and indemnity agreement.
AFFIRMED.
6 apportioned to that defendant based on that Fl. Stat. 768.81. Comparative fault defendant's percentage of fault.
(b) Where a plaintiff is found to be without fault, the following shall apply: (1) Definition.--As used in this section, "economic damages" means past lost income and future lost 1. Any defendant found less than 10 percent at fault income reduced to present value; medical and shall not be subject to joint and several liability. funeral expenses; lost support and services; replacement value of lost personal property; loss of 2. For any defendant found at least 10 percent but appraised fair market value of real property; costs of less than 25 percent at fault, joint and several liability construction repairs, including labor, overhead, and shall not apply to that portion of economic damages profit; and any other economic loss which would not in excess of $500,000. have occurred but for the injury giving rise to the cause of action. 3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several (2) Effect of contributory fault.--In an action to liability shall not apply to that portion of economic which this section applies, any contributory fault damages in excess of $1 million. chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic 4. For any defendant found more than 50 percent at damages for an injury attributable to the claimant's fault, joint and several liability shall not apply to that contributory fault, but does not bar recovery. portion of economic damages in excess of $2 million.
(3) Apportionment of damages.--In cases to which this section applies, the court shall enter judgment For any defendant under subparagraph 2., against each party liable on the basis of such party's subparagraph 3., or subparagraph 4., the amount of percentage of fault and not on the basis of the economic damages calculated under joint and several doctrine of joint and several liability, except as liability shall be in addition to the amount of provided in paragraphs (a), (b), and (c): economic and noneconomic damages already apportioned to that defendant based on that (a) Where a plaintiff is found to be at fault, the defendant's percentage of fault. following shall apply: (c) With respect to any defendant whose percentage 1. Any defendant found 10 percent or less at fault of fault is less than the fault of a particular plaintiff, shall not be subject to joint and several liability. the doctrine of joint and several liability shall not apply to any damages imposed against the defendant. 2. For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability (d) In order to allocate any or all fault to a nonparty, shall not apply to that portion of economic damages a defendant must affirmatively plead the fault of a in excess of $200,000. nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the 3. For any defendant found at least 25 percent but nonparty as specifically as practicable, either by not more than 50 percent at fault, joint and several motion or in the initial responsive pleading when liability shall not apply to that portion of economic defenses are first presented, subject to amendment damages in excess of $500,000. any time before trial in accordance with the Florida Rules of Civil Procedure. 4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that (e) In order to allocate any or all fault to a nonparty portion of economic damages in excess of $1 million. and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of For any defendant under subparagraph 2., the evidence, the fault of the nonparty in causing the subparagraph 3., or subparagraph 4., the amount of plaintiff's injuries. economic damages calculated under joint and several liability shall be in addition to the amount of (4) Applicability.-- economic and noneconomic damages already
7 (a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.
(b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895
(5) Notwithstanding anything in law to the contrary, in an action for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort, when an apportionment of damages pursuant to this section is attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.
8 Supreme Court of Florida. The court employed the following reasoning to conclude that the statute was ambiguous: Marie G. FABRE, et vir, Petitioners, The statute does not define the term "party." As v. used in subsection three, "party" may be Ann MARIN, Respondent. interpreted as referring to: 1) persons involved in an accident; 2) defendants in a lawsuit; or 3) all Aug. 26, 1993. litigants in the lawsuit. Despite appellants' urging to the contrary, we decline to apply the first interpretation: subsection three requires a court to GRIMES, Justice. enter judgment against liable parties; the court lacks jurisdiction to enter a judgment against We review Fabre v. Marin, 597 So.2d 883 (Fla. 3d nonparties, such as Ramon. DCA 1992), based upon its certified conflict with [another case]. Fabre v. Marin, 597 So.2d at 885. After pointing out that Mrs. Marin could not recover damages from Ann Marin was injured in an accident while riding as her husband because of the doctrine of interspousal a passenger in an automobile driven by her husband, tort immunity, the court concluded that in discarding Ramon Marin. Mrs. Marin sued Marie and Eddie joint and several liability, the legislature did not Fabre, claiming that while driving her husband's intend to curtail a fault-free plaintiff's ability to automobile Mrs. Fabre had negligently changed lanes recover the total of her damages. Rather, the in front of the Marin vehicle, causing it to swerve legislature intended only to apportion liability among into a guardrail. those tortfeasors who were defendants in the lawsuit. Hence, the court affirmed the full amount of the At the jury charge conference, the trial judge denied judgment. the defendants' request that the verdict form be drafted so as to allow the jury to apportion blame for In Messmer, the Fifth District Court of Appeal the accident between Mr. Marin and Mrs. Fabre. reached the opposite conclusion in applying section However, to obviate the necessity of a retrial if this 768.81(3) to facts which for purposes of this appeal ruling later proved to be erroneous, Mrs. Marin were the same as those in the instant case. agreed to have the issue of Mr. Marin's negligence submitted to the jury subject to a posttrial The doctrines of contributory negligence and joint determination of whether any affirmative finding on and several liability have been part of our common that issue would result in a reduction of Mrs. Marin's law for many years. In the case of the former, even recovery. The jury returned a verdict finding both if the plaintiff's negligence was only partially Mrs. Fabre and Mr. Marin 50% at fault. The jury responsible for the accident, there could be no awarded Mrs. Marin $12,750 in economic damages recovery from defendants who may have been guilty and $350,000 in noneconomic damages. of even greater negligence. In the case of the latter, all negligent defendants were held responsible for the On appeal, the issue was whether the liability for total of the plaintiff's damages regardless of the noneconomic damages should be apportioned to the extent of each defendant's fault in causing the Fabres on the basis of the percentage of fault accident. attributed to them. Hence, the district court of appeal was called upon to interpret section 768.81(3), In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), this Florida Statutes (Supp.1988), which states: Court took the first step toward equating liability (3) APPORTIONMENT OF DAMAGES.--In cases with fault. In receding from the doctrine of to which this section applies, the court shall enter contributory negligence, this Court said: judgment against each party liable on the basis of If fault is to remain the test of liability, then the such party's percentage of fault and not on the basis doctrine of comparative negligence which involves of the doctrine of joint and several liability; apportionment of the loss among those whose fault provided that with respect to any party whose contributed to the occurrence is more consistent percentage of fault equals or exceeds that of a with liability based on a fault premise. particular claimant, the court shall enter judgment with respect to economic damages against that Subsequently, the doctrine of joint and several party on the basis of the doctrine of joint and liability was severely tested in Walt Disney World several liability. Co. v. Wood, 515 So.2d 198 (Fla.1987), a case in which the jury had returned a verdict finding the
9 plaintiff 14% at fault, Walt Disney World 1% at fault, incongruous that the legislature would have intended and the plaintiff's fiance who was not joined as a that the Fabres' responsibility be 100% in situations defendant 85% at fault. While recognizing the logic where Mrs. Marin's vehicle was operated by her in Disney's position that it should not be responsible husband and only 50% situations where by chance for 86% of the damages, we declined to judicially she was a passenger in a vehicle operated by a eliminate joint and several liability on the premise friend. that this was a public policy matter which would be best decided by the legislature. The legislature acted By eliminating joint and several liability through the upon the subject by enacting section 768.81(3). enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a We conclude that the statute is unambiguous. By its plaintiff should take each defendant as he or she finds clear terms, judgment should be entered against each them. [FN1] If a defendant is insolvent, the judgment party liable on the basis of that party's percentage of of liability of another defendant is not increased. fault. The Fabres' percentage of fault was 50%. To The statute requires the same result where a potential accept Mrs. Marin's position would require the entry defendant is not or cannot be joined as a party to the of a judgment against the Fabres in excess of their lawsuit. Liability is to be determined on the basis of percentage of fault and directly contrary to the the percentage of fault of each participant to the wording of the statute. We reject the suggestion that accident and not on the basis of solvency or the statute is ambiguous because it fails to define the amenability to suit of other potential defendants. "whole" by which a party's percentage of fault is to The fact that Mrs. Marin could not sue her husband be determined. The "fault" which gives rise to the does not mean that he was not partially at fault in accident is the "whole" from which the fact-finder causing the accident. determines the party-defendant's percentage of liability. Clearly, the only means of determining a party's percentage of fault is to compare that party's FN1. By retaining joint and several liability percentage to all of the other entities who contributed for cases in which the damages do not to the accident, regardless of whether they have been exceed $25,000 and for economic damages or could have been joined as defendants. in which a defendant's percentage of fault exceeds that of the plaintiff, the legislature Even if it could be said that the statute is ambiguous, continued to recognize the justification for we believe that the legislature intended that damages joint and several liability under some be apportioned among all participants to the accident. circumstances. The abolition of joint and several liability has been advocated for many years because the doctrine has Accordingly, Mrs. Marin's judgment should be been perceived as unfairly requiring a defendant to reduced by 50% of her noneconomic damages. pay more than his or her percentage of fault There should be no reduction in economic damages because under section 768.81(3), joint and several This Court has already noted that the act disfavors liability continues to apply when a defendant's joint and several liability to such a degree that it negligence equals or exceeds that of the plaintiff. survives only in those limited situations where it is We quash the decision below and remand for expressly retained. We are convinced that section proceedings consistent with this opinion. 768.81 was enacted to replace joint and several liability with a system that requires each party to pay It is so ordered. for noneconomic damages only in proportion to the percentage of fault by which that defendant BARKETT, Chief Justice, dissenting. contributed to the accident. The majority's conclusion is at odds with the very Accepting Mrs. Marin's position would mean that, essence of tort law, which provides that in a suit depending on who was sued, a defendant could be between an innocent victim and a negligent party, the required to pay a greater proportion of the damages innocent victim should be made whole by receiving than his or her proportion of fault in causing the damages from a negligent party. Because the accident. In essence, she contends that her husband's language of the statute does not compel the majority's degree of negligence in the occurrence of the conclusion in this case, I dissent. accident is irrelevant because he was not a defendant and that judgment should be entered against the The Legislature undeniably intended section Fabres for 100% of her damages. It would be 768.81(3), Florida Statutes (Supp.1988), to apply to
10 the typical situation where each potentially at-fault person or entity is joined as a party in an action, allowing the apportionment of damages among the at-fault parties in the suit. However, nowhere in the statutory language or in legislative history has the Legislature made clear its intent to apply the statute to nonparties in the unusual situation presented by these facts.
The better interpretation is the one that most closely adheres to the goals of tort law and remains consistent with the other policies implemented by the Florida Legislature. The district court's interpretation in Fabre accomplishes this goal.
11 BURCH v. SUN STATE FORD, INC willful or wanton reckless driving. Based upon 864 So. 2d 466 Beauford's conviction, the court concluded that no material dispute existed as to the fact that Beauford 5th DCA Jan. 2, 2004. had engaged in intentional misconduct and that summary judgment was compelled by the First TORPY, J. District's decision in .Caetano v. Bridges ,
Appellants, as joint personal representatives of In Caetano, the defendant borrowed her father's car Aaryon Miles' estate, challenge the entry of summary and drove to Pensacola Beach to look for her judgment in favor of Appellee, Sun State Ford, Inc., boyfriend. When she found her boyfriend, he was in ("Sun State") in this wrongful death case. The lower a local drinking establishment in the company of two court determined that Sun State, as owner of the other women. She waited for him in the parking lot, vehicle driven by Willie Gene Beauford, Jr. observed him walking hand-in-hand with the two ("Beauford"), was not vicariously liable under the women, became angry and tried to run him over. dangerous instrumentality doctrine ("the doctrine") Although her boyfriend escaped injury, she injured because Beauford's manner of driving amounted to one of the women (the plaintiff) in his company. The intentional misconduct. We reverse. facts were in dispute, however, as to whether she intended to injure the plaintiff or run over her Beauford drove his girlfriend, Teresa Wilson disloyal boyfriend. ("Wilson"), and her friend, Bridget Lee ("Lee"), to the Caribbean Club, a nightclub in Orange County. . . .. Beauford dropped Wilson and Lee off and went to visit with a friend. Later, Beauford picked up Wilson Appellants urge that "intentional misconduct," as and Lee from the Caribbean Club and dropped them used by Caetano, means the type of conduct that off at another club, Hero's. While Wilson and Lee occurred there--the use of a motor vehicle in a were in Hero's, Beauford played cards with a friend, weapon-like manner with the specific intent to injure during which time he drank "a couple of beers." the plaintiff. Sun State, on the other hand, asks that Approximately two hours after dropping Wilson and we construe Caetano's "intentional misconduct" Lee off at Hero's, Beauford returned to Hero's to pick language very literally to exclude from the doctrine's them up. When he arrived, he observed Wilson and application any type of intentional misuse of a Lee getting into a car being driven by the decedent, vehicle, including reckless driving. . . . . While we Aaryon Miles ("Miles"). As the vehicle drove by, do not fully agree with either party's position, we Beauford observed Lee and Miles arguing. He began reject Sun State's position because we disagree with to follow the vehicle, eventually catching up to them its interpretation of Caetano. Alternatively, to the at a red light. extent that Caetano may be read to stand for the proposition that any type of intentional misuse of a At some point Miles stopped his vehicle; Beauford vehicle results in the severance of liability under the then got out of his vehicle and approached Miles' doctrine, we decline to follow it. We conclude that vehicle. When Beauford approached, Miles drove such a proposition is inconsistent with the Florida off. Beauford returned to his vehicle and began to Supreme Court's decisions that created and refined chase Miles' vehicle. During the chase, both vehicles the doctrine, the established tort precepts upon which traveled at high rates of speed and committed the doctrine was based, and the policies underlying numerous traffic violations. The chase ended, the doctrine. however, when Miles lost control of his vehicle and hit a tree. The collision resulted in the death of Miles The dangerous instrumentality doctrine was adopted and severe injuries to Wilson and Lee. Beauford by the Florida Supreme Court in 1920. It is premised denied that he had intended to harm any of the on the belief that a vehicle, when used for its occupants of the vehicle. He stated that he followed designed purpose, is likely to cause serious injury to them because it looked like they were arguing and he others. Although originally only applicable in the was curious and concerned for the safety of Wilson master-servant context, the doctrine was later and Lee. extended to bailments, including lessor-lessee relationships. The doctrine imposes strict liability The vehicle Beauford was driving belonged to Sun upon the owner of a motor vehicle by requiring that State. Sun State had rented the vehicle to Beauford's an owner who "gives authority to another to operate sister who, in turn, had loaned it to Beauford. As a the owner's vehicle, by either express or implied result of the incident, Beauford was convicted of consent, has a nondelegable obligation to ensure
12 that the vehicle is operated safely." The doctrine is underlie the doctrine: to provide greater financial intended to foster greater financial responsibility to responsibility to pay for injuries and to encourage pay for injuries caused by motor vehicles because the owners to entrust their vehicles to responsible owner is in the best position to ensure that there are drivers, thereby reducing the risk of injuries to others. adequate resources to pay for damages caused by its Absent any countervailing policy for allowing an misuse. The doctrine also serves to deter vehicle owner to escape liability when, instead of entrusting owners from entrusting their vehicles to drivers who his car to a negligent driver, he entrusts it to a are not responsible by making the owners strictly reckless one, we fail to see why the doctrine should liable for any resulting loss. be limited in the fashion urged by Sun State.
The only state to have adopted the doctrine by . . . judicial decision, Florida's doctrine is unique and has We conclude, therefore, that the doctrine is not few exceptions. It borrows characteristics from both limited to negligent operation of a vehicle and that concepts of strict liability based upon ultra-hazardous reckless driving or other intentional misconduct by an activity and vicarious liability under master-servant operator does not terminate liability under the law. Liability of the owner is said to be "strict" doctrine. because a plaintiff need not prove that an owner negligently entrusted the vehicle to its operator for We are left to consider whether any manner of liability to attach. However, the doctrine is improper driving will cut off an owner's liability distinguished from strict liability for ultra-hazardous under the doctrine. On this issue, we conclude that, activity, because the plaintiff must prove some fault, when a vehicle is used in a weapon-like manner with albeit on the part of the operator, which is then the intent to inflict physical injury, imputed liability imputed to the owner under vicarious liability under the doctrine ends. principles.. Although under master-servant law, the master is vicariously liable for the acts of the servant We start our analysis of this issue by noting that the when the servant acts within the scope of his parties agree that improper driving by an operator can employment, the doctrine imputes liability to an cut off liability under the doctrine. The point of owner even when the operator disobeys restrictions disagreement is one of degree. Again, we address on the use of the vehicle, unless the disobedience this issue without benefit of any express guidance by rises to the level of theft or conversion. As stated in the supreme court. However, we believe that our Leonard: conclusion finds support in established tort theory, Where dangerous instrumentalities are utilized such as principles of strict liability, from which the then, contrary to ordinary master-servant law, with doctrine is derived, and the tort precept of transferred practical unanimity, the courts hold the master intent. liable for damages caused thereby, even though the servant, who has the sole custody and control The doctrine is a derivative of the common law tort thereof, is at the time acting willfully, wantonly, of strict liability for ultra-hazardous activity. This and in disobedience to his master's order ... the common law doctrine is premised on the notion that public safety demands that he shall be answerable one who exposes other persons to injury by for the exercise of his servant's judgment. This undertaking extraordinary risk, should bear underlying theory is equally applicable to the field responsibility when harm results. Liability is never of bailment. If the owner of such a vehicle cannot, imposed under the strict liability doctrine, however, in the performance of his primary duty to the when an implement or machine is used for a purpose public to see that it is *471 used in a safe and different than that for which it is designed, such as proper manner, substitute or delegate such duty to a when a hammer is used as a deadly weapon. servant, then neither can he by contract substitute a Operation of a vehicle falls within the strict liability bailee, except, of course, as between the parties to doctrine because a vehicle is dangerous to others such contract. when used for its "designed purpose." The liability undertaken by the owner of a vehicle, therefore, Because an owner's liability is "strict" and his relates to the potential for injury when it is used as a obligation is to "ensure that the vehicle is operated conveyance. This is the liability for which an owner safely," without regard to whether the operator is should be expected to provide insurance. When a disobedient, it follows logically that the manner of an vehicle causes harm because it is used like a weapon, operator's bad driving should not generally affect the a purpose for which it is not designed, however, the owner's liability. Moreover, a distinction based on doctrine does not impose liability, unless its use in the manner of driving contravenes the policies that this manner is reasonably foreseeable. We think that
13 the longstanding policies behind the doctrine are adequately served without extending the doctrine's applicability to such an unforeseen use. We note that our conclusion is in agreement with the position espoused in the Restatement (Third) of Torts, § 24 (Tentative Draft No. 1, 2001), addressing strict liability for abnormally dangerous activities..
. . . In sum, we hold that the doctrine applies even when an operator is involved in intentional misconduct, unless the operator makes weapon-like use of the vehicle with the intent to cause physical harm. However, if the weapon-like use of the vehicle is reasonably foreseeable to the owner, liability will be imputed nevertheless. Because this analysis involves the operator's state of mind, it will ordinarily be a question of fact for the jury. In this case, summary judgment was improper. Beauford's intent in following and then chasing Miles is unclear. On this record, a jury could certainly conclude that Beauford did not intend to use his vehicle to cause physical injury.
14 system. The club also offered the testimony of an TREMBATH v. BEACH CLUB, INC architect who opined that the club, as an existing 860 So. 2d 512 building, would not have been required to install the sprinkler system until the fire marshal, in his 4 DCA Dec. 3, 2003. judgment, believed it was necessary. He further STONE, J. testified that the accident of January 16, 1999, caused the fire marshal, John Wandell, to focus attention on The Beach Club, Inc. (the club) sued the appellants the club. (Trembath) for damages caused by Trembath crashing his rental car into the club's building. The It is undisputed that the fire sprinkler violation was damages included the costs of repair, along with the not picked up in an earlier routine inspection. The cost of installing a fire sprinkler system in the fire marshal, however, now inspected the club as a building where, after the incident, the club was result of the fire caused by the accident. Upon the discovered to be in violation of the Life Safety Code, fire marshal's inspection, he required, as authorized established pursuant to section 633.025, Florida by the code provisions, that a sprinkler system be Statutes. We conclude that the record demonstrates installed. that the installation of a sprinkler system was not proximately caused by the accident, and reverse. Clearly, even if the club never applied for a building permit, and had let the building stay as is, it would, The facts were stipulated in the trial court, the only nevertheless, have been required to put in new issue before the court was whether, as a matter of sprinklers upon discovery of the existing conditions law, Tremath's accident could be the proximate cause by a fire marshal. The inspection performed after the of the club's additional damage required in order to accident was the first complete Life Safety Code comply with the code. inspection, although an earlier routine inspection was made by the fire department, whose agents simply Section 633.025(3) provides that the most current completed standard checklists of whether items such edition of the National Fire Protection Association as fire extinguishers were in place. The discovery of 101, Life Safety Code, adopted by the state fire this violation, however, required a more thorough marshal, is deemed to be adopted by each city and inspection of the physical structure. county as part of its minimum fire safety code. The application of the 1997 version of the code, which The appellants offered the testimony of John T. became effective just a month prior to the accident, Wandell, the fire marshal for the Town of Palm mandated that "assembly occupant" facilities, which Beach, who ordered the upgrade. His testimony was would include the club, have fire protection which, not challenged. He stated unequivocally that the club here, would include a fire sprinkler system. was not in compliance with the code before the accident. The marshal testified that the club held The Life Safety Code includes an exception to its functions in the second story of the building and, requirements for existing buildings that provides: because he thought fire could progress, there was "a 9-1.1.1 The requirements of this chapter apply to threat to life safety." When he was able to determine, existing buildings or portions thereof currently after the accident, that structural members of the occupied as assembly occupancies. building were not protected, he ordered that the lack Exception: An existing building housing an of fireproofing be remedied. assembly occupancy established prior to the effective date of this Code shall be permitted to be Finally, the fire marshal testified that if he had done approved for continued use if it conforms to or is the same thorough inspection before the accident as made to conform to the provisions of this Code to he had performed after the accident, he would have the extent that, in the opinion of the authority reached the same conclusion; that the club was not in having jurisdiction, reasonable life safety against compliance with the code. He explained that the the hazards of fire, explosion, and panic is accident allowed him to perform a more thorough life provided and maintained. safety inspection of the club than might otherwise The authority having jurisdiction is the fire marshal. have occurred. During that inspection, he and the building inspector opened up some tiles and observed The director of planning for the Town of Palm exposed steel. The marshal admitted he had Beach testified, confirming that prior to the accident, inspected the club on a number of occasions over the the club, an assembly occupancy building, had not seventeen years he was fire marshal, but had always been required by the town to install a fire sprinkler assumed that the club was fire rated. When the more
15 in-depth inspection was conducted after the crash, he learned that it was not. The accident was not the proximate cause, as it was not a cause-in-fact of the club's requirement to As to routine in-service inspections done by agent presently upgrade; rather, the duty existed separate ladder personnel, the fire marshal explained that they and apart from any outside event. The true proximate are not responsible for determining whether a cause of the expense arose when the code was structure is in compliance with the code. Instead, the adopted. See McCain v. Florida Power Corp., 593 inspections verified whether fire extinguishers were So.2d 500, 502 (Fla.1992)(holding that the proximate present and properly maintained. While "sprinklers" cause element of negligence "is concerned with were listed on the checklist inspection sheets, if the whether and to what extent the defendant's conduct in-service inspectors indicated "N/A" next to foreseeably and substantially caused the specific "sprinklers," that did not mean that the club was injury that actually occurred."). found to be exempt; instead, it simply indicated that the sprinklers did not exist. "[F]or proximate cause to exist, there must be such a natural, direct and continuous sequence between the We conclude that Trembath's accident was not the negligent act and the injury that it can reasonably be proximate cause of the club's requirement to comply said that but for the act the injury would not have with the code. Rather, the code, when adopted, occurred." Here, even the club's expert required that the club comply with its mandates. The acknowledged that he could not say that "but for" the club had an affirmative duty to be in compliance with collision, the club would not have been required to the Life Safety Code, if it did not fall within the put in the sprinkler system. exceptions. The fire marshal's testimony demonstrates that it did not. Responsibility for the Therefore, the judgment is reversed. On remand, the club's decision not to voluntarily comply with the trial court shall amend the judgment to delete this code cannot now be passed off to Trembath simply item of damages. because his accident indirectly led to the fire marshal's discovery of the club's code violations. Therefore, the club, alone, is responsible for the cost of bringing the building into compliance as to this item of damage.
We recognize that under other circumstances the damages for cost of repair may include the expense necessary to conform the repairs to existing building codes. Here, however, the club was already obligated to make the mandatory repairs.
Prior to the accident, the club was required, by law, to install the sprinkler system and otherwise comply with the code. . . . That the club chose not to comply with the 1998 mandate until the fire marshal's inspection is not grounds for relieving the club of the responsibility.
Before an occurrence can be a proximate cause of a injury, it must be determined to be a cause-in-fact of that injury. Stahl v. Metropolitan Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983)(explaining that Florida courts, in accordance with most other jurisdictions, have historically followed the so-called "but for" causation-in-fact test; that is, "to constitute proximate cause there must be such a natural, direct and continuous sequence between the negligence act [or omission] and the [plaintiff's] injury that it can reasonably be said that, but for the [negligent] act [or omission] the injury would not have occurred."
16 Supreme Court of Florida. present case, Florida Power clearly was under a duty to take reasonable actions to prevent the Thomas McCAIN, Petitioner, general type of injury that occurred here. v. Moreover, there is sufficient evidence in the FLORIDA POWER CORPORATION, record to justify a reasonable person in believing Respondent. that Florida Power breached this duty and that the breach proximately (i.e., foreseeably and 593 So. 2d 500 substantially) contributed to the specific injury Jan. 23, 1992. McCain suffered. Thus, the question of Rehearing Denied March 4, 1992. negligence could not be removed from the jury.
KOGAN, Justice. The confusion evident in the district court's opinion apparently arose from the fact that the Thomas McCain was injured when the blade of question of foreseeability can be relevant both to a mechanical trencher he was operating struck the element of duty (the existence of which is a an underground Florida Power Corporation question of law) and the element of proximate electrical cable. An employee of Florida Power causation (the existence of which is a question had come out earlier and marked those areas of fact). The temptation therefore is to merge where it would be safe to use the trencher. the two elements into a single hybrid Although the evidence at trial was conflicting, "foreseeability" analysis, or to otherwise blur the there was some evidence indicating that McCain distinctions between them. A review of both was in an area marked "safe" when he struck the precedent and public policy convinces us that cable. Later, a jury awarded McCain a verdict such blurring would be incorrect, even though it of $175,000, including a thirty-percent reduction often will yield the correct result. The present for McCain's own comparative negligence. cause happens to be one of a minority of cases in which an imprecise foreseeability analysis On appeal, the Second District reversed and would lead to the wrong result. remanded for entry of a directed verdict for Florida Power, concluding that the injury was Contrary to the tacit assumption made by the not foreseeable. The method of analysis used to district court, foreseeability relates to duty and reach this conclusion is somewhat unclear. The proximate causation in different ways and to district court first cited a number of cases different ends. The duty element of negligence suggesting that foreseeability itself gives rise to focuses on whether the defendant's conduct the duty of care in a negligence action. McCain, foreseeably created a broader "zone of risk" that 555 So.2d at 1270-71. Since duty is a question poses a general threat of harm to others. The of law, an appellate court obviously could proximate causation element, on the other hand, reverse based on its purely legal conclusion that is concerned with whether and to what extent the no such duty existed. defendant's conduct foreseeably and substantially caused the specific injury that Then, the district court acknowledged the actually occurred. In other words, the former is seemingly contradictory holding of some Florida a minimal threshold legal [FN1] requirement courts "that the question of foreseeability is for for opening the courthouse doors, whereas the the trier of fact." Without expressly disagreeing latter is part of the much more specific factual with this precedent, the district court went on to requirement that must be proved to win the case suggest that no duty existed in the present case once the courthouse doors are open. As is as a matter of law because the specific injury obvious, a defendant might be under a legal duty suffered by McCain was not foreseeable. See of care to a specific plaintiff, but still not be id. liable for negligence because proximate causation cannot be proven. On the merits, we find that the district court erred in ordering a directed verdict. In the
17 FN1. Of course, to determine this legal Thus, as the risk grows greater, so does the duty, question the court must make some because the risk to be perceived defines the duty inquiry into the factual allegations. The that must be undertaken. . objective, however, is not to resolve the issues of comparative negligence or The statute books and case law, in other words, other specific factual matters relevant to are not required to catalog and expressly proximate causation, but to determine proscribe every conceivable risk in order for it to whether a foreseeable, general zone of give rise to a duty of care. Rather, each risk was created by the defendant's defendant who creates a risk is required to conduct. exercise prudent foresight whenever others may be injured as a result. This requirement of It might seem theoretically more appealing to reasonable, general foresight is the core of the confine all questions of foreseeability within duty element. For these same reasons, duty either the element of duty or the element of exists as a matter of law and is not a factual proximate causation. However, precedent, question for the jury to decide: Duty is the public policy, and common sense dictate that standard of conduct given to the jury for gauging this is not possible. Foreseeability clearly is the defendant's factual conduct. As a corollary, crucial in defining the scope of the general duty the trial and appellate courts cannot find a lack placed on every person to avoid negligent acts or of duty if a foreseeable zone of risk more likely omissions. Florida, like other jurisdictions, than not was created by the defendant. recognizes that a legal duty will arise whenever a human endeavor creates a generalized and On the question of proximate causation, the foreseeable risk of harming others. [FN2] As legal concept of foreseeability also is crucial, but we have stated: in a different way. In this context, foreseeability is concerned with the specific, FN2. Obviously, the duty can arise from narrow factual details of the case, not with the other sources such as statutes or a broader zone of risk the defendant created. person's status (e.g., the duty a parent owes a child). The Restatement In the past, we have said that harm is (Second) of Torts, for example, "proximate" in a legal sense if prudent human recognizes four sources of duty: (1) foresight would lead one to expect that similar legislative enactments or administration harm is likely to be substantially caused by the regulations; (2) judicial interpretations specific act or omission in question. In other of such enactments or regulations; (3) words, human experience teaches that the same other judicial precedent; and (4) a duty harm can be expected to recur if the same act or arising from the general facts of the omission is repeated in a similar context. case. Restatement (Second) of Torts § However, as the Restatement (Second) of Torts 285 (1965). In the present case, we has noted, it is immaterial that the defendant deal with the last category--i.e., that could not foresee the precise manner in which class of cases in which the duty arises the injury occurred or its exact extent. because of a foreseeable zone of risk Restatement (Second) of Torts § 435 (1965). In arising from the acts of the defendant. such instances, the true extent of the liability would remain questions for the jury to decide. Where a defendant's conduct creates a foreseeable zone of risk, the law generally will On the other hand, an injury caused by a recognize a duty placed upon defendant either freakish and improbable chain of events would to lessen the risk or see that sufficient not be "proximate" precisely because it is precautions are taken to protect others from unquestionably unforeseeable, even where the the harm that the risk poses. injury may have arisen from a zone of risk. The law does not impose liability for freak injuries that were utterly unpredictable in light of
18 common human experience. Thus, as the show that it understood or should have Restatement (Second) of Torts has noted, a trial understood the extent of the risk involved. The court has discretion to remove the issue from the very fact that Florida Power marked the property jury if, "after the event and looking back from for McCain itself recognizes that McCain would the harm to the actor's negligent conduct, it be within a zone of risk while operating the appears to the court highly extraordinary that trencher. [the conduct] should have brought about the harm." While it is true that power companies are not insurers, they nevertheless must shoulder a Unlike in the "duty" context, the question of greater-than-usual duty of care in proportion to foreseeability as it relates to proximate causation the greater-than-usual zone of risk associated generally must be left to the fact-finder to with the business enterprise they have resolve. Thus, where reasonable persons could undertaken. Electricity has unquestioned power differ as to whether the facts establish proximate to kill or maim. This is the precise reason the causation--i.e., whether the specific injury was duty imposed upon power companies is a heavy genuinely foreseeable or merely an improbable one, because the risk defines the duty. Thus, if freak--then the resolution of the issue must be there is any general and foreseeable risk of left to the fact-finder. Vining v. Avis injury through the transmission of electricity, the Rent-A-Car Systems, Inc., 354 So.2d 54, 56 courts are not free to relieve the power company (Fla.1977); Florida Power & Light Co. v. of this duty. Bridgeman, 133 Fla. 195, 182 So. 911 (1938). The judge is free to take this matter from the Certainly, the power company is entitled to give fact-finder only where the facts are unequivocal, the fact-finder all available evidence about such as where the evidence supports no more intervening causes, precautions taken against the than a single reasonable inference. risk, the fact that no similar injury has occurred in the past, and the comparative negligence of We believe the district court below erred in that the plaintiff, among other matters. These it confused the duty and proximate causation questions clearly are relevant to the fact-based elements, resulting in a mistaken assumption elements of breach or proximate causation. But that Florida Power's duty was to foresee the the mere fact that such evidence exists--even if it specific sequence of events that led to McCain's ultimately may persuade the fact- finder--does injury, in light of the precautionary measures the not relieve the power company of its duty. company already had taken.. This approach in Here, the zone of risk was foreseeable, giving effect allowed the duty element to subsume the rise to a coextensive duty of care as a matter of question of proximate causation, with the result law. A reasonable jury then could have that the district court improperly attempted to concluded as a matter of fact that McCain's resolve on appeal a factual question that should injury fell within this zone of risk and that have been left with the jury. As to duty, the Florida Power breached the duty it owed to proper inquiry for the reviewing appellate court McCain. . . . is whether the defendant's conduct created a foreseeable zone of risk, not whether the There thus is sufficient evidence in this record defendant could foresee the specific injury that that would justify a reasonable juror in actually occurred. concluding that McCain's injury was proximately caused by a breach of a duty Here, there can be no question but that Florida imposed by law. The factual issues were for the Power had the ability to foresee a zone of risk. jury, not the court, because reasonable persons By its very nature, power-generating equipment may differ in resolving them. The opinion creates a zone of risk that encompasses all under review is quashed and the jury's verdict is persons who foreseeably may come in contact reinstated. with that equipment. The extensive precautionary measures taken by Florida Power It is so ordered.
19 order, arguing that under Florida law there is no impact requirement in cases dealing with tortious GONZALEZ v.METROPOLITAN DADE COUNTY interference with a dead body. . The district court . . PUBLIC HEALTH TRUST .affirmed the final summary judgment, but certified 651 So. 2d 673 the question to this Court. . . . Fl. Sup Ct. March 2, 1995. The "impact doctrine" which evolved from the HARDING, Justice. common law of England, requires that a plaintiff sustain actual physical impact in order to recover for We have for review Gonzalez v. Metropolitan Dade the negligent infliction of emotional distress. The County Public Health Trust, 626 So.2d 1030 (Fla. 3d traditional rationale for this rule was to insure the DCA 1993), in which the Third District Court of authenticity of mental distress claims. Numerous Appeal certified the following question as being one jurisdictions have adopted the doctrine, although of great public importance: many have not strictly adhered to the "impact" Whether Florida should adopt section 868 requirement. Restatement (Second) of Torts, receding from the holding in Donahue that the law of Florida will not Depending on the jurisdiction, an allegation of sustain an action for mental anguish caused by negligent infliction of mental distress may require negligent handling of a dead body in the absence of proof of physical injury, temporal sequence, physical physical injury. impact, or proximate cause. These are separate and Id. at 1033. . . . distinct requirements, although often erroneously used interchangeably. Although the majority of On October 29, 1988, Zoila Gonzalez gave birth to a jurisdictions do not require physical impact, they baby girl who died at Jackson Memorial Hospital on nevertheless still require a physical injury for November 7, 1988. Jesus and Zoila Gonzalez (the recovery for negligent infliction of emotional Gonzalezes) procured the services of Rivero Funeral distress.. Home to perform a funeral service and burial on November 9, 1988. On January 9, 1989, Rivero Although this Court has re-examined the rule Funeral Home notified the Gonzalezes that their baby numerous times, Florida law still adheres to the had not been buried, and that the body was still in a minority view that physical impact is required to refrigerated drawer at the hospital morgue. A bring a cause of action for negligent infliction of second funeral and burial were held on January 24, mental distress. As [4th DCA] Judge Reed explained, 1989. [t]here is more underlying the impact doctrine than The Gonzalezes filed a complaint against simply problems of proof, fraudulent claims, and Metropolitan Dade County Health Trust (d/b/a excessive litigation. The impact doctrine gives Jackson Memorial Hospital) and Rivero Funeral practical recognition to the thought that not every Home, alleging tortious interference with a dead injury which one person may by his negligence body and negligent infliction of emotional distress. inflict upon another should be compensated in The trial court found that while the hospital and money damages. There must be some level of harm funeral home's conduct was negligent, it was not which one should absorb without recompense as intentional or grossly negligent. The Gonzalezes the price he pays for living in an organized society. conceded that they suffered no physical impact and that the hospital and funeral home's acts were not However, this Court has recognized a number of willful. Consequently, the trial court granted exceptions to the physical impact rule. For example, summary judgment for Metropolitan Dade County this Court held that the impact rule should not be and Rivero Funeral Home on the ground that absent a applied to wrongful birth actions, Kush v. Lloyd, 616 physical injury, a petitioner making a claim for So.2d 415 (Fla.1992), or in cases where a person emotional distress in an action for tortious suffers significant discernible physical injury caused interference with a dead body must plead and prove by the psychological trauma that results from conduct that is extreme and outrageous, so as to observing the death or physical injury of a close imply malice and justify the imposition of punitive family member that was negligently caused by damages. . . .. another, Champion v. Gray, 478 So.2d 17 (Fla.1985).
The Gonzalezes appealed the summary judgment The absence of physical impact does not bar a claim
20 for the negligent mishandling of a dead body under that the "special circumstances" guarantee the Florida law. In Dunahoo, this Court held that while authenticity of the claim, there is no accurate method the surviving spouse had a right to have, protect, and of separating the natural grief resulting from the dispose of the decedent's remains, the spouse could death of a loved one from the additional grief not sustain a cause of action for mental anguish suffered as a result of mishandling of the body. because it was unconnected with a physical injury, the damages claimed were too remote and If this Court were to adopt the Restatement view, we speculative, and there was no constitutional, would be applying a very lenient standard to an legislative, or common law authority to sustain such emotional distress claim arising from injury to a an action. Thus, Dunahoo did not disallow the cause corpse while requiring proof of either physical impact of action based upon a lack of physical impact. or physical injury for claims involving injury to a living relative. In Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950), which involved the unauthorized actions of an The consequences of such an exception are too far undertaker who allegedly removed the corpse of a reaching in a modern society where it is recognized five-year-old child without permission, refused to that not all wrongs can be compensated through surrender the body, negligently embalmed the body litigation or the courts. Moreover, even and ultimately held the body as security for the commentators acknowledge that "cases will payment of an excessive fee, this Court reaffirmed obviously be infrequent in which 'mental the Dunahoo rule that damages are not recoverable disturbance,' not so severe as to cause physical harm, for mental pain and anguish unconnected with will clearly be a serious wrong worthy of redress and physical injury in an action for simple negligence. sufficiently attested by the circumstances of the However, the Court did recognize that "where the case." Prosser and Keeton on the Law of Torts § wrongful act is such as to reasonably imply malice, 54, at 362. Nor have the Gonzalezes presented any or where, from the entire want of care of attention to valid justification to recede from the long standing duty, or great indifference to the persons, property, or decisions of this Court in this area. Accordingly, we rights of others, such malice will be imputed as answer the certified question in the negative and would justify the assessment of exemplary or reaffirm the rules announced in Dunahoo and punitive damages." Because Kirksey involved such Kirksey. An action for mental anguish based on malice, the Court permitted recovery even though the negligent handling of a dead body requires proof of plaintiff mother suffered no physical injury. Thus, either physical injury or willful or wanton as explained in Dunahoo and Kirksey, Florida law misconduct. currently does not require physical impact to bring a claim for mental distress based upon the negligent mishandling of a dead body.
Section 868 of the Restatement (Second) of Torts, which the Gonzalezes urge this Court to adopt, removes not only the physical impact requirement, but also eliminates the physical injury currently required under Florida law. . . ..
A cause of action for emotional distress involves special damages which are inherently difficult to ascertain and measure, hence the additional requirements of physical impact, physical injury, or malicious conduct under Florida law. . . ..
Some commentators have urged recovery for the negligent mishandling of a corpse based upon "an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." While we recognize that cases involving negligent mishandling of corpses entail real and palpable injury to feelings, and it may even be true
21 District Court of Appeal of Florida, in the briefs and at oral argument before a panel of Third District, en banc. this court raised real questions of whether Adika, which is entirely determinative of the result, correctly Rabbi Israel POLEYEFF, as Personal Representative decided the significant questions involved, the court of the Estate of received supplemental briefs and heard oral argument Eugenie Poleyeff, deceased, Appellant, en banc. We now conclude, having considered the v. genuinely outstanding written and oral presentations SEVILLE BEACH HOTEL CORPORATION d/b/a of all sides, that Adika should be endorsed and The Seville Hotel, Appellees. reaffirmed.
Feb. 21, 2001. As in Adika, we hold that an entity which does not control the area or undertake a particular responsibility to do so [FN4] has no common law duty to warn, correct, or safeguard others from SCHWARTZ, Chief Judge. naturally occurring, even if hidden, dangers common [FN6] to the waters in which they are found. These appeals arise from a terrible tragedy which occurred on February 20, 1997, in the Atlantic ocean off the public beach adjacent to the Seville Hotel in FN4. The particular responsibility referred Miami Beach. On that date, Ms. Eugenie Poleyeff, a to may arise in the swimming context under New York resident who was a guest at the Saxony such special circumstances as were present Hotel, went three blocks away to the beach at the in McKinney v. Adams, 68 Fla. 208, 66 So. Seville. There, she rented a beach chair and umbrella 988 (1914), in which, as said in Adika, the from Hurricane Beach Rentals, which had permission defendant "operated a public bathhouse and from the Seville and a concession to do so from the profited from the rental of equipment City of Miami Beach. As she was swimming at that expressly intended for use while swimming location, she was caught in a so-called riptide or rip in the adjacent Atlantic Ocean." See Adika, current of the kind which occurs periodically in the 633 So.2d at 1171. Atlantic, as in every ocean in the world. Zachary Breaux, a guest of the Seville, courageously Both cases upon which the plaintiffs heavily attempted to rescue her but both were drowned. rely for the proposition that liability may arise from conditions beyond the defendant's own premises treat analogous relationships. The estates of Ms. Poleyeff and Mr. Breaux brought Thus, Carlisle v. Ulysses Line, Ltd., S.A., separate wrongful death actions in the Dade County 475 So.2d 248 (Fla. 3d DCA 1985) involved Circuit Court against several entities, including those the duty of a cruiseliner to warn its now before us as appellees: the Seville, the Saxony passengers about risks of violence they and Hurricane Beach Rentals. As to these might encounter during the on-shore part of defendants, the plaintiffs claimed violations of their vacation trip. Shurben v. Dollar Rent- alleged duties to the respective decedents to warn A-Car, 676 So.2d 467 (Fla. 3d DCA 1996) them about, or safeguard them from, the "unseen" concerned the similar responsibility of a dangers engendered by the currents, such as by rent-a-car agency to warn its customers providing lifeguards or other safety equipment at the against using the leased vehicle itself in a beach. The plaintiffs now appeal from separate final high crime area. (A similar duty might arise judgments dismissing their complaints with prejudice in the present context if, for example, as to these three defendants for failure to state a cause Hurricane Rentals rented a water craft for of action. After en banc consideration, we affirm. use in an area of the ocean in which it was aware that rip currents were present.) These cases stand in contrast to the present one, in The basis of the ruling below was our decision in which the businesses of operating hotels and Adika v. Beekman Towers, Inc., 633 So.2d 1170 (Fla. renting beach chairs only tangentially or 3d DCA 1994), review denied, 640 So.2d 1106 collaterally relate to their customers' use of (Fla.1994), which squarely holds that there is no non- the ocean. statutory duty imposed upon a beachside hotel to warn its guests against the dangers of a riptide in an adjacent part of the ocean. Because the presentations FN6. Landowners may, of course, be liable
22 for failure to correct or warn about known does because it thinks it should. defects peculiar to specific areas for which Schuster v. Banco De Iberoamerica, S.A., 476 So.2d they are responsible. 253, 254, 255 (Fla. 3d DCA 1985)(majority and dissenting opinions). Adika reflected our belief that the duties for which the plaintiffs so ably contend There is no need to repeat the policy and practical should not be recognized. We still feel that way. considerations outlined in Adika and in the host of cases in Florida and elsewhere which without Affirmed. exception support our holding.
Nor is it necessary to buy entirely into the horribles with which the appellees threaten us [FN7] if they should lose these appeals. It is enough to say that drowning because of a natural characteristic of the very waters in which it occurs is simply one of the perhaps rapidly diminishing set of circumstances for which, without more, no human being or entity should be considered "to blame," deemed "at fault" or, therefore, held civilly liable. While the law of torts may properly serve to distribute risks among those whom society, speaking through the courts, holds responsible for a particular unwelcome event, it should not be employed to assign fault--with the result that the transfer of money is required--when none can be fairly said to exist. In this instance, in other words, because there is no wrong, there can be no remedy. It has also been said that
FN7. These range from the hallucinatory, including the destruction of Florida's tourist industry, to the very practical, including the requirement of making exquisitely fine distinctions between and among, for example, the relative proximity of particular defendants' businesses to the beach, the extent of the particular "warnings" required and the status and expertise of particular plaintiffs in the dangers of swimming, all of which would arise if a contrary rule were adopted. In that regard, we note that the broadness of our holding pretermits the necessity of resolving, in this very case, such almost impossible issues as whether the Saxony's duty to its guest, Ms. Poleyeff, extended to the area adjacent to the Seville, whether that duty extended to Mr. Breaux either as a rescuer or as a generic user of the beach, whether the Seville's duty to Mr. Breaux extended to Ms. Poleyeff, whether its breach had any causative effect upon Mr. Breaux's actions in attempting to save her in light of his obvious knowledge of a danger which had already arisen, and on and on.
[a] common law duty exists when a court says it
23 Moreover, a loose towel rack is not a "dangerous YOUNGBLOOD v.PASADENA AT PEMBROKE defective condition" that would obligate the landlord LAKES SOUTH, LTD. to make repairs. As was noted in Menendez v. Palms West Condominium Ass'n, Inc., 736 So.2d 58, 61 4th DCA Sept. 22, 2004. (Fla. 1st DCA 1999), . It is true that a landlord has a duty to repair defects in a residential apartment so that it will be WARNER, J. reasonably safe for occupancy. This duty is limited, however, to conditions that are inherently Appellant Claretha Youngblood fell and was injured unsafe or dangerous conditions that are not readily when the towel rack she was using as support while apparent to the tenant. exiting from a shower ripped out of the wall. She Menendez compared Mansur, which held that the sued appellee, Pasadena at Pembroke Lakes South, landlord had a duty to repair a defective gas heater the landlord of the apartment in which the towel rack that exploded, with Fitzgerald v. Cestari, 569 So.2d was located, alleging negligent failure to maintain the 1258 (Fla.1990), where the court held that a landlord towel rack. The trial court dismissed the complaint, had no duty to put markings on a sliding glass door and we affirm, concluding that the complaint failed to because the property was in the possession of the allege a legal duty owed by the landlord to repair the tenant who was in just as good a position to take towel rack or warn of its condition. precautions against any danger the door posed. Because the tenant was in control of the premises, the Younglood's second amended complaint alleged that tenant should have taken such precautions. Pasadena, which rented apartments at Pembroke Lakes South, knew or should have known that We liken the loose towel bar to the sliding glass door persons on the premises of its apartments would use a in Fitzgerald. The tenant was in a better position to towel rack as support when exiting the shower, and take precautions and correct this defect than the that the loose and unsecured condition of the rack landlord, because the tenant was in possession of the created a dangerous and unsafe condition to users of premises. The towel rack hardly posed a dangerous the bathroom. When exiting the shower, Youngblood condition like a defective gas heater capable of reached for a towel on the towel rack and used the exploding. A towel rack is not even as dangerous as towel rack for support. Because the rack was loose, a sliding glass door which can break and cut a person. it was unable to provide support for her. She lost her It is a matter of common understanding that a towel balance and fell, suffering injuries. The trial court rack is designed to support the weight of a piece of found that no duty existed to maintain the towel rack cloth, not a person. under these circumstances and dismissed the complaint. Youngblood appeals. In sum, we affirm the trial court's dismissal of this complaint, as appellant failed to allege a legal duty This is a landlord liability case. Here, Youngblood on the part of the landlord. alleged that Pasadena was owner of the apartments for rent, a landlord, and that she was an invitee at one Affirmed. of its apartments. Youngblood was a tenant herself or an invitee of a tenant. In any event, the duty involved is that of a landlord to a tenant. The duty of the landlord is two-fold: (1) prior to possession by the tenant, the landlord has a duty to reasonably inspect the premises, and to make necessary repairs to transfer a reasonably safe dwelling unit, unless the tenant waives the defect; and (2) after possession by the tenant, the landlord has a continuing duty to exercise reasonable care in repairing dangerous defective conditions upon the tenant giving notice of their existence, unless waived by the tenant. Youngblood does not allege that the landlord failed to inspect the premises prior to transfer of possession of the unit, nor does she allege the landlord was given notice of the condition.
24 District Court of Appeal of Florida, Third District. Rosendo Gonzalez is a licensed doctor in Peru, but only had a temporary physician's assistant license in Helmut RIEDEL, etc., Appellants, Florida. When he arrived at the Riedels' room, he v. identified himself as either "the doctor from On-Call" SHERATON BAL HARBOUR ASSOC., et al., or "the doctor from reception." Although Appellees. communication was difficult, Gonzalez did learn that Mrs. Riedel was an insulin dependent diabetic, but Nov. 7, 2001. did not check her blood sugar level nor inquire about her last injection. Gonzalez prescribed Emetrol and Pedialyte for Mrs. Riedel's diarrhea and apparent RAMIREZ, J. dehydration, both of which are contraindicated for diabetics. Mr. Riedel immediately took a taxi to the Helmut Riedel, individually and as personal nearest pharmacy, returned with Emetrol and representative for the estate of his wife, Doris Riedel, Pedialyte, and administered one dose at 12:30 AM appeals a final judgment in favor of the Sheraton Bal and another dose approximately one hour later. Harbour. We reverse the denial of Riedel's motion When he awoke in the morning, his wife was dead. for a directed verdict as to liability and remand for a An autopsy revealed that she had died from new trial on damages because the Sheraton failed to ketoacidosis, an absolute deficiency of insulin which use reasonable care in selecting a doctor when it causes the body to turn fats into acids. undertook to provide medical assistance for Doris Riedel. Mr. Riedel brought suit against the Sheraton for negligent selection and retention of On-Call Medical Doris Riedel was forty-six years old, married to Services. A jury found that the Sheraton was not Helmut for twenty-seven years. She had been a negligent and that Gonzalez was not the Sheraton's diabetic for thirty-two years and was insulin agent. We now overturn that verdict. dependent, giving herself two injections per day and checking her blood sugar level daily. "The existence of a legal duty is not a question for the jury, but rather a question of law for the court." The Riedels arrived at the Sheraton Bal Harbour "[A]n innkeeper has a special relationship with his from Germany on December 26, 1994, for a vacation guests which gives rise to a duty to protect them on Miami Beach. The next morning, Mrs. Riedel against unreasonable risk of physical harm." Adika was not feeling well and did not go to breakfast. She v. Beekman Towers, 633 So.2d 1170, 1170-71 (Fla. spent the day in bed, complaining of intermittent 3d DCA 1994). "[T]he standard of care owed to an bouts of diarrhea and vomiting. At 6:00 P.M., occupant of a hotel room (an invitee) is reasonable following Mr. Riedel's request for medical assistance care." Phillips Petroleum Co. of Bartlesville, Okl. v. to the front desk, paramedics came to the room Dorn, 292 So.2d 429, 431 (Fla. 4th DCA 1974). accompanied by hotel security personnel. The German front desk clerk also came up to the room to Although the Sheraton initially had no obligation to act as interpreter because the Riedels did not speak provide the Riedels with medical assistance, once it English. Mrs. Riedel's vital signs did not indicate a undertook this task, it had a duty to exercise need for emergency transport and she was advised reasonable care. See Buscemi v. Intachai, 730 So.2d that any further tests needed to be conducted at the 329, 330 (Fla. 2d DCA 1999) ("When anyone hospital. The Riedels did not wish to go to the undertakes to do a particular act for another, the act hospital and were reassured by the desk clerk that the undertaken must be done with reasonable care so as hotel had a doctor available. not to injure the other person by reason of the act performed."). As the evening progressed, Mrs. Riedel's condition worsened. Mr. Riedel went down to the front desk "Where a defendant's conduct creates a foreseeable several times to express his concern about his wife's zone of risk, the law generally will recognize a duty condition and finally requested that the doctor be placed upon defendant either to lessen the risk or see called. The hotel contacted On-Call Medical that sufficient precautions are taken to protect others Services, who sent Rosendo Gonzalez to treat Mrs. from the harm that the risk poses." Sheraton Bal Riedel. Neither security personnel nor the German- Harbour represented to its guests that it provided speaking front desk clerk accompanied Gonzalez to non- emergency medical services. If a guest wanted the room. a doctor to come to the room, he was instructed to
25 ask the front desk, concierge, or operator, who would in turn contact On-Call. In fact, the Director of Security had informed his staff that On-Call was the only medical provider authorized to treat the Sheraton's guests in their hotel rooms. The Sheraton told the Riedels it would provide a doctor. Instead, it provided a temporarily licensed unsupervised physician's assistant, thereby creating a foreseeable zone of risk.
Once it was shown that the Sheraton breached its duty to guard against a foreseeable risk, Mr. Riedel's motion for a directed verdict should have been granted. A trial judge is authorized to grant a motion for directed verdict when there is no evidence or reasonable inferences to support the opposing position. Even the absence of industry standards does not insulate the Sheraton from liability when credible evidence has been presented pointing to measures reasonably available to deter incidents of this kind.
In this case, there was no conflicting evidence. Several security experts, including Sheraton's corporate security director, testified that it is advisable that a hotel not offer medical services, but that if it chooses to do so, it should conduct a background check on the service it plans to use. A background check of On-Call would have revealed that it was operated by William and Marlene Villafana, a young and inexperienced husband-and- wife team with no medical training or medical administration training. On-Call obtained its business by soliciting front desk clerks, hotel operators and concierge personnel, who would then receive a commission of $10 to $30 per referral. It had no occupational license, its address was at a Mailboxes Etc., and its telephone was Marlene Villafana's home phone. It had no licensed doctor with staff privileges at any local hospital, and it had no liability insurance. An investigation would have also revealed that the Villafanas had been involved in the death of another tourist at a Marriott Hotel in Orlando the previous year. The Sheraton owed the Riedels a duty to protect them from unreasonable risk of harm when providing medical assistance. The Sheraton's failure to make any inquiry about On-Call created a foreseeable risk that Mrs. Riedel would receive improper medical care. Therefore, Mr. Riedel's motion for a directed verdict should have been granted.
Reversed and remanded for a new trial consistent with this opinion.
26 District Court of Appeal of Florida, canal, which path proceeded partly along the sloping Fourth District. bank of the canal to a nearby flea market.
Joseph SELVIN, Personal Representative of the On a Saturday morning in late August, a certified Estate of Benjamin Selvin, nurse's assistant went to the dining room shortly after Appellant, 8:30 a.m. to administer the father's medications. The v. assistant checked the father's apartment and several DMC REGENCY RESIDENCE, LTD., a Texas places in the building where she thought he might be, limited partnership, Appellee. but she was unable to locate him. He did not appear for any of the meals that day and no one saw him Dec. 19, 2001. around the premises, but no one from the facility notified the family. Later that evening the family sought to speak to him and, when he could not be FARMER, J. found, went to the facility. They urged the personnel to report him as a missing person. Ultimately the next Plaintiff's 93-year old father drowned in a canal morning, he was found floating in the canal behind behind an assisted- living facility for geriatric the facility's property. The cause of death was shown residents. The facility had contracted to supply him a to be accidental drowning. residence and certain services. In his suit against the facility for damages, the trial court excluded any The son was appointed personal representative of his evidence of the feasibility of fencing or otherwise father's estate and brought an action against the obstructing the canal from access by the elderly assisted living facility. His complaint that the facility residents--many of whom, like plaintiff's father, had had a common law and statutory duty to supply at diminishing cognitive and physical abilities--as well least the level of services and care that all licensed as any reference to any issue about the canal at all. assisted living facilities generally furnish elderly The court then granted a directed verdict. We reverse patients of the father's medical classification and for a new trial. condition. He further alleged that the facility breached that duty by . . . failing to provide adequate Defendant agreed with decedent and his son to custodial and supervisory care; and finally by failing furnish a residence with some additional services. to prevent his father from wandering away from the Although defendant offers varying degrees of facility. attention in its services for its elderly residents, the precise level of responsibility provided the father is At trial plaintiff sought to show that the facility in dispute. While he lived in the "independent" could and should have built a fence or other section of the facility, plaintiff suggests that the obstruction at the rear of its property to prevent its "independent section" may actually be a means to elderly residents, especially those with failing allow more assisted living residents than the cognitive and mental faculties, from using the foot regulatory law would authorize. In any case, there path to the flea market or wandering into the area of clearly was evidence that the father was not merely a danger that the canal represented. All of this resident but that, in addition to an apartment for his evidence was barred by the trial judge who also personal repose, the facility agreed to furnish certain instructed the jury that defendant had no duty to individual services under the facility's "Personal Care prevent its residents from accessing the canal area at Program." These included the provision and the rear of the facility's premises. administration of medications, assistance with bathing, two meals daily and laundry services. In granting the motions in limine excluding evidence and in instructing the jury, the trial court relied on the The evidence is not clear as to the father's cognitive line of cases represented by Saga Bay Property and mental acuity when he first moved in. There is Owners Ass'n v. Askew, 513 So.2d 691 (Fla. 3d DCA some evidence that it may have deteriorated over the 1987). In Saga Bay, the parents of a six year old months before his death, including testimony that the child who drowned in an artificial lake near their father suffered from "mild dementia." There was home brought an action against the owners of the also considerable evidence about the location and residential development in which the lake was circumstances of the canal bordering the rear parking located, alleging that the owners were negligent in lot of the facility. Among other things, frequent usage failing to fence the area. The Third District held that by the facility's residents had apparently developed a the owners could not be held liable because "an dirt path around a partial side wall ending short of the owner of a natural or artificial body of water has no
27 duty to fence it." 513 So.2d at 693. . . .The court living facility which did not exist in those cases. . explained: "To hold as the appellant suggests would require every landowner, who owns land adjacent to a FN2. Both sides spend a wealth of printer canal in Dade County, to construct a fence or wall ink on the distinctions among invitees, preventing access to the canal. We do not think licensees and trespassers and the varying that such a duty exists." liabilities of owners and occupiers of land 399 So.2d at 539. under these distinctions. We have come to see this case from a different perspective, . . Relying on the Saga Bay holding that "an owner however. We focus instead on the conduct of a natural or artificial body of water has no duty to of defendant in its business of offering fence it," we held in Scott v. Future Investments of assisted living facilities to men and women Miami, Inc., 559 So.2d 726 (Fla. 4th DCA 1990). in their declining years and the services and that "[i]f the law is such for an owner of a body of care that defendant has undertaken to give water surely the law is at least the same for a them. Even so, we do agree, however, that nonowner." Accordingly, we affirmed the trial the supreme court appears to have held that court's ruling that the owner of the apartments had no the rule of Saga Bay does not apply to duty to erect a fence to prevent residents' access to business invitees. It seems fairly obvious to the canal. us that the father is such an invitee. Certainly he is not a trespasser on the Plaintiff argues that the trial court's reliance on Saga facility's property, and the agreement Bay and Scott is misplaced for two reasons. First, between them appears to give him more the child who drowned in the artificial lake in Saga rights than a mere licensee. Bay was at most a licensee, if not a trespasser, and thus the Saga Bay rule applies only to those two classifications of visitors on land, not to business There is also a fundamental distinction about the invitees. Second, plaintiff reminds us, he does not residents in assisted living facilities that is not true of contend in this case that the owner of the canal had a the general public. Unlike people who choose to live duty to fence the father out, as the parent argued in single family homes, the residents of this assisted regarding the child in Saga Bay. Rather, he contends, living facility have their home there because they the assisted living facility had a duty to exercise must. They have been forced by the afflictions of reasonable care to keep his father in--to keep him age, by deteriorating cognitive and mental acuity as safely on its own premises and thereby prevent him well as physical decline, to give up their conventional in his diminished mental condition from wandering homes, apartments and condominiums they had off the edge of safety into the nearest and most chosen as permanent places of residence when they accessible hazard, a body of water not under the were active and able. Now their mental and physical control of the assisted living facility but of someone conditions, however, have made it necessary for their else. own personal safety to live in a place where trained personnel can give them care and attention to protect It is true that Saga Bay, Walters and Scott all involve them from the dangers of their failing faculties. In suits against owners and occupiers of land for failing short they have turned to assisted living facilities not to protect or warn third parties--who from time to in the same way that the general public chooses time may be present on their land--against known ordinary homes--for simple shelter--or to visit parks hazards. Beyond that duty to strangers as to known and recreation areas, but instead for protection from hazards, there is no legal relationship in Saga Bay the ordinary risks of everyday life associated with the and Walters between the third parties and the owners steady decline in their own abilities to look after of the lands for the care and protection of the person themselves. What plaintiff appears to claim is that lost. this facility failed to exercise due care in the single thing--the sole function--that made him seek out such In contrast, here the duty of this assisted living a facility. facility was directed not to the general public [FN2] but only to those whom it permitted to live in its The owner/operator of this facility for elderly residential areas and for whom the facility undertook residents in need of services chose to place it on the to furnish certain services of care and security. Thus, canal, so near to this body of water. Plaintiff points in the present case there is a special, consensual out that the facility built a fence to block cars in its relationship between the father and this assisted parking lot from rolling down the slope into the canal
28 but it placed no barriers--none suitable to the purpose, anyway--to prevent its elderly residents from slipping down the banks into the water. He also argues that the danger of falling into the water was especially acute because many of these aged and infirm people might not be able to extricate themselves. He argues that the facility thus placed its particularly vulnerable residents within a foreseeable zone of danger, a risk that was admittedly not directly on their property but was surely accessible from it.
The facility argues that as a matter of law it is freed from liability for this zone of risk because the father-- like many of its residents-- specifically chose to retain his independence, that he wanted to be free to come and go as he saw fit. It argues that by agreement he was not bound by some of the restrictions to which more intensely supervised residents in other parts of their facility had agreed. It stresses that the canal is owned by someone else, that it should not be responsible for what happens on another person's property.
Nevertheless the jury could have found from the excluded evidence, and without the erroneous jury instruction of no duty, that the facility owed him a duty of due care to protect him from the dangers represented by the canal and by accessing from its premises the footpath used as a shortcut to the flea market. How the duty of due care should be met in a given case is for the jury.
We hold that the Saga Bay, Walters and Scott line of cases were inapposite to plaintiff's claim of a duty of due care for his father. The court's exclusion of evidence as to the canal, or the kind of things that might be done to protect these aged and impaired residents from falling into it, or industry standards as to water hazards near ACLFs, as well as the no-duty instruction, were all in error.
29 District Court of Appeal of Florida, First District. however, was otherwise uncertain in his responses. He was unable to negate other possible causes of the Nicholas J. CASSISI and Elayne E. Cassisi, , fire, such as the possibility that flames from a fire v. originating outside the dryer during the machine's The MAYTAG COMPANY, a Delaware operation could have been drawn into its interior, Corporation, and McDuff Appliances, Inc., a causing the clothing to ignite; the possibility that the Florida Corporation, Appellees. short could have occurred if either the circuit breakers were not functioning properly, or were not March 11, 1981. in existence; the possibility that the fire had been caused by a deterioration of the electrical wiring, ERVIN, Judge. such as its having been gnawed by rats; and, finally, the possibility that a defect could have occurred The Cassisis and their homeowner's insurer appeal following the sale of the product to the Cassisis. from a summary judgment entered against them in a products liability action founded on theories of strict While appellants are not required to prove in a strict liability, negligence, and breach of an implied liability action that the manufacturer or retailer was warranty. The only issue for our determination is negligent in the preparation or distribution of a whether the lower court correctly ordered summary product, they nevertheless have the burden, whether judgment on the ground the Cassisis' proofs failed to their case is founded in negligence, breach of an show their damages were caused by a product in a implied warranty, or strict liability, of establishing (1) defective condition at both the time of the accident that a defect was present in the product; (2) that it and the time it was within the possession of the caused the injuries complained of; and (3) that it manufacturer or the retailer. Because we find genuine existed at the time the retailer or supplier parted issues of material fact remain unresolved on that possession with the product. Appellees argue that question, we reverse the summary judgment and appellants' burden was not met because their remand the cause for further proceedings consistent evidence failed to pinpoint a defect inside the clothes with this opinion. dryer either at the time of the accident or at the time the product left the control of the manufacturer or Mrs. Cassisi's deposition testimony was that she had supplier. purchased the alleged offending product, a clothes dryer, from the retailer, McDuff Appliances; that How a plaintiff meets his burden in a products during the 19 months of its use, no maintenance work liability case and thereby establishes a submissible or repairs had ever been performed on it; and that it case for jury consideration has been the source of had always been normally operated. On the date of frequent litigation. Since Section 402A of the the accident, Mrs. Cassisi left her home with the Restatement of Torts (Second) has been adopted in dryer in operation; upon her return, she found the Florida by West v. Caterpillar Tractor Co., Inc., 336 house ravaged by fire. So.2d 80 (1976), that section should be carefully consulted in order to ascertain if the alleged While appellants' expert, Clayton Morrison, a offending product is one which may be subject to the registered professional engineer, was unable to Restatement's definition of defectiveness and, if so, to pinpoint a specific defect within the dryer (it had know what type of evidence must be presented to been badly damaged), it was his opinion that the fire establish a submissible case of product defectiveness. had begun inside the dryer. When asked if a malfunction was inherent in the product, he I. The Nature and Types of Product Defects responded: My conclusion is that it was inherent ... because I The black letter statement to Section 402A requires have concluded that the fire originated within the that a product be "in a defective condition product. That is the source from which the fire unreasonably dangerous to the user or consumer or to pattern and the heat source emanates, is from the his property ...." Thus, one who is injured while using dryer itself. Now, you must therefore conclude, a perfectly made axe or knife would have no right to that it was due to some incorrect functioning of a a strict liability action against the manufacturer part that was internal within the machine that because the product that injured him was not caused the fire to start. defective.
He also surmised that the malfunction was caused by On first impression, the Restatement may seem to an electrical short within the dryer. Mr. Morrison, require proof that the product be both defective and
30 unreasonably dangerous. That, however, is not the the risk of fire from the way gasoline tanks are case. Section 402A defines defective condition by installed in cars, or the magnitude of risks involved in requiring the product to be "at the time it leaves the vehicles overturning. Due to the difficulty in seller's hands in a condition not contemplated by the applying the consumer expectation standard to all ultimate consumer, which would be unreasonably types of product defects, many thoughtful dangerous to him.". It appears that the terms commentators have suggested that it should be defective and unreasonably dangerous are redundant. rejected, particularly as to those defects arising from Dean Prosser, the reporter for the Council, explains design, in favor of a test that would weigh the utility that the words "unreasonably dangerous" were added of the design versus the magnitude of the inherent to foreclose the possibility that makers of products risk. having the inherent potentiality for causing harm, such as drugs, whiskey, sugar, butter, etc., would Heeding the call for a different test, some courts have become "automatically responsible for all the harm explicitly rejected or modified the Restatement that such things do in the world." Thus only "bad" standard as to design defects. See Barker v. Lull whiskey, butter, etc., are subject to the Restatement's Engineering Co., Barker qualified its holding as to standard.[FN2] design defects only by applying to them the following two-pronged test: First, a product may be found defective in design if FN2. Dean Keeton considers it unfortunate the plaintiff establishes that the product failed to that Section 402A provides that as a basis of perform as safely as an ordinary consumer would recovery it must be found that the product expect when used in an intended or reasonably was both defective and unreasonably foreseeable manner. (This part of the test accepts dangerous since the latter term "was meant the Restatement standard.) Second, a product may only as a definition of defect." alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant Notwithstanding the controversy by both academe fails to establish, in light of the relevant factors, and the courts over the proper test for determining a that, on balance, the benefits of the challenged product's defective condition, the standard for all design outweigh the risk of danger inherent in such product defects under Section 402A is the same: design. Were the ordinary consumer's expectations frustrated by the product's failure to perform under the The most significant aspect of the Barker rule is its circumstances in which it failed? This standard works second prong. Once the plaintiff establishes a prima reasonably well as to those types of product defects facie case showing that his injuries were caused by a characterized as defects resulting from manufacturing product's design, the burden is shifted to the flaws those caused by a miscarriage in the defendant to prove the design was not defective by manufacturing process which produces an unintended presenting evidence of factors, such as the gravity of result. Thus, when a new product suddenly and the danger posed by the challenged design, the unexpectedly malfunctions during the course of its feasibility of a safer design, the financial cost of the normal operation, causing injury, the standard is improved design, etc. relatively easy to apply. Whether the Restatement standard should be augmented as in Barker is unnecessary for us to The consumer expectation standard, though adequate decide because we consider that appellants' evidence to identify unintended manufactured defects, is more of a defect if one existed was attributable to a difficult to apply as to the other two generally manufacturing flaw, and was not one of design. recognized types of product defects: (1) design [FN10] Appellants' expert indicated that the fire was defects those which are due to design error because caused by a malfunction in the clothes dryer. This unforeseen hazards accompany normal use of the type of defect is altogether dissimilar from the kind product created according to design, and (2) defects intentionally manufactured according to design that resulting from misinformation or inadequate causes injury. . . Our primary concern with the warnings. As to the last two defects, the standard is frustration of the ordinary consumer's expectations said to be a very vague and imprecise one because standard is its indiscriminate application to all types the ordinary consumer cannot be said to have of design defects. The Restatement standard is expectations as to safety regarding many features of particularly appropriate, however, to the facts before complexly made products that are purchased, such as us.
31 negate all alternative causes of the fire other than a defect within the dryer.[FN14] There is authority for FN10. This statement requires qualification. appellee's position, and it is exemplified most clearly A product's malfunction may of course be by the New Jersey rule, the leading case being caused by a design defect. However, for the Jakubowski. purposes of the product defectiveness inference, which we are adopting infra, FN14. Elimination of alternative causes is a when the plaintiff's evidence consists as here generally accepted type of proof for only of proof showing that a product establishing a product's defect. Other types malfunctioned during normal operation, it of proofs include the nature of the product, will be inferred that the defect was one of the pattern of the accident, the life history of construction, rather than design, because a the product, evidence of similar products malfunction of a product is not a result and uses, and the happening of the accident. ordinarily intended by the manufacturer. If the Jakubowski rule were strictly applied to the Thus, evidence of the nature of an accident itself facts in this case, it is clear that appellants could not may, under certain circumstances, give rise to a recover since their circumstantial evidence of the reasonable inference that the product was defective product's defect did not negate other causes of the because the circumstances of the product's failure accident for which the defendants would not be may be such as to frustrate the ordinary consumer's responsible.[FN16] There is, however, one type of expectations of its continued performance. proof of product defect, which, from a given set of circumstances, aids a plaintiff in meeting his burden Our next task is to decide whether, given Mr. by creating a legal inference that the product was Morrison's testimony, and the evidence relating to the defective both at the time of the injury and at the time product's malfunction during normal operating it was within the control of the supplier. This conditions, the appellants established a submissible inference arises from the occurrence of the accident case for jury consideration. itself, and the case most often cited as so holding is Greco. We approve the Greco rule. That rule, simply II. The Sufficiency of Proof as to The Existence of a states that when a product malfunctions during Manufacturing Flaw Within The Product normal operation, a legal inference, which is in effect a mirror reflection of the Restatement's standard of product defectiveness, arises, and the injured plaintiff Difficulties arise, however, in those cases in which thereby establishes a prima facie case for jury the plaintiff shows that there are several possible consideration. explanations for the accident, not all of which point to the product's defective condition. The answer frequently applied to such situations is to hold that FN16. In a perceptive law review note, it since plaintiff's burden is to establish the presence of was observed that if a plaintiff has the a defect at the time of the product's manufacture, his burden of producing evidence of a defect in burden is not met even though he presents evidence a product which malfunctions, he would of the product's defective condition at the time of generally be required to introduce the results injury without direct or circumstantial evidence of expert analysis as to the cause of its showing the product was then defective. In effect, failure, as well as evidence tending to show those decisions place on the plaintiff both the burden that it would be improbable for the defect to of producing evidence as well as the burden of arise after the product left the manufacturer's persuasion as to that issue. To so hold, however, hands. Normally, the first alternative would ignores the practical evidentiary problems which are require expert analysis of the defect (often at common to products liability actions, and the policy substantial cost), while the second would considerations of Section 402A which were designed require that the plaintiff trace the history of to assist the plaintiff in his quest for the jury's the product after it left the factory. In consideration of the issues alleged. addition to the cost and difficulty of obtaining competent expert analysis, and of tracing the history of the product prior to Appellees' primary argument is that appellants failed sale, when it is considered that the product is to establish a causal connection between their injuries often destroyed in the accident, it appears and the alleged defect because they were unable to that sustaining the plaintiff's burden under
32 such circumstances is a most formidable of hypothetical causes of the accident for which the task and serves to defeat the goals sought to defendants would not have been responsible. be achieved by the move to strict liability. Id. One commentator has suggested that a major The following policy considerations consequence of the Greco inference is that it shifts favoring the imposition of strict liability are the burden of producing evidence to the manufacturer said to have motivated the transition: (1) risk once proof of the malfunction is established. Since spreading, (2) safety incentive, (3) the procedural effect of the Greco inference is frustration of consumer expectations, and (4) identical to that of the res ipsa inference, it is more the relaxation of proof problems. accurate to state that neither the burden of proof, nor any burden of producing evidence is cast upon the defendant "except in the very limited sense that if he The Greco inference is somewhat analogous to the fails to do so, he runs the risk that the jury may ... res ipsa loquitur inference applicable to negligence find against him." Prosser, supra, s 40 at 229. Thus, cases. While, as Prosser states, "(s)trictly speaking, the practical result of the inference is that if the since proof of negligence is not an issue, res ipsa manufacturer wishes to avoid a jury's consideration loquitur has no application to strict liability; ... the of the issues,it must offer evidence showing there are inferences which are the core of the doctrine remain, no genuine issues of material fact to be resolved by a and are no less applicable." Prosser, Law of Torts, s jury rather than suggest possible reasons for the 103 at 672-73 (4th ed. 1971). Both legal inferences product's malfunction. are similar since they are based upon common sense assumptions that the occurrence of the accident is Considering the complexities of products litigation, such that in the ordinary course of events it could not and again the policy factors of Section 402A, such a have happened as to res ipsa, without the negligence solution is the better reasoned one since it is the of the person in control, , and as to the other, without manufacturer rather than the plaintiff which the product's defective condition. Additionally, both presumably is in the better position to produce the inferences are founded upon strong policy technical evidence required for determining the considerations that aid a plaintiff in meeting his existence of a product's defect. It is the one most burden of proof when direct proof of negligence or familiar with the product, its expert's intimate product defectiveness is wanting. Indeed, the case knowledge of the product and its production process giving birth to the doctrine of res ipsa, Byrne v. gives it a greater advantage over the average plaintiff Boadle, 2 H & C 722, 159 Eng.Rep. 299 (Ex.1863), in analyzing a product's failure. was heavily influenced by the plaintiff's inability to extract an explanation from the defendant, as well as The Greco inference is particularly appropriate here. his incapacity to explain how the barrel which injured Combined with the expert's testimony indicating that him fell from the second floor of Boadle's warehouse. a malfunction in the dryer was the cause of the fire, Later cases applying the res ipsa doctrine have done Mrs. Cassisi testified that the product had never been so when the evidence of the true explanation of the serviced or repaired, and that it had been normally accident is more accessible to the defendant than to operated during its 19 months' use. Given such the plaintiff. evidence, it is immaterial that the plaintiffs failed to identify the specific cause of the malfunction since it . . . is inferred that the malfunction itself, under such While all of the above cases involved products circumstances, is evidence of the product's defective either lost or destroyed, the inference is not condition at both the time of the injury and at the dependent solely upon such facts. . .. At any event, time of the sale. [FN29] the facts essential for the inference's application are simply proof of the malfunction during normal FN29. The rule which we adopt today does operation. not conflict with that stated in Royal v. Black and Decker Mfg. Co., 205 So.2d 307, Without the Greco inference, all of the above cases 309 (Fla. 3d DCA 1967), or in West v. could have been decided by directing a verdict in Caterpillar Tractor Company, Inc., supra, at favor of the defendant. Apart from the evidence 86, requiring "that the plaintiff's injury must showing the occurrence of a malfunction during the have been caused by some defect in the product's normal operation, there was no proof product." Neither of those cases stated that offered that the particular alleged defective product there need be proof of a specific defect nor was in fact defective. Moreover, there were a number did they discuss the method or quantum of
33 proof necessary to establish a defect.
Reversed as to both defendants and remanded for further proceedings consistent with this opinion.
34 that condition. FORCE v. FORD MOTOR COMPANY A product is unreasonably dangerous because of its design if [the product fails to perform as safely as 5th DCA Aug. 6, 2004. an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by MONACO, J. the manufacturer] [or] [the risk of danger in the design outweighs the benefits]. This is a product-liability case based on an alleged design defect. Francis B. Force, the plenary guardian The first parenthetical of the second paragraph is of the person and property of Mark Francis Force, an known as the consumer-expectation test. The second incapacitated person, appeals from a final judgment parenthetical is called the risk-utility test. Mr. Force in favor of the appellees, Ford Motor Company and argued that he was entitled to submit his case to the Mazda Motor Corporation. The judgment was jury on both theories. Ford and Mazda disagreed. rendered by the trial court upon the return of a jury verdict of no liability with respect to a strict liability Ford and Mazda agreed that the second parenthetical count that involved an automobile seat restraint proposed by Mr. Force-the risk-utility test-should be system. The seatbelt shoulder restraint on Mark part of the jury charge. They argued with respect to Force's vehicle had purportedly failed during a the first parenthetical, however, that the consumer- violent collision. The issue presented to us concerns expectation test is either not recognized in Florida, specifically whether under the circumstances of this or, alternatively, that it is not applicable to complex case the jury should have been instructed on the design cases such as the seatbelt dispute in the consumer-expectation test, as requested by Mr. present case. They asked, therefore, that the case be Force. Because we find that Mr. Force was entitled submitted to the jury only on the risk-utility theory. to have the jury consider his case of this theory, we Their reformulation of the risk-utility test, and the reverse. instruction eventually given by the trial court, read: A product is unreasonably dangerous when the The basic facts are not in serious dispute. Mark foreseeable risks of harm posed by the product Force was operating his Ford Escort when he collided could have been reduced or avoided by the head-on with another vehicle that crossed into his adoption of a reasonable alternative design and the lane while trying to pass. At the time of the collision failure to use a safer alternative design renders the Mr. Force was wearing his seatbelt and shoulder product unreasonably dangerous. harness in the manner intended. He sustained a severe head injury as a result. The jury returned a zero verdict. This appeal ensued. Mr. Force seeks reversal because the trial Mr. Force alleged in his complaint a count for strict court did not instruct the jury on the consumer- liability on the theory that the seatbelt and shoulder expectation test as expressed in PL-5. restraint system did not lock properly at the time of the impact. More specifically, he asserted that . . . because the lap belt locked as intended, he received no injuries to the lower part of his body. He claimed, [W]e consider the instruction on the consumer- however, that the retractor on the shoulder restraint expectation test requested by Mr. Force. In order to failed to operate properly, that too much of the seat do so, we break this matter into two sub-issues. First, belt unspooled, creating excessive slack in the we will consider whether Florida recognizes and shoulder restraint, and that his head was seriously embraces the consumer-expectation test for design injured as a result. defects under any circumstances. If so, we will next explore whether Florida courts are to apply the The case proceeded to trial only on the strict liability consumer-expectation test to the seatbelt in question. count. At the charge conference Mr. Force proposed that standard jury instruction PL 5, which is based on A. Does Florida Recognize the Consumer- section 402A of the Restatement (Second) of Torts, Expectation Test For Design Defects? be given to the jury verbatim. That instruction, as it applies to the facts of this case, reads as follows: In the byzantine world of products liability, there A product is defective if by reason of its design the are three basic families of defects that may be the product is in a condition unreasonably dangerous to subject of strict product liability: manufacturing the user and the product is expected to and does defects, design defects, and failures to warn. The reach the user without substantial change affecting present case concerns whether the seatbelt restraint
35 system was defectively designed. Under the not been adopted by any appellate court in Florida. consumer-expectation theory a product is defectively designed if the plaintiff is able to demonstrate that the . . . In summary, [w]hile there has been criticism of product did not perform as safely as an ordinary the [Second Restatement]standard, it appears from a consumer would expect when used in the intended or review of the authorities that most states use some reasonably foreseeable manner. Essentially, this test form of the consumer-expectation test when relies on deductive reasoning to conclude that the considering product liability claims. Indeed, Ford product is defective. Under the risk-utility theory a and Mazda have essentially agreed during the course product is defectively designed if the plaintiff proves of this appeal that the consumer-expectation test is that the design of the product proximately caused the one of the independent standards to be applied in at plaintiff's injuries and the defendant fails to prove least some Florida products liability cases. We agree, that on balance, the benefits of the design outweigh as well, and so hold. Ford and Mazda take the the risk of danger inherent in the design. Id. Both position, however, that this standard is not parties agree that the risk-utility standard (or, as it appropriate in considering the alleged failure of sometimes called, the risk-benefit standard), is seatbelts because of the complex nature of the device. applicable to the present dispute. We consider that next.
At the time that jury instruction PL-5 was adopted in B. Does The Consumer-Expectation Standard Apply 1983, the Committee Notes reflect uncertainty with to Allegedly Defective Seatbelt Designs? respect to whether either or both of the consumer- expectation and risk-utility tests should be given. . . ., Ford and Mazda argue with some force that the The Supreme Court commented on the instruction in consumer-expectation test cannot be applied to similar fashion at the time it was adopted, saying design defect claims involving complex products, in that: "[W]e emphasize that we are not deciding any general, and seatbelts in particular. Their argument is question of law or correctness or applicability of the summed up by the following passage from the charge in any particular case. This is the appellees' answer brief: responsibility of the trial judge and will depend on Perhaps the most significant problem with the further development of the law on a case by case consumer-expectations test is that an ordinary basis." See In Re Standard Jury Instr., 435 So.2d consumer of a complex product like an automobile 782, 783 (Fla.1983). Since then, as Ford and Mazda "simply has 'no idea' how it should perform in all candidly acknowledge, the question has remained foreseeable situations, or how safe it should be washed in uncertainty. A number of cases, however, made against all foreseeable hazards." Indeed, "a are guideposts. complex product, even when it is being used as intended, may often cause injury in a way that does Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st not engage its ordinary consumers' reasonable DCA 1981), another summary judgment case, is also minimum assumptions about safe performance." helpful. In the final analysis, the court there Mr. Force, on the other hand, argues that there is no concluded that the flaw being considered was a merit to Ford and Mazda's contention that seatbelts manufacturing defect, and not a design defect, and are too complex to justify the use of the consumer- that the consumer-expectation test was applicable in expectation test. We think there is some logic to the determining liability. It did note in dicta, however, point made by Ford and Mazda. Some products may, that while the consumer-expectation standard is in fact, be too complex for an ordinary consumer to adequate to identify unintended manufactured have any expectations concerning their proper defects, it is "more difficult to apply" to design defect operation. Seatbelts seem to be one of those products cases. . . . on the cusp.
A Florida case called to our attention by Ford and We have found no case in Florida that addresses the Mazda is Scheman-Gonzalez v. Saber Manufacturing subject of the application of the consumer- Co., 816 So.2d 1133 (Fla. 4th DCA 2002). That case expectation test to seatbelts with particularity, nor has primarily considered the duty to warn, and is, thus, of any been pointed out to us by the parties. Authorities limited utility in the consideration of the present from outside the state, however, do offer guidance. design controversy. In the course of the opinion, however, the Fourth District Court found section 2(b) Ford and Mazda lean heavily on Fremaint v. Ford of the Restatement (Third) of Torts: Product Motor Co., 258 F.Supp.2d 24 (D.P.R.2003), which Liability (1998), to be "instructive.". . .. specifically involved a purportedly defective Nevertheless, the Restatement (Third) position has seatbelt.. . .[T]he federal district court there found
36 that the consumer-expectation test was not applicable to cases having to do with claims of defects in the design of an automobile. From the automobile in general, the court interpolated to seatbelts in particular, and said that "Ordinary consumers are ill- equipped to decide what minimum safety to expect from seatbelts once a vehicle is involved in an accident, as manufacturers cannot warranty against all foreseeable injuries caused inside properly working vehicles."
A larger number of courts that have considered the issue, however, suggest that the consumer- expectation test applies fully to seatbelt failures. In Cunningham v. Mitsubishi Motors Corp., for example, the court concluded that the consumer- expectation test was the proper standard to be used in judging seatbelt failures because: Although the manner in which the seat belt in question operated may have been new, seat belts generally are familiar products for which consumers' expectations of safety have had an opportunity to develop, and the function which they were designed to perform is well known. The Supreme Court of Alaska, in holding that the trial court did not err in permitting a jury to find that an automobile seat restraint system was defective using the consumer-expectation test, concluded that: When a seat belt, designed to be an instrument of protection, becomes an instrument of life- threatening injury, a consumer is justified in concluding that it did not perform as safely as promised. A seat belt is a familiar product whose basic function is well understood by the general population. General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1221 (Alaska 1998).
We conclude that there may indeed be products that are too complex for a logical application of the consumer-expectation standard. We leave the definition of those products to be sorted out by trial courts. With respect to seatbelts, however, we believe that the cases finding that they may be tested by the consumer-expectation standard are better reasoned and more persuasive. Accordingly, inasmuch as the jury instruction requested by Mr. Force accurately stated the applicable law, and the evidence supported the giving of the instruction, and the instruction was necessary to resolve the issues properly, we hold that Mr. Force was entitled to submit his case to the jury on both the risk-utility test and the consumer-expectation test, and, therefore, reverse and remand for a new trial.
37 District Court of Appeal of Florida, Fourth District. The record reflects that Saber Manufacturing Company manufactured the wheel and that Titan Maritza SCHEMAN-GONZALEZ, etc. et al., supplied the rims. A former Saber operations Appellants, manager stated that Saber began putting a warning v. label on the 16.5 inch rims regarding mismatch SABER MANUFACTURING COMPANY; Titan problems with 16 inch tires, but was unable to recall International, Inc.; Michelin North exactly when this practice began, only that it was America, Inc., etc., et al., Appellees. probably instituted before the wheel in question was manufactured. He also stated that the tire April 10, 2002. manufacturers generally place a warning on the tire regarding the dangers of mounting the 16 inch tire on STONE, J. a 16.5 inch wheel.
David Rodriguez suffered fatal injuries when he Titan filed the affidavit of Michael Borrelli, a private attempted to mount a 16 inch Michelin tire onto a investigator, who stated that he had inspected the 16.5 inch Saber-Titan wheel. The plaintiffs, referred wheel in question and was able to read the markings, to herein as "Gonzalez," appeal summary judgments including the 16.5 inch size in at least three places on entered against them in this wrongful death lawsuit the wheel. He was also able to clearly observe a against Titan International, Inc. ("Titan"), and marking on both the inboard and outboard sidewalls Michelin North America, Inc. ("Michelin"). We of the tire, which stated, "MOUNT ONLY ON reverse. APPROVED 16 INCH RIMS."
Titan designed and manufactured the wheel rim. Gonzalez filed the affidavits of two experts in The multi-count complaint alleged that Titan was opposition to the motions for summary judgment. liable for the negligent design of the wheel and for failing to warn customers and users that the 16.5 inch According to Laughery, one of the experts, the wheel would accept a 16 inch tire, but would explode similarity of the two wheels in size and appearance when it was mounted. The complaint further alleged causes tire busters to rely on negative feedback as an that these dangers were not apparent to, or known by, indication that the tire they are mounting is not the Rodriguez. correct size. However, in the case of the 16.5 inch wheel and 16 inch tire, because there is often no As to Michelin, it was alleged that Michelin difficulty in placing the 16 inch tire on the 16.5 inch negligently manufactured the subject tire and that it rim, there may be no "feedback" to indicate a knew or should have known that the tire was mismatch. defective and unreasonably dangerous. Laughery stated that studies show that a 16 inch tire In granting summary judgment, the trial court placed on a 16.5 inch rim will not seat properly and considered several depositions which included will explode when inflated. However, the flange of testimony that Rodriguez was employed as a "helper" the rim is virtually the same diameter for the 16 and at an auto repair business and tire work was not his 16.5 inch rim. Hence, "the task of placing a 16 inch responsibility. However, there was also testimony tire on a 16.5 inch rim is no more or less difficult that Rodriguez did help change tires after being than on a 16 inch rim." taught to do so by Williams, his co-worker. Williams claimed to have warned Rodriguez he could injure Laughery concluded that the markings involved in himself if he mounted a tire on the wrong size of this case were insufficient to warn tire mounters of wheel. There was other testimony that Rodriguez the danger of mounting a 16 inch tire onto a 16.5 inch was aware of this danger. wheel. The study used by Laughery also concluded that limited warning labels, informing the user to Michael Brock, the corporate officer of the match the tire and wheel size, even if they warned of employer, testified that Rodriguez was not charged the risk of serious injury, were inadequate. The only with changing tires and was only responsible for label he viewed as adequate was one that specifically stacking the tires and cleaning up. Brock explained that a 16 inch tire could be easily passed acknowledged, however, that Rodriguez may have over the 16.5 inch rim flange but will not seat and used the tire changing machine without his will explode on inflation. knowledge.
38 Gonzalez's second expert, Milner, testified that test and would be inadmissible at trial. Although the design defects in the Saber/Titan 16.5 inch wheel and court ruled Milner's testimony with respect to the the bead in the Michelin 16 inch tire caused the defective wheel and rim design admissible, it found explosion which killed Rodriguez. Milner also that, as an expert in engineering, Milner was not confirmed that the 16 inch tire will initially be qualified to testify regarding the adequacy of accepted onto the 16.5 inch rim, but will not seat and warnings and, as such, that portion of his testimony will eventually explode. He further noted that the was inadmissible. 16.5 inch wheel is the only passenger or light truck wheel in the United States that is capable of Initially, we note that, regardless of whether portions accepting a tire which does not match its size. of the testimony of Laughery and Milner may ultimately be excluded, there is no reason to exclude Milner concluded that the subject rim is defective the factual background testimony regarding the because it is configured to accept the 16 inch tire 16/16.5 inch tire/rim mismatch phenomenon, a fact readily and this rim design violates the principle that which is also discussed in several reported and if the wheel accepts the tire, it is the appropriate size. unreported cases. He also stated that the size markings on the tire and rim are inconspicuous and are inadequate to warn tire The trial court erred in granting summary judgment mounters of the danger of a mismatch. He further in this case. Summary judgments should be granted concluded that defective design and lack of proper with caution in negligence cases. warnings caused the fatal injuries. We conclude that Michelin and Titan have failed to Milner also referred to conclusions that the 16.5 inch establish the absence of genuine issue of fact as to the rim could easily be re- designed to eliminate the need to warn and whether Rodriguez knew or should hazard of inadvertent mismatches and that the design have known of the danger. Although there is of the tire could be modified to use an alternative testimony that Rodriguez knew of the dangers of almost fail-proof bead grommet design which would mismatching tires and wheels, generally, there is no have prevented the subject accident. We note, proof that he knew of the danger involved in however, Milner cautioned that strengthening the tire attempting to mount a 16 inch tire onto a 16.5 inch bead grommets might otherwise compromise the rim or that the tire would be initially accepted onto integrity of the tire. the wheel but the beads would not seat. As such, there remains a significant question as to whether In light of the aforementioned evidence, the trial Rodriguez was aware of the particular danger court entered summary judgment against Gonzalez. involved. The court found there was no genuine issue of material fact as to whether Rodriguez knew of the Here, we deem the Restatement (Third) of Torts: importance of matching tire and wheel sizes and the Products Liability (1998), instructive. It states that a dangers in mismatching tires and wheels. Therefore, product is defective in design "when the foreseeable Titan had no duty to warn Rodriguez, who was aware risks of harm posed by the product could have been of the danger. reduced or avoided by the adoption of a reasonable alternative design" and its omission "renders the The court also found that none of the evidence was product not reasonably safe." Id. at § 2(b). sufficient to show that a lack of warning regarding Additionally, a product is considered defective "when mismatching the 16 inch tire with the 16.5 inch rim the foreseeable risks of harm posed by the product caused Rodriguez's injuries and death. Further, the could have been reduced or avoided by the provision court found that there could be "no showing of of reasonable instructions or warnings" and their proximate causation where an experienced mechanic omission "renders the product not reasonably safe." . read and did not heed the warnings while attempting to inflate a 16 inch tire on a 16.5 inch wheel." Unless the danger is obvious or known, a manufacturer has a duty to warn where its product is Of significance to the trial court was the absence of inherently dangerous or has dangerous propensities. eyewitnesses to the explosion who could testify as to how the accident occurred. From these facts, the This court has recognized that, "[t]o warn court concluded that Rodriguez's negligence alone adequately, the product label must make apparent the was the legal cause of the injuries. Further, the court potential harmful consequences. The warning should found that Laughery's affidavit regarding the be of such intensity as to cause a reasonable man to adequacy of warnings could not withstand the Frye exercise for his own safety caution commensurate
39 with the potential danger." American Cyanamid, 466 even if Rodriguez was negligent, a question of fact So.2d at 1082. In addition, "[a] warning should remains as to whether that failure was the sole contain some wording directed to the significant proximate cause of his injuries. dangers arising from failure to use the product in the prescribed manner, such as the risk of serious injury We conclude that there are questions of fact as to or death." Furthermore, as is the case when whether Michelin and Titan were required to warn considering whether the injured party knew of the Rodriguez of this particular danger, whether the danger, the sufficiency and reasonableness of a warning that existed was adequate to apprise him of manufacturer's warnings are questions of fact which the danger, and whether the lack of adequate warning are best left to the jury unless the warnings are proximately caused Rodriguez's fatal injuries. accurate, clear, and unambiguous. There is also a genuine issue of fact regarding the In Brito, we concluded that the suggestion that only design defect claim against Michelin. The trial court a qualified person install the wheel was merely an did not consider Milner's opinion of the design instruction, rather than a warning because it failed to defect, apparently because it recognized contrary inform consumers of the possible risk of death views expressed in a study attached to his affidavit. occurring with certain tire and wheel combinations. However, the record reflects that Milner did not rely Similarly, in this case, the warning on the tire on that study as support for his conclusions regarding instructed the user to mount a 16 inch tire only on a the tire bead grommet design defect and, as such, his 16 inch rim but gave no hint as to the possibility of testimony on that point may be admissible. serious injury or death or of the particular hazard regarding the 16 inch tire/ 16.5 inch rim mismatch. We recognize that where a product is reasonably safe, As the adequacy of the tire warning must be left to the fact that there may be a better alternative design the jury, it follows that the sufficiency of the is not grounds for product liability. However, while a wheel/rim label, which included only size markings, manufacturer has no duty to make a product accident must be similarly resolved. proof, see id., users are still protected, under the restatement reasoning, from products "fraught with An issue of fact also remains as to proximate cause; unexpected dangers." whether Rodriguez's injuries were more likely than not caused by the conduct of one or both defendants. Considering the issues in favor of Gonzalez, as is In Brito, this court, having found that the required, we reverse and remand for further manufacturer's duty to warn and the adequacy of the proceedings. warning were questions for the jury, noted that the question of proximate cause is also for the jury unless the facts are "so clear that reasonable people could not differ." 753 So.2d at 113. In Brito, the court noted that while the evidence strongly suggested that no warning would have stopped the decedent from placing the dangerous wheels on his Jeep, an issue of fact remained as to the failure to warn claim and, as such, the plaintiff was entitled to present the jury with that possibility. Id. Similarly, in this case, even if Gonzalez cannot prove that better warnings would have been noticed, read, or obeyed by Rodriguez, they were entitled to have the jury consider the possibility that the warning was inadequate to inform Rodriguez of the particular danger.
Rodriguez's own negligence is, if any, a matter of comparative negligence. We recognize that on appropriate facts, a trial court may determine that the plaintiff's negligence was the sole cause of his or her own injury. However, still unresolved is the issue that Rodriguez may have assumed he had a match if the tire was initially accepted onto the wheel, the exact danger claimed in the complaint. Therefore,
40 Fl. Stat. 768.76. Collateral sources of indemnity the amount of money awarded to the claimant, such percentage shall be based on the net amount of the (1) In any action to which this part applies in which award as reduced by the amounts of collateral liability is admitted or is determined by the trier of sources and as increased by insurance premiums fact and in which damages are awarded to paid. compensate the claimant for losses sustained, the court shall reduce the amount of such award by the (4) A provider of collateral sources that has a right of total of all amounts which have been paid for the subrogation or reimbursement that has complied with benefit of the claimant, or which are otherwise this section shall have a right of reimbursement from available to the claimant, from all collateral sources; a claimant to whom it has provided collateral sources however, there shall be no reduction for collateral if such claimant has recovered all or part of such sources for which a subrogation or reimbursement collateral sources from a tortfeasor. Such provider's right exists. Such reduction shall be offset to the right of reimbursement shall be limited to the actual extent of any amount which has been paid, amount of collateral sources recovered by the contributed, or forfeited by, or on behalf of, the claimant from a tortfeasor, minus its pro rata share of claimant or members of the claimant's immediate costs and attorney's fees incurred by the claimant in family to secure her or his right to any collateral recovering such collateral sources from the tortfeasor. source benefit which the claimant is receiving as a In determining the provider's pro rata share of those result of her or his injury. costs and attorney's fees, the provider shall have deducted from its recovery a percentage amount (2) For purposes of this section: equal to the percentage of the judgment or settlement which is for costs and attorney's fees. (a) "Collateral sources" means any payments made to the claimant, or made on the claimant's behalf, by or . . . pursuant to: (8) Reimbursement of a collateral sources provider pursuant to this section shall satisfy such collateral 1. The United States Social Security Act, any sources provider's right of subrogation or federal, state, or local income disability act; or any reimbursement. The provider shall have no right of other public programs providing medical expenses, subrogation or reimbursement for collateral sources disability payments, or other similar benefits, except payments made after the date of waiver, settlement, those prohibited by federal law and those expressly or judgment. excluded by law as collateral sources. (9) A collateral source provider claiming a right of 2. Any health, sickness, or income disability subrogation or reimbursement under this section shall insurance; automobile accident insurance that cooperate with the claimant by producing such provides health benefits or income disability information as is reasonably necessary for the coverage; and any other similar insurance benefits, claimant to prove the nature and extent of the value except life insurance benefits available to the of the collateral sources provided. The failure of the claimant, whether purchased by her or him or collateral source provider to cooperate may be taken provided by others. into account by the court in determining the right to or the amount of the reimbursement asserted. 3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.
. . .
(3) In the event that the fees for legal services provided to the claimant are based on a percentage of
41 FLORIDA PHYSICIAN'S INSURANCE law collateral source rule. RECIPROCAL v. STANLEY 452 So. 2d 514 Petitioners claim that evidence of free or low cost services from governmental or charitable agencies Fl. Sup. Ct. April 12, 1984. available to anyone with specific disabilities is admissible on the issue of future damages. We McDONALD, Justice. agree. Such evidence violates neither the statutory nor the common-law collateral source rule and does This case is before us to review a district court not, therefore, require a new trial. decision, which reversed a judgment for the defendants in a medical malpractice action and The district court correctly found section 768.50, remanded for a new trial. The district court held that Florida Statutes (1981), inapplicable to the the jury verdict had been tainted by improperly unliquidated future damages at issue here. Section adduced evidence as to the charitable and 768.50, which requires the trial court to reduce the governmental sources for the special therapy and jury verdict award in medical malpractice cases by education needed by the injured minor plaintiff and the amount of all collateral source payments available available to his family at little or no cost regardless of to the plaintiff, only addresses liquidated collateral who caused the injury. In an unpublished order source payments which have been paid. However, denying the defendants' motion for rehearing the the district court should also have found that the district court certified to us that this decision passes admission in this case of evidence concerning future on the following question of great public importance: governmental and charitable services did not violate Should Florida courts exclude from jury the common-law collateral source rule. consideration evidence of the availability of free public schools, and free or low-cost public or We believe that the common-law collateral source private non-profit therapy services to all members rule should be limited to those benefits earned in of the public because of the common law collateral some way by the plaintiff. Governmental or source rule? charitable benefits available to all citizens, regardless We answer the certified question in the negative of wealth or status, should be admissible for the jury and quash the decision under review. to consider in determining the reasonable cost of necessary future care. Keeping such evidence from Tommy Stanley and his parents brought a medical the jury may provide an undeserved and unnecessary malpractice action against the petitioners to recover windfall to the plaintiff. We find persuasive the damages for the retardation and cerebral palsy following reasoning advanced by the Supreme Court Tommy has suffered since birth. The Stanleys of Illinois in refusing to allow a plaintiff a windfall alleged that Tommy's injuries resulted from the recovery for the value of free medical services negligent failure to diagnose and properly treat an received in a charitable hospital: oxygen deprivation which began shortly before [T]he policy behind the collateral-source rule Tommy's birth. simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the In order to prove specific damages the Stanleys services for which he seeks compensation. This is presented expert testimony as to the expected cost of further made apparent upon comparison of the physical therapy, speech therapy, and special present case with a situation in which the education Tommy would need. The trial court collateral-source rule is frequently applied, that of permitted the petitioners, over the Stanleys' objection, the defendant who seeks a reduction in damages to cross-examine these expert witnesses about the because the plaintiff has received insurance availability and effectiveness of free or low-cost benefits. "It is a well-settled rule of damages that charitable and governmental programs available in the amount recoverable for tortious personal the community to meet Tommy's needs. Petitioners' injuries is not decreased by the fact that the injured counsel used this information in summation to argue party has been wholly or partly indemnified for the that Tommy could be taken care of in the community loss by proceeds from accident insurance where the if the jury did not find the petitioners liable for tortfeasor did not contribute to the payment of the Tommy's injuries. The jury found no liability, and premiums of such insurance. This rule is usually the Stanleys appealed. The district court reversed and justified on the basis that the wrongdoer should not remanded for a new trial, holding that the admission benefit from the expenditures made by the injured of evidence concerning the available charitably and party in procuring the insurance coverage." In a governmentally funded care violated the common- situation in which the injured party incurs no
42 expense, obligation, or liability, we see no from the Shriners' Hospital prior to seeking justification for applying the rule. We refuse to compensation for the same services from the join those courts which, without consideration of tortfeasor. The Illinois Supreme Court held that the the facts of each case, blindly adhere to "the collateral source rule simply does not apply if the collateral source rule, permitting the plaintiff to plaintiff has incurred no expense, obligation, or exceed compensatory limits in the interest of liability in obtaining the services for which he seeks insuring an impact upon the defendant." The compensation. I read this as simply stating that an purpose of compensatory tort damages is to individual is not entitled to recover for the value of compensate; it is not the purpose of such damages previously rendered free services he has voluntarily to punish defendants or bestow a windfall upon obtained. plaintiffs. The view that a windfall, if any is to be enjoyed, should go to the plaintiff borders too The Peterson court was not called upon to, nor did it, closely on approval of unwarranted punitive decide the issue of reducing tortfeasor liability for damages, and it is a view not espoused by our future care because of the current availability of cases. charitable and public welfare programs. . . . As the Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d majority opinion points out, the trial court permitted 353, 362-63, 29 Ill.Dec. 444, 448, 392 N.E.2d 1, 5 the petitioners, over the Stanleys' objections, to cross (1979). examine expert witnesses about the current availability and effectiveness of free or low cost The reasons set forth in Peterson are just as valid in charitable and governmental programs available in the present case. The jury properly heard all the the community to meet Tommy's needs, and to use relevant evidence on future damages. We cannot this information in summation to argue that Tommy agree with the district court that such evidence would be taken care of in the community even if the tainted the jury verdict for the defendants on liability. tortfeasor were not held fully liable for Tommy's injuries. This opinion should not be interpreted as limiting a plaintiff suffering from a particular continuing . . .Even were I inclined to follow the Peterson disability to recover only the future cost of the free or rationale, I would not be inclined to extrapolate by low cost governmental or charitable care available to taking the rationale a second step and applying it to all persons with that disability. Evidence of the speculative value of future public assistance. availability, cost, and quality of such care is relevant There is simply no assurance that public assistance to assist the jury in determining the reasonable cost of will continue, that the injured victim will continue to the plaintiff's future care. The jury remains free to be eligible for such assistance if it continues, or that find that the publicly available services do not meet the assistance, if it continues, will continue at the the plaintiff's future needs. The jury may find same level. By denying the victim full private care at higher cost more appropriate in some compensation for the cost of future care, the majority circumstances, but the jury should consider those opinion transfers the responsibility for the tort from future services available to all, regardless of wealth the tortfeasor, where it legally and morally belongs, or status, when deciding on the proper award of to the victim and the community. I cannot agree that future damages. The trial court did not err by an injured victim should be required to seek charity allowing such consideration by the jury in this case. or public aid, or that the compassion of charitable contributors and taxpayers should become a device Accordingly, we quash the decision under review and for reducing the legal liability of a tortfeasor. remand for proceedings consistent with this opinion. In my opinion the decision below is a well-reasoned It is so ordered. and correct statement of the law. I would answer the certified question in the affirmative and approve the SHAW, Justice, dissenting. decision of the district court.
In adopting the reasoning of the Illinois Supreme Court in Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 392 N.E.2d 1 (1979), the majority fails to appreciate the factual dissimilarity to the present case. A critical distinction between the two cases is that in Peterson the plaintiff voluntarily applied for, received, and completed charitable surgical services
43 consider this additional evidence along with the PD 1 Punitive Damages - Bifurcated Procedure: evidence already presented, and you should decide any disputed factual issues by the greater weight of the evidence. a. First stage of bifurcated punitive damages procedure: (2) Punitive damages - determination of amount: (1) Introduction:
If you find for (claimant) and against defendant You will now determine the amount of punitive (name person or entity whose conduct may warrant damages, if any, to be assessed as punishment and as punitive damages), you should consider whether, in a deterrent to others. This amount would be in addition to compensatory damages, punitive damages addition to the compensatory damages you have are warranted in the circumstances of this case as previously awarded. In making this determination, punishment and as a deterrent to others. you should consider the following:
The trial of the punitive damages issue is divided into (1) the nature, extent and degree of misconduct and two stages. In this first stage, you will decide whether the related circumstances, including the following: the conduct of (name defendant whose conduct may warrant punitive damages) is such that punitive . whether the wrongful conduct was motivated damages are warranted. If you decide that punitive solely by unreasonable financial gain; damages are warranted, we will proceed to the second stage during which the parties may present . whether the unreasonably dangerous nature of the additional evidence and argument on the issue of conduct, together with the high likelihood of injury punitive damages. I will then give you additional resulting from the conduct, was actually known by instructions, after which you will decide whether in [(defendant)] your discretion punitive damages will be assessed and, if so, the amount. . whether, at the time of [loss] [injury] [or] [damage], [(defendant)] had a specific intent to harm (2) Punitive damages generally: (claimant) and the conduct of [(defendant)] did in fact harm (claimant), [and] Punitive damages are warranted if you find by clear and convincing evidence that (name person whose [(2) [the] [each] defendant's financial resources; conduct may warrant punitive damages) was and] personally guilty of intentional misconduct or gross negligence. "Intentional misconduct" means that [(3) (identify any other circumstance that the jury (name person whose conduct may warrant punitive may consider in determining the amount of punitive damages) had actual knowledge of the wrongfulness damages.)] of the conduct and the high probability that injury or damage to (claimant) would result and, despite that knowledge, intentionally pursued that course of [However, you may not award an amount that would conduct, resulting in injury or damage. "Gross financially destroy (defendant).] negligence" means that the conduct of (name person whose conduct may warrant punitive damages) was You may in your discretion decline to assess punitive so reckless or wanting in care that it constituted a damages. [You may assess punitive damages against conscious disregard or indifference to the life, safety, one defendant and not the other[s] or against more or rights of persons exposed to such conduct. than one defendant. Punitive damages may be assessed against different defendants in different [sections re liability for high official and for amounts.] vicarious liability omitted] (3) Closing instruction second stage: b. Second stage of bifurcated punitive damage Your verdict on the issues raised by the punitive procedure: damages claim of (claimant) against (defendant) must (1) Opening instruction second stage: be based on the evidence that has been received The parties may now present additional evidence during the trial of the first phase of this case and on related to whether punitive damages should be the evidence that has been received in these assessed and, if so, in what amount. You should proceedings and the law on which I have instructed you. In reaching your verdict, you are not to be
44 swayed from the performance of your duty by prejudice or sympathy for or against any party.
Your verdict must be unanimous, that is, your verdict must be agreed to by each of you.
When you have agreed on your verdict, the foreman or forewoman, acting for the jury, should date and sign the verdict. You may now retire to consider your verdict.
45 involved in a motor vehicular accident on RAMOS v.NORTHWESTERN MUTUAL November 28, 1969. At the time, WILLIAMS was INSURANCE COMPANY the insured under a policy of automobile liability insurance issued by Northwestern Mutual Fl Sup. Ct. May 26, 1976. Insurance Company, hereinafter referred to as ROBERTS, Justice. NORTHWESTERN. '2. On August 9, 1971, the plaintiff initiated this This cause is before us on petition for writ of action against WILLIAMS and certiorari, buttressed by the District Court of Appeal, NORTHWESTERN. Third District's certificate that in disposing of the '3. NORTHWESTERN answered plaintiff's cause, it had passed upon a question of great public complaint alleging, among other things, that there interest. was no coverage for WILLIAMS because of his failure to give NORTHWESTERN notice of the The controlling question in the cause . . .involves accident and his failure to cooperate with whether or not an automobile insurance carrier may NORTHWESTERN. still be permitted to avoid liability pursuant to a '4. Actual service of process was never made upon provision in its contract requiring the insured to give WILLIAMS, notwithstanding valiant and persistent his cooperation in connection with any claim of efforts by plaintiff's counsel to locate WILLIAMS which the carrier would have responsibility under the and effect such service. contract notwithstanding recent developments in the '5. Upon appropriate motion the Court found that law. These recent developments referred to include WILLIAMS was concealing his whereabouts and Florida's Financial Responsibility Act, provisions attempting to avoid service of process and, contained in Florida Automobile Reparations Reform accordingly, impressed jurisdiction over Act, and decisions of this Court. WILLIAMS on May 2, 1974. '6. The cause proceeded to trial, except as to the Petitioner, Mercedes Ramos, sued Lawrence issue of coverage, on October 21, 1974, and verdict Williams and Respondent Northwestern Mutual was returned for plaitniff in the sum of $52,037.00. Insurance Company to recover for injuries resulting '7. NORTHWESTERN received notice of the from an automobile collision proximately caused by accident from plaintiff's counsel on December 29, the negligence of Williams. Respondent 1969. However, WILLIAMS never contacted Northwestern answered admitting the issuance of the NORTHWESTERN, failed to report the accident, policy of automobile liability insurance to defendant failed to notify NORTHWESTERN of his apparent Williams but further affirnatively alleging that the changes of address and, despite efforts of policy of insurance does not provide coverage for the NORTHWESTERN And plaintiff's counsel, was defendant in this case because the accident was not never located. reported by him to his insurance carrier nor has he '8. WILLIAMS breached the terms of the policy cooperated with Northwestern as required by the issued by NORTHWESTERN because of his total terms of the policy of automobile liability insurance. failure to cooperate. Further, the breach was The trial judge granted Northwestern's motion to material and substantially prejudiced sever the trial on coverage from the original claim NORTHWESTERN. relating to liability and damages. Except as to the 'It is, therefore, the opinion and judgment of this issue of coverage the cause proceeded by jury Court that WILLIAMS was not entitled to trial . . .. Final judgment was entered against coverage under the policy Williams in the amount of $52,037.00. Entry of . . . . judgment with respect to Northwestern was reserved by the trial court for determination at a later date. Plaintiff appealed to the District Court of Appeal, Third District, which affirmed the judgment of the After non-jury trial on the issue of insurance trial court although expressly stating that it did so in coverage, . . . the trial court entered final judgment reliance on past precedent. The District Court opined finding no coverage by the insurance carrier because that the plaintiff made a persuasive argument and but of the total non-cooperation of the insured. for precedent . . .would have been inclined to reverse Specifically, the trial court made the following the trial court's judgment. findings of fact and conclusions of law: '1. The plaintiff and Lawrence J. Williams, The District Court concluded that it would certify the hereinafter referred to as WILLIAMS, were matter to this Court as one passing upon a question of great public interest in that it determines that,
46 notwithstanding recent developments in the law, an of a policy, the lack of cooperation must be material automobile insurance carrier may still be permitted to and the insurance company must show that it was avoid liability pursuant to a provision in its contract substantially prejudiced in the particular case by requiring the insured to give his cooperation in failure to cooperate. Furthermore, the insurer must connection with any claim of which the carrier would show that it has exercised diligence and good faith in have responsibility under the contract. bringing about the cooperation of its insured and must show that it has complied in good faith with the Respondent, Insurance Company, suggests in line terms of the policy. with past precedent of this Court and other Florida Appellate Courts, that where an insured has a Not every failure to cooperate will release the contractual duty to cooperate with the insurer and insurance company. Only that failure which there is undisputed evidence that the insured failed to constitutes a material breach and substantially cooperate, thereby breaching his contractual prejudices the rights of the insurer in defense of the obligation to the substantial prejudice of the insurer cause will release the insurer of its obligation to pay. in that the insurer was (1) unable to confirm that the The question of whether the failure to cooperate is so vehicle listed was the one involved in the accident, substantially prejudicial as to release the insurance (2) unable to determine the liability situation, (3) company of its obligation is ordinarily a question of unable to determine if there were any passengers in fact. . . the vehicle in order to obtain their version of the intersectional accident and the existence of injuries Accordingly, the decision of the District Court is inasmuch as the police report indicated no visible affirmed and the writ is discharged. injuries, and (4) unable to obtain the insured's cooperation in the defense of the case, an automobile It is so ordered. insurance carrier may still be permitted to avoid liability based upon lack of cooperation. . . . Sub judice, the trial court found that the insured failed completely to cooperate with Northwestern Mutual and found that this breach of the terms of the insurance policy was material and substantially prejudiced Northwestern Mutual. Restating the findings and conclusions of the trial court, the District Court affirmed the final judgment denying coverage.
In light of current public policy . . ., petitioner requests that this Court recede from the Florida decisions which stand for the proposition that an insurer may deny coverage and avoid payment of compensation to the victim of the insured's tort where the insured has been guilty of lack of cooperation which is material and is of such a nature as would substantially prejudice the rights of the insurer, where the insurer has exercised diligence and good faith in seeking to bring about the cooperation of the insured, and where the insurer has in good faith complied with the terms and conditions of the policy.
. . .We are not unmindful of the decisions cited by petitioner, but we adhere to the general philosophy of [our] precedent[s] . . . We do not feel that the compulsory insurance law or third party beneficiary concept are sufficient justification to recede from that reasoning.
This Court in American Fire and Casualty Co. v. Vliet, supra, emphasized that to constitute the breach
47