News Room

News Room

Tort Update

December 5, 2017

Dear Ladies/Gentlemen:

The Florida Supreme Court and the Florida District Courts of Appeal have recently issued several opinions concerning premises liability that may be of interest to you.

EXECUTIVE SUMMARY

In Worley v. Central Florida Young Men’s Christian Ass’n, 42 Fla. L. Weekly S443 (Fla. April 13, 2017)[1], the Supreme Court held that the attorney-client privilege precludes the defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment. Likewise, the attorney-client privilege allows plaintiff’s counsel to decline to produce documents related to a possible referral relationship between the firm and plaintiff’s treating physician.

In Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017), the First District Court of Appeal affirmed the trial court’s summary judgment for the defendant supermarket where the plaintiff tripped over a pallet which he had previously seen. The First District determined that the defendant did not owe a duty to warn the plaintiff of the open and obvious condition since the plaintiff’s knowledge of the condition was equal to or superior to that of the Defendant. Additionally, the defendant did not breach its duty to maintain the premises in a reasonably safe condition as the pallet’s location was open and obvious and not inherently dangerous. Moreover, even if the pallet’s location was dangerous, the court found that it was so open and obvious, and previously observed by the plaintiff, that the defendant could reasonably have expected the plaintiff to protect himself from the purported dangerous condition.

In Wilson-Greene v. City of Miami, 208 So. 3d 1271 (Fla. 3d DCA 2017), the Third District Court of Appeal affirmed the trial court’s summary judgment in favor of the defendant owner of a building and the defendant maintenance company where the plaintiff stepped in soup on the floor of the building lobby and there was no evidence that the defendants were on notice of the dangerous condition. Although the Plaintiff testified that the soup was “not hot,” this in itself was insufficient to establish constructive notice as a jury would need to engage in an impermissible stacking of inferences to conclude that the soup had been on the floor long enough to cool down, since there was no evidence that the soup was hot when it was initially spilled.

Worley v. Central Florida Young Men’s Christian Ass’n, 42 Fla. L. Weekly S443 (Fla. April 13, 2017)

FACTS AND PROCEDURAL HISTORY

This matter arises from a trip and fall in a parking lot on the defendant’s premises. During discovery, the defendant repeatedly attempted to discover the relationship between the plaintiff’s law firm and her treating physicians. The defendant was determined to expose that there existed a “cozy agreement” between plaintiff’s law firm and her treating physicians, which was suspected due to the plaintiff’s exorbitant medical bills. Significantly, the treating physicians in question were previously disclosed by the plaintiff as expert witnesses and were anticipated to provide an expert opinion on the issues of permanency and reasonableness and necessity of care and treatment (the so-called ‘hybrid witness’[2]).

The plaintiff opposed all attempts by the defendant’s counsel to discover information regarding the referral relationship between plaintiff’s law firm and plaintiff’s treating physicians, citing the attorney-client privilege. Over the plaintiff’s objection, the trial court ordered the plaintiff to produce: (1) complete copies of all documents reflecting agreements regarding the billing for patients or any referral of a client by any attorney employed by or affiliated with the plaintiff’s law firm to any of the subject providers, and vice versa; and (2) the names of all cases where a client was referred by an attorney employed by or affiliated with the plaintiff’s law firm to any of the subject providers, and vice versa. Additionally, the trial court ordered that if the subject providers did not have the requested information, then the plaintiff’s law firm was to produce it, but did not specify which party had to incur the costs of complying with the order.

The plaintiff filed a petition for writ of certiorari with the Fifth District Court of Appeal, arguing that the trial court’s order: (1) required production of information protected by attorney-client privilege; (2) required that the plaintiff to produce documents that did not exist; (3) required the plaintiff’s law firm, a nonparty, to produce the information; (4) required the plaintiff or the plaintiff’s law firm to engage in an unduly and financially burdensome production; (5) required the plaintiff’s law firm to incur all of the costs associated with the production of the ordered discovery; and (6) expanded the scope of bias-related discovery that is otherwise permitted.

The district court denied the certiorari petition, finding “that it was appropriate for [the defendant] to ask [the plaintiff] if she was referred to the relevant treating physicians by her counsel or her counsel’s firm.”  It also found no error regarding the trial court’s order requiring the plaintiff to produce “any and all documents reflecting formal or informal agreements, arrangements, and understandings regarding the billing for patients or any direct or indirect referral of a client by any attorney employed by or affiliated with [the plaintiff’s law firm]” to any of the treating physicians in this case. Accordingly, the district court certified conflict with the Second District’s decision in Burt v. Government Employees Ins. Co., 603 So.2d 125 (Fla. 2d DCA 1992), which held that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by the attorney-client privilege.

FLORIDA SUPREME COURT DECISION

The Supreme Court quashed the decision of the Fifth District and approved the decision of the Second District Court of Appeal.  In a 4-3 ruling, the Court determined that the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is not discoverable and concluded that asking whether an attorney referred a client to a particular physician “implicates a confidential communication between the attorney and the client.”

The Court differentiated the facts of the instant case from that of Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999), finding that in Boecher the insured sought discovery from the other party, in that case Allstate Insurance, regarding the financial relationship Allstate had with its hired expert.  However, in the instant case, the defendant is seeking discovery of the relationship between the plaintiff’s law firm, a non-party, and the plaintiff’s treating physicians.  Further, Boecher dealt with the discovery of experts who had been hired for the purposes of litigation.

As to whether an attorney’s referral to a physician was protected by attorney-client privilege, the Court found that though the plaintiff’s referral to and treatment by a particular physician were underlying facts, the question, “[d]id counsel refer [the plaintiff] to a particular physician [?]” requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney. The question elicits a confidential communication between the attorney and the client and is therefore protected by attorney-client privilege.

Take away:

While the recent Supreme Court decision prevents defense counsel from asking a plaintiff whether he or she was referred to a particular physician by his or her attorney, this decision still leaves open alternative avenues to discover referral relationships and demonstrate that the physician has an interest in the outcome of the litigation.

  • Intake Forms: Many medical facilities have new patient intake forms which inquire as to who referred the patient to the physician’s office. If the plaintiff discloses that his/her attorney referred him/her, then no privilege should apply.
  • Plaintiff’s Deposition: Defense counsel should still be able to ask if another physician referred the plaintiff or if any of plaintiff’s friends or relatives referred the plaintiff to the particular physician.
  • Relatives and Friends Depositions: Defense counsel should also be able to depose plaintiff’s relatives or friends to ask whether they know who referred the plaintiff to his/her doctor.  Remember that the plaintiff waives attorney-client privilege if they disclose their communications with their attorney to others.
  • Treating Physician Depositions: Defense counsel should be able to ask the plaintiff’s physician during his/her deposition whether he or she knows who referred the plaintiff for treatment.  If the physician testifies that the plaintiff’s attorney referred the plaintiff, then the privilege has been waived through disclosure.
  • Prior Testimony of the Treating DoctorsIf the physician has testified in other cases in which the same attorneys represented the plaintiff, then defense counsel should inquire as to those particular cases.
  • Letters of Protection: The Supreme Court decision allows the defendant to request copies of any letters of protection (LOP) to prove bias on the part of the treating physician.

Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017)

FACTS AND PROCEDURAL HISTORY

This matter arises from a trip and fall over an empty pallet on the defendant’s premises, Winn-Dixie Stores Inc. On December 10, 2013, the plaintiff went to the defendant’s store premises to purchase liquor.  He made four trips into the store on the same day. On his first trip, he entered the store, purchased liquor, and then left to place his purchase in his vehicle.  He then returned to the store three times to retrieve empty boxes for his sister-in-law, who was moving.  During this time, an employee for the Lewis Bear Company, the defendant beer distribution company, was delivering a shipment of beer.  The beer was stacked five feet high on a pallet between the defendant’s store entrance and exit doors.  There was also an empty pallet sitting on the pallet jack’s prongs to the right of the exit.

On the plaintiff’s third trip exiting the defendant’s premises, the plaintiff admitted that he saw the empty pallet when he exited the store and took four more steps before tripping over it and injuring himself.  In fact, the surveillance video footage of the incident confirmed the plaintiff had knowledge of the location of the pallet as it depicted the plaintiff walking so as to avoid the empty pallet twice prior to his fall.

The plaintiff sued for negligently failing to warn of the dangerous condition and negligently failing to make the sidewalk safe to walk across. The defendants moved for summary judgment. The trial court granted summary judgment in favor of the defendants finding the defendants owed no duty to warn the plaintiff of the pallet because the plaintiff was already aware of the condition. The court further found the condition to have been so open, obvious, and ordinary that it was inherently not dangerous as a matter of law, absolving the defendants of liability.  The plaintiff appealed.

APPELLATE COURT DECISION

On appeal, the court was tasked with determining whether the defendants violated either a duty to warn of a dangerous condition or a duty to maintain the premises in a reasonably safe condition.  The First District Court of Appeal held that condition of the pallet, which the plaintiff saw twice before he fell, was open and obvious, and thus the defendants did not breach duty to maintain the premises in a reasonably safe condition.

The court acknowledged that a landowner has two distinct duties to business invitees:  (1) the duty to warn of latent, dangerous conditions, and (2) the duty to maintain the premises in a reasonably safe condition.  However, the court found that for analytical purposes these two duties are not mutually exclusive, as the open and obvious nature of a condition may preclude the breach of either duty.

The court found that there are also two types of obvious conditions: (1) where the condition is so “open and obvious and not inherently dangerous”; or (2) where the condition may be dangerous, but is “so open and obvious that an invitee may be reasonably expected to discover them to protect himself.”

Here, the court concluded that the location of the pallet was open and obvious, and not inherently dangerous.  The court reasoned that there are times when conditions are so common or so innocuous in everyday life that they should not impose liability on the land owner.  Moreover, even if the pallet’s location was dangerous, the court found it was so open and obvious, and previously observed by the Plaintiff, that the defendant could reasonably have expected the plaintiff to avoid the allegedly dangerous condition.  Accordingly, the court affirmed the grant of summary judgment.

The Brookie case distinguishes a factually similar case, Moultrie v. Consolidated Stores Int’l Corp., 764 So.2d 637 (Fla. 1st DCA 2000)In the Moultrie case, the plaintiff brought a premises liability action against the store after she tripped and fell over an empty wooden pallet in store aisle.  The Circuit Court granted summary judgment for the store. The plaintiff appealed and the First District Court of Appeal held that fact issues as to whether the empty wooden pallet in the store aisle was an “open and obvious” danger precluded summary judgment.  The Court in Brookie differentiates these two cases by stating:

“In Moultrie, this court properly reversed summary judgment where, unlike here, the [plaintiff] did not see the empty pallet left unmarked in the store aisle, and she fell over the pallet while looking upward in another direction and backing up, tripping over the pallet. Thus, ‘the height of the pallet was such that it might not fall within the line of vision of adult invitees who entered … to purchase items placed on counters and shelves.’ … Here, [the plaintiff] actually observed the pallet’s location; thus, even assuming the pallet created a dangerous condition, [the plaintiff] had a duty to avoid the previously observed pallet, which he did twice before he fell.”

Moultrie reversed summary judgment where, unlike here, the plaintiff did NOT see the empty pallet left unmarked in the store aisle, and she fell over the pallet while looking upward in the other direction and backing up.  In the Moultrie case, the court reasoned that the height of the pallet was such that it might not fall within the line of vision of invitees who entered to purchase items placed on counters or shelves, as such, the condition was not open and obvious.

Take away:

Although not a clear win for the defendants seeking to avoid liability on the basis that an empty pallet is an “open and obvious” danger, this case will prove helpful in cases in which:

  • the location of the pallet is “open and obvious,” e.g.,temporary placement of a pallet outside a store’s exit;
  • the plaintiff is walking towards the pallet as opposed to backing into the pallet;
  • the plaintiff has previously observed the pallet; and/or
  • the plaintiff has safely walked around the pallet previously.

Wilson-Greene v. City of Miami, 208 So. 3d 1271 (Fla. 3d DCA 2017)

FACTS AND PROCEDURAL HISTORY

This matter arises from a slip and fall on green pea soup near an elevator owned by the City of Miami. On May 20, 2008, the Plaintiff entered the lobby area of the City’s building to submit paperwork in connection with construction work the City was doing on her home. When the plaintiff approached the elevators on the lobby level, she did not see anything on the floor. Approximately 15 to 20 minutes later, after dropping off her paperwork, the plaintiff took the elevators back down to the lobby level. When she exited the elevator on the lobby level she took a few steps and slipped on green pea soup. Although there was a restaurant in the lobby of the building, there was no evidence in the record that the restaurant was serving pea soup that day and the plaintiff testified the substance was “not hot.”

The City had a maintenance contract between it and a maintenance company, which required in pertinent part, that the company “pay close attention to the 3–story lobby area” and “not to underestimate the lobby requirements … as this is a critical area of importance.” Additionally, the contract stated that that the maintenance company was to “police [the] area and rearrange furniture on a daily basis.  The Plaintiff argued that this contractual language created a duty to constantly patrol and supervise the area where the accident occurred.

The maintenance company moved for summary judgment on the grounds that it did not owe the plaintiff a legal duty to “constantly patrol and supervise the area where the incident occurred.” Alternatively, if the court found it did owe a duty to the plaintiff, the maintenance company argued it had no actual or constructive notice of the dangerous condition.  The City ore tenus moved for summary judgment on the same grounds. The trial court granted summary judgment in favor of both the maintenance company and the City.  The plaintiff appealed.

APPELLATE COURT DECISION

On appeal, the court was tasked with determining whether the contract between the city and the maintenance company impose a heightened duty of care toward business invitees. The Third District Court of Appeals held that the contract language did not create a contractual duty on the part of the maintenance company to constantly patrol the building and look for dangerous conditions. Furthermore, the court found that the language of the contract was insufficient to impose a heightened duty of care on the City or the maintenance company.

Additionally, there were no permissible inferences upon which the plaintiff could rely in defense of the motions for summary judgment to demonstrate the existence of actual or constructive notice.  The court concluded that neither the City nor the maintenance company had actual notice of the presence of the green soup on the floor since no one saw it spill on the floor and no one knows how it got there.  Alternatively, to create an issue of fact as to the defendants’ constructive notice of a dangerous condition, the length of time that the condition existed must be considered. The court found that the plaintiff’s testimony that the soup was “not hot” was insufficient to create a genuine issue of material fact so as to preclude summary. The court reasoned that a finding of constructive notice in the instant case would require the jury to engage in an impermissible stacking of inferences to conclude that the soup had been on the floor long enough to cool down, since there was no evidence that the soup was hot when it was spilled.  Accordingly, the court affirmed summary judgment.

Take away:

Overall, this case will prove very helpful to defendants seeking to avoid liability in similar cases where the plaintiff intends to establish constructive notice merely testifying that the substance was “not hot.”  Notably, however, this case will not be beneficial in cases where melting substances are involved.  In those instances, the Wilson-Green case holds that there is no need to infer the substance was previously frozen.

The aforementioned cases highlight the importance of hiring counsel familiar with personal injury claims and who can properly preserve and argue defenses as the case progresses. We hope that you found these cases both helpful and insightful. Should you have any questions with respect to the foregoing, please do not hesitate to contact the undersigned.

Very Truly Yours,

JOHN BOND ATKINSON

TIFFANY A. BUSTAMANTE

[1] This opinion has not been released for publication in the permanent law reports and is subject to revision or withdrawal.

[2]A treating physician witness who also provides an expert opinion is referred to by the courts as a “hybrid witness.”