News Room

News Room

Permanent Injuries Do Not Guarantee Award of Future Non-Economic Damages * * * What “Duty” is Owed to the Trespassing Victim * * * Does Removal of Premises End Liability * * * No Reasonable Expectation of Privacy on Facebook

February 11, 2015

Dear Ladies and Gentlemen:

This month we would like to share with you some recent opinions from the Florida District Courts of Appeal that may be of interest to you.

In Buitrago v. Feaster, the Second District Court of Appeals found that Allstate v. Manasse expressly rejected the notion that a verdict is inadequate as a matter of law when a jury finds permanent injury but does not award future intangible damages. When considering a motion for a new trial the trial court must ask “whether the verdict is against the manifest weight of the evidence.”

In Nicholson v. Stoneybrook Apartments, LLC, the Fourth District Court of Appeals held that the trial court did not err when it allowed the jury to determine whether the Plaintiff was a trespasser or invitee where the Plaintiff argued that her case was based on negligent security, not premise liability. The court stated that negligent security cases clearly fall within the auspice of premises liability as opposed to ordinary negligence.

In Andrew Hall v. Joshua Dean West, et al., the Second District affirmed a summary judgment entered in favor of the Defendant beach resort, finding that the resort owed no duty of care to the Plaintiff who was injured by a patron of the resort after he had left the premises.

In Maria F. Leon Nucci and Henry Leon v. Target Corp. et al., the Fourth District Court of Appeals held that the trial court did not depart from the essential requirements of the law when it granted an order compelling discovery of the Plaintiff’s social networking account for a period commencing two years prior to the accident at issue because posts made on social media are not private or protected.

1.     Buitrago v. Feaster, 40 Fla. Law Weekly D81 (Fla. 2nd DCA December 31, 2014)


Feaster was injured in a four-car collision caused by Zapata who was driving Buitrago’s truck. At the completion of a jury trial, the jury awarded Feaster damages for past and future medical expenses, lost wages, and past non-economic damages. The Jury did not award any future non-economic damages.

Feaster then moved for a new trial and argued that the evidence and the verdict established that she was legally entitled to future non-economic damages. Feaster cited to Allstate v. Manasse for the proposition that a jury’s finding of permanent injury entitled a Plaintiff to recover future non-economic damages as a matter of law. The trial court granted Feaster motion and Buitrago appealed.


The Second District Court of Appeals reversed the trial court’s order for a new trial. finding that the Supreme Court’s decision in Allstate v. Manasse expressly rejected the principle that a verdict is inadequate as a matter of law when a jury finds permanent injury, but does not award future intangible damages. The correct standard to apply in considering a motion for new trial is “whether the verdict is against the manifest weight of the evidence.” The Second District, then remanded the case for a reconsideration in light of the proper legal standard.

2.     Nicholson v. Stoneybrook Apartments, LLC, Case No. 4D12-4462 (Fla. 4th DCA January 7, 2015)


Nicholson appealed a judgment following an adverse jury verdict. Nicholson was shot in the leg by a third-party while attending a party at Stoneybrook Apartments in complex’s common area. Nicholson sued Stoneybrook for negligence arguing failure to maintain its premises in a safe condition and failure to provide adequate security. Stoneybrook argued that its duties to Nicholson were very limited because Nicholson was a trespasser at the time of the incident. Stoneybrook provided trial testimony of police and management that Nicholson had been repeatedly told that she was not permitted on the Stoneybrook’s premises. Nicholson attempted to exclude any evidence of her status as a trespasser and argued that her status on the land was irrelevant because her lawsuit was founded on ordinary negligence not premises liability. The trial court permitted the jury to consider Nicholson’s status on the land in rendering its verdict. Ultimately, the jury found that the Defendant was a known trespasser on the land, but the Defendant had not committed gross negligence. Nicholson appealed and argued that the trial court erred when it allowed Stoneybrook evidence regarding Nicholson’s status as a trespasser.


The Fourth District Court of Appeals distinguished ordinary negligence from premises liability and explained that in ordinary negligence cases, “the defendant owes the plaintiff a duty of reasonable care, regardless of the relationship between the defendant and plaintiff.” However, in premises liability cases “the defendant’s duty to the plaintiff is dependent on the plaintiff’s status to the land.” Under Fla. Stat. 768.075, “in a premises liability case, the only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, and the only duty it owes to a discovered or ‘known’ trespasser is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observable by others.”

The Fourth District recognized instances where a landowner may be liable under ordinary negligence, in which case the injured party’s status on the land is irrelevant. Such scenarios result when the trespasser is injured as a result of the landowner’s active conduct as opposed to a condition of the premises. The Fourth District explained that negligent security cases logically fall under the umbrella of premises liability because they are linked to a condition on the premise. Negligent security cases concern the landowner’s failure to keep the premises safe and secure from foreseeable criminal activity.

3.     Andrew Hall v. Joshua Dean West, et al., Case No. 2D13-4138 (Fla. 2nd DCA January 7, 2015)


Hall suffered serious injuries after being struck by a speeding car driven by Joshua West. West and several friends visited the Shephard’s beach resort earlier on the day of the accident. West was intoxicated prior and throughout his time at the Shepard’s resort. Shepard’s security personnel instructed West to leave the premises, and escorted him and his friends to the parking lot. West got behind the wheel and drove off. Two hours later, and thirteen miles away, West struck the Plaintiff. Shepard argued that Hall’s complaint should be dismissed because Shepard was immune from liability under Fla. Stat. 768.075 and Hall could not prove that West was a minor or that Shepard knew that West was a habitual drinker, the exceptions to Fla. Stat. 768.075. The trial court granted Shepard’s motion and Hall appealed.


The Second District Court of Appeals affirmed the summary judgment in favor of Shepard because (1) Fla. Stat. § 768.125 bars Hall’s theory of liability, (2) Bardy v. Walt Disney World Co. was found not to be controlling, and (3) the beach resort had no general duty to prevent West from driving away.

The Second District affirmed the trial court’s ruling. The court held that Fla. Stat. § 768.125 provides that a “person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person,” except where the person willfully and unlawfully sells or furnishes alcoholic beverages to someone underage or where the person knowingly serves a person habitually addicted to alcohol. The court noted that West was of age and no evidence was presented that the resort knew whether West was habitually addicted to alcohol. Thus, Fla. Stat. § 768.125 barred Hall’s cause of action and no exceptions applied. Hall argued his claims are not related to the sale of alcohol, and that the resort was negligent in allowing West to drive away while intoxicated. However, the Second District stated that the legislature has set the boundaries of the duty owed to Hall. Shepard had no duty to Hall, but had no right or ability to stop West from driving.

The Second District then addressed Hall’s argument that Bardy created another exception to Fla. Stat. 768.125. In Bardy, an employee of Walt Disney World, was injured in an auto accident while intoxicated after one of Disney’s security guards ordered him to leave the premises under threat of arrest, despite Bardy’s protests that he was drunk. The Fifth District ruled that Disney had a duty to refrain from ordering its employee to leave its premises unless it reasonably believed that the employee could drive away safely. The Second District was found that the facts in Bardy were meaningfully different because the Plaintiff was ordered to drive away and threatened with arrest if he did not; the accident happened moments after Bardy entered his car; and the accident occurred within meters of where Bardy’s car was parked.

4.    Maria F. Leon Nucci and Henry Leon v. Target Corp. et al., Case Number: 4D14-138 (Fla. 4th DCA January 7, 2015).


Nucci, was involved in a slip and fall incident that occurred at a Target store.  Nucci made claims for personal injuries, mental anguish, and pain and suffering. Target sought to compel the production of the photographs posted to the Plaintiff’s Facebook account and provided the trial court with evidence from video surveillance showing Nucci participating in activities which called into question the true extent of the injuries Nucci was claiming. Nucci objected but the trial court overruled Nucci’s objections and ordered the production of any photographs which Nucci posted on her social media accounts as well as on her cell phone. Nucci immediately appealed and filed the Writ to the Fourth District Court of Appeals with regard to her social media postings only, and did not address the ruling as related to her cell phone.


Nucci claimed that her Facebook settings were set to private and that therefore the trial court’s order unconstitutionally invaded her right to privacy and violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712. The Fourth District Court of Appeals held that the photographs sought were reasonably calculated to lead to the discovery of admissible evidence and further stated that “there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media.”

The Fourth District also stated that the Plaintiff’s privacy interest in such posted photographs was minimal, if any.  The court stated that “before the right to privacy attaches, there must exist a legitimate expectation of privacy” and that they “agree with those cases concluding that, generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.”  The Fourth District stated that the expectation that information shared through social networks is private is unreasonable.

When addressing Nucci’s claim regarding the Stored Communications Act (S.C.A.), 18 U.S.C. §§ 2701-2712, the court ruled that the S.C.A. had no application to this case. The Court stated that “generally, the SCA prevents ‘providers’ of communication services from divulging private communications to certain entities and/or individuals.”  The act did not apply to individuals who use the communications services provided and neither does the act “preclude civil discovery of a party’s electronically stored communications which remain within the party’s control even if they are maintained by a non-party service provider.”

Very truly yours,


LEONARDO E. CONCEPCION Mike McGlinchey Authentic Jersey