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Court Ordered Disclosure of Cell Phone Names Violates 5th Amendment * Recovery for Slip and Fall Requires More Than Allegation * Pedestrian at Fault for Collision with Vehicle

February 16, 2016


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

In Restrepo v. Carrera, the Third District Court concluded that requiring a party to disclose cell phone numbers and names violated that party’s Fifth Amendment rights and therefore a departure of the law.

In Perez-Rios v. The Graham Companies, the Third District Court found that in order to prevail on a slip and fall case it is not enough that the Plaintiff simply fell on someone else’s property.

In Panzera v. O’Neal and Publix, the Second District Court addressed the issue of when a pedestrian might be at fault for a collision with a vehicle.

Restrepo v. Carrera-2016WL231955, Third DCA, January 20, 2016 (Civil Procedure –discovery-cell phone) (subject to review)

Facts & Procedural History

The trial court ordered Restrepo “to provide cell phone numbers and/or names of providers used during the six (6) hour before the time of the crash and the six (6) hour period after the crash….”  Restrepo petitioned for the District Court of Appeal to review the trial court’s order alleging such order violated her Fifth Amendment rights.

Appellate Proceeding

The appellate court found that the order directing Restrepo to reveal information regarding her cell phone number and her cell phone carrier violated Restrepo’s Fifth Amendment rights and constituted a departure from the essential requirements of law from which petitioner had no adequate remedy on appeal, thus requiring the order to be quashed.

Perez-Rios v. The Graham Co.-2016WL231912, Third DCA, January 20, 2016 (Torts-Premise liability) (subject to review)

Facts & Procedural History

Perez-Rios alleged that she slipped and fell on a four inch step leading from the pavement to a building owned by The Graham Company.  During her deposition she testified that it was a clear day.  The step was plainly visible, and the steps were painted different colors.  Photographs provided showed that there was no particular defect, no evidence of a foreign object on the step, uneven wear and tear, inadequate lighting, or wet and slippery conditions.  When directly asked, Perez-Rios could not identify any defects on the steps or provide an expert opinion to establish a defect.  The Graham Company moved for summary judgment and the trial court granted same.  Perez-Rios appealed.

Appellate Proceeding

The appellate court affirmed summary judgment in favor of The Graham Company.  In deciding this, the appellate court found that there simply was no evidence in the record which might have created a disputed issue of fact regarding any defect in the step which could be resolved by a jury.  It was simply not enough to advance that a slip and fall had occurred.  Further, stating that “summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.”  And, “[a] party should not be put to the expense of going through a trial where the only possible result will be a directed verdict.”  In this case, the evidence was not sufficient to justify trial.  Therefore, the summary judgment was proper.

Panzera v. O’Neal and Publix-2015WL7749965, Second DCA, December 2, 2105 (Wrongful Death-Motion for Summary Judgment-speculative issues) (subject to review)

Facts & Procedural History

Panzera was fatally injured when he was hit by a Publix truck driver in the early morning hours of May 29, 2011.  It was undisputed that Panzera climbed a fence at 3.a.m, wearing a dark shirt, and entered an unlighted multi lane interstate where he was struck by the truck driven by O’Neal.  A deceleration report, automatically generated by the truck, revealed that the truck was going 5 mph below the speed limit, when it began to decelerate.  O’Neal testified that he applied his breaks strongly to avoid the collision.  The testimony was corroborated by Officer Jennifer Head, Sergeant Herbert Head, and Corporal James Wilmeth of the Florida Highway Patrol.  Corporal Wilmeth’s report concluded that Panzera was the sole cause of the collision.

O’Neal and Publix moved for summary judgment.  In response, the Estate offered the testimony of Panzera’s parents which was based on their own independent review of the scene post-accident where they opined that there was more that the driver could have done to avoid the crash.  Panzera failed to submit any evidence to refute the expert testimony and conclusions of the Florida Highway Patrol.  The trial court granted summary judgment in favor of O’Neal and Publix.  Panzera appealed.

Appellate Proceeding

The appellate court found that Panzera’s family testimony based on their own personal views of the accident scene post-accident was simply inadmissible and unreliable testimony as neither were trained in accident reconstruction.  Therefore, the testimony could not be used to refute the admissible expert testimony and conclusions of the Florida Highway Patrol that Panzera was the sole proximate cause of the injury.  Accordingly, the court affirmed judgment in favor of Publix and O’Neal.

Thank you for the opportunity to share this update with you.



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