News Room

News Room

Tort Update – July 15, 2016


July 15, 2016

Dear Ladies/Gentlemen:

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 Dominguez v. Publix Super Markets, Inc., 187 So. 3d 892 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016), the Third District Court of Appeal held that a supermarket used ordinary care and was not liable for negligence where a patron slipped and fell 13 seconds after a detergent spill.

            In City of Miami v. Navarro, 187 So. 3d 292 (Fla. 3d DCA 2016), the Third District Court of Appeal held that a photograph alone was not enough to demonstrate that a condition existed for a reasonable length of time to show notice of a hazard.

            In Go. v. Normil, 184 So. 3d 554 (Fla. 4th DCA 2016), reh’g denied (Feb. 15, 2016), the Fourth District Court of Appeal held that a damage cap on uneconomic damages in a medical malpractice case was unconstitutional and that evidence of state subsidized low income medical services is admissible as a collateral source.

Dominguez v. Publix Super Markets, Inc., 187 So. 3d 892 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016)


This case arose out of a slip and fall that occurred in a Publix Super Market. Ms. Dominguez slipped and fell on a patch of laundry detergent that had issued from the top of a bottle that had just fallen from a Publix store shelf.  A surveillance video camera showed that in the 8 minutes preceding, several customers traveled the aisle including one who stopped in front of the bottle, reached up and then walked out.  At the time the bottle fell, the grocery store manager was examining the shelves at the opposite end of the aisle.  Nine seconds after the bottle fell, the store manager ran to the spot and began straddling the spill.  Four seconds later, Ms. Dominguez fell into the detergent.  The entire incident occurred in 13 seconds.

Publix moved for a directed verdict, which was denied by the trial court and subsequently reversed on appeal.


On appeal, the court held that a directed verdict in favor of Publix Super Markets was proper because the entire incident occurred within 13 seconds and as such the store owner could not be found liable for negligence. In determining whether a directed verdict was proper under these facts the court had to apply the following legal standards:

    • “A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party;” and
    • “A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.”

Because the spilled detergent was an obvious condition, the only issue was whether Publix used ordinary care to maintain its premises in a reasonably safe condition. The court found that in transitory foreign substance cases, like the one at hand, the length of time the condition existed before the accident occurred was pertinent to this analysis. It found that under these circumstances, Publix could not be liable for negligence. Accordingly, the court reversed the trial courts order denying Publix’s motion for a directed verdict. The court also noted that Publix’s internal operating procedures calling for the manager to immediately block the aisle where the detergent issued did not change the result in this case. Internal safety policies do not establish the standard of care owed to a plaintiff and as such, they did not create a heightened duty of care in favor of Ms. Dominguez in this case.

City of Miami v. Navarro, 187 So. 3d 292 (Fla. 3d DCA 2016)


Ms. Navarro was injured after she tripped and fell over a raised brick while walking on a brick-paved sidewalk in the City of Miami. At trial, in an attempt to establish the City’s negligence, Ms. Navarro relied upon a color photograph of the raised brick that she argued was sufficient, by itself, to infer that the defect had existed for a significant period of time to establish the City’s constructive notice of the defect. She did not provide any testimony as to the length of time it would take for the brick to raise in the manner she claimed the photograph demonstrated.

The City moved for a directed verdict on the basis that Ms. Navarro failed to provide evidence that the sidewalk defect existed long enough that the City should have known of it. The Trial Court found that the picture was legally sufficient to withstand the directed verdict thus allowing the issue of whether the defect had existed for a sufficient length of time to go to the jury.


On appeal by the City, the court found that the photograph alone was legally insufficient to show negligence and that the trial court should have granted the City’s motion for a directed verdict. The Florida Supreme court had previously decided the issue of whether a photograph alone is legally sufficient to show negligence through the passage of time in Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla. 1982). The photograph provided by Ms. Navarro failed to satisfy the requirements of Hannewacker because it did not contain anything in and of itself that demonstrated the passage of any time relative to the raising of the brick thus forcing the jury to speculate about the duration of the condition. Accordingly, a directed verdict in favor of the City was appropriate.

Go. v. Normil, 184 So. 3d 554 (Fla. 4th DCA 2016), reh’g denied (Feb. 15, 2016)


The Fourth District Court of Appeals reversed a trial court’s decision with respect to a reduction of a jury verdict awarding roughly $28.5 million dollars in damages resulting from medical malpractice on a child. The medical malpractice suit arose when 10 month old Dens Pierre (“the Child”) sustained brain injury after he was treated by Appellant Dr. Jeanne Go and her colleague.

The Child was admitted to Bestheda Hospital in Boynton Beach. He presented with fever, vomiting, and a stiff neck. At Bestheda Hospital, Appellant and Colleague were responsible for his care. After the Child’s condition worsened, he was transferred to Miami Children’s Hospital. He suffered a stroke upon arrival.   It was discovered that the Child had both herpes and Epstein-Barr viruses. The Mother and Child brought the suit for medical malpractice.

At trial, an expert witness testified that that more likely than not, the child would not have suffered a stroke had the initial herpetic infection been treated earlier. The jury found Appellant 75% liable and awarded $28.5 million dollars in damages. The trial court capped the jury’s non-economic damage award of $6 million to $5 hundred-thousand.


On appeal, the Court entertained two issues. First, appellant argued that the trial court erred by excluding evidence of free or low-cost medical care that could be provided to the Child. At trial, Appellant sought to introduce testimony that the Child’s future medical expenses would be lowered significantly based on free or lost-cost medical care provided by the State of New York, where the child resided at the time. The court held that under Florida case law, such evidence was inadmissible as a collateral source. It specifically noted that “future availability of such programs is speculative and that allowing tortfeasors to introduce evidence of payments from the governmental programs would allow them a windfall.”

Second, the Mother and the Child argued that the cap on non-economic damages was unconstitutional. The Court agreed with the Mother and the Child holding that caps under section 766.118(2), regarding Limitations on Noneconomic Damages for Negligence of Practitioners, are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection.

We hope you find the above-referenced cases helpful and insightful. Should you have any questions with respect to the foregoing, please do not hesitate to contact the undersigned at your earliest convenience.

Very truly yours,

John Bond Atkinson, Esq.

  David Harris Jersey