News Room
Tort Update
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September 6, 2018
Dear Ladies/Gentlemen:
This month we would like to share with you some recent opinions of the Florida District Courts of Appeals which may be of interest to you.
EXECUTIVE SUMMARY
In Competitive Softball Promotions, Inc. v. Yasser Ayub, 43 Fla. L. Weekly D833 (Fla. 3rd DCA April 18, 2018), the Third District Court of Appeals reversed a court order denying a directed verdict for the defendant when the evidence showed that the defendant had no control over the premises where the plaintiff suffered injury. When a plaintiff alleges that a defendant breached a duty to protect him or her as an invitee, the plaintiff must show either that the defendant had the right to control the access to the property where the plaintiff was injured or show that the defendant created the conditions that led to the plaintiff’s injuries.
In Garofalo et al v. Proskauer Rose, 43 Fla. L. Weekly D1718 (Fla. 4th DCA August 1, 2018), the Fourth District Court of Appeals affirmed the trial court’s dismissal with prejudice of a complaint which alleged that a law firm committed fraudulent omissions by not correcting its opinion letter but a lawsuit was brought more than 12 years after the opinion letter had been sent. Fraudulent allegations regarding a law firm’s opinion letter will be barred if plaintiff files a lawsuit more than 12 years after the opinion letter is sent to the client and there is no other contact between the law firm and the client regarding the subject of the opinion letter. The Fourth District Court of Appeals also upheld the constitutionality of Florida’s statute of repose.
In Trugreen Landcare v. LaCapra, 43 Fla. L. Weekly D2027 (Fla. 5th DCA August 31, 2018), the Fifth District Court of Appeals reversed an order denying a directed verdict for the defendant after it found that a palm tree planter square did not constitute an open and notorious dangerous condition, and therefore, the defendant had no duty to maintain the planter square in a reasonable safe condition.
Competitive Softball Promotions, Inc. v. Yasser Ayub, 43 Fla. L. Weekly D833 (Fla. 3rd DCA April 18, 2018)FACTS AND PROCEDURAL HISTORY
This matter arises from a fight in a common area where the Defendant had no control over. The Plaintiff was a member of a softball team that participated in a softball tournament organized by the Defendant. The Defendant rented the softball fields of a public park owned by the county. The park had common areas open to the public outside the rented fields and dugouts. The Plaintiff was involved and injured during a fight that occurred in the common areas.
The Plaintiff brought a premises liability action against the Defendant alleging that Defendant breached its duty to keep its invitees safe by failing to provide adequate security during the tournament. The Defendant argued that it did not have control over the common areas but the jury returned a verdict in favor of the Plaintiff. After the trial court entered a final judgment, the Defendant filed a renewed motion for directed verdict and new trial. The trial court denied the motion. The Defendant appealed.
APPELLATE COURT DECISION
On appeal, the court explained that the duty to protect invitees from third parties is connected to a defendant’s control over the premises where the alleged injury occurred. Thus, if a plaintiff cannot demonstrate that the defendant controlled such premises, then the defendant cannot be held liable for the plaintiff’s injuries.
The Plaintiff claimed that the Defendant used the common areas adjacent to the rented fields to collect fees from the team members and post tournament results. The court explained that control over the premises is demonstrated when the person has the right to control access of the property. In this case, the Defendant’s use of the common areas for collecting fees and posting results was only a “limited use” of the property that did not show that Defendant had the authority to control the access to the common areas. Thus, the Defendant had no duty to protect the Plaintiff in said common areas because it did not have the necessary control over them.
Alternatively, the Plaintiff claimed that it was foreseeable that there could be a fight outside the premises that Defendant controlled, and therefore, the Defendant had a duty to secure the common areas. The court reasoned that a duty can arise when the defendant’s conduct creates the conditions that cause injuries to the plaintiff and, in those cases, the duty extends to the foreseeable zone of risk created by defendant’s conduct. However, in this case, there was no evidence showing that the Defendant created the conditions that led to the fight. Thus, the Defendant had no duty to secure the common areas where the Plaintiff was injured.
Based on the arguments above, the Third District Court of Appeals reversed the trial court’s order denying the Defendant’s motion for directed verdict and remanded the case with instructions to have directed verdict entered in favor of the Defendant.
Garofalo et al v. Proskauer Rose, 43 Fla. L. Weekly D1718 (Fla. 4th DCA August 1, 2018)
FACTS AND PROCEDURAL HISTORY
This matter arises from a law firm’s tax shelter opinion letter that was sent to the Plaintiffs. After meeting with advisors and pitching a tax shelter strategy, the Plaintiffs retained a law firm to serve as an independent opinion on the validity of the tax shelter strategy. On October 8, 2002, the law firm delivered a letter to the plaintiffs confirming validity of the strategy and assured legal support if there was a dispute with the IRS.
On June 22, 2016, the Plaintiffs brought a lawsuit against the law firm claiming, among other things, that the law firm conspired with the advisors to lure them into participating in the tax shelter strategy, which the Plaintiffs contented to be fraudulent. The law firm moved to dismiss the complaint based on Florida’s statute of repose alleging it had no contact with the Plaintiffs after delivering the October 8, 2002 opinion letter. The Plaintiffs argued that the law firm had a continuing duty to disclose errors in its opinion and failure to make corrective disclosures were fraudulent omissions. Plaintiffs conceded that the purported fraudulent acts and omissions were not dated, but claimed that one of the omissions was the law firm’s failure to advise them about its lack of independence, which prevented them from participating in a 2005 IRS settlement opportunity. The Plaintiffs were assessed penalties and interests by the IRS. Plaintiffs also claimed that the repose period should be measured from the last fraudulent omission, not from the date the opinion letter was delivered.
The trial court disagreed with Plaintiff’s arguments and granted the law firm’s motion to dismiss. The plaintiffs appealed.
APPELLATE COURT DECISION
On appeal, the court was tasked with determining whether the trial court misapplied the statute of repose. In Florida, the statue of repose mandates that an action for fraud must be brought within 12 years after the alleged commission of fraud, regardless of when fraud should have been discovered. The court explained that the statute of repose bars action by setting a time limit within which an action must be filed as measured from a specific act, after which time the cause of action is extinguished. The appellate court advised that the statute of repose may be constitutionally applied to bar claims even when the cause of action does not accrue until after the period of repose has expired. Thus, the defendant’s last act or omission triggers the statute of repose.
The court also explained that fraud based on non-disclosure of material information exists only where there is a duty to make such disclosure. The duty arises when one party has information which the other party has a right to know based on a fiduciary or other relationship of trust between the parties. The Plaintiffs relied on McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976), in which a mother retained a lawyer to draft a will devising the mother’s entire estate to her daughter. After the mother remarried, the lawyer advised her that the will did not need to be redrafted. But after the mother died, the mother’s husband received a portion of the estate and the decedent’s daughter sued. The Plaintiffs argued that the October 8, 2002 letter was analogous to the will in McAbee because just as the will anticipated a death, the opinion letter anticipated an IRS audit. The court explained that the McAbee holding was limited to whether the complaint stated a cause of action because the daughter did not retain the lawyer and whether the action was barred by the statute of limitations. Thus, since McAbee did not deal with the statute of repose, it was not persuasive in deciding the current case.
The court held that Plaintiff’s theory regarding the law firm’s never ending duty to make corrective disclosure would cause the statute of repose to never expire. This interpretation would defeat the statute of repose’s very purpose. Therefore, since the law firm delivered the opinion letter in October 8, 2002; the law firm had no other communication with the Plaintiffs; and the law firm was not informed of the 2005 IRS settlement opportunity, the statute of repose had already expired. The trial court’s dismissal was affirmed.
Plaintiffs also argued that Florida’ statute of repose was unconstitutional because it prohibited fraud actions before accrual. The court reasoned that the Florida Supreme Court has upheld the constitutionality of other statutes of repose. The court further explained that although the statute of repose may cause injustice by eliminating a valid cause of action, it addresses the countervailing concern of defending against a lawsuit many years after the act at issue occurred. Therefore, Florida’s fraud statute of repose was constitutional.
Trugreen Landcare v. LaCapra, 43 Fla. L. Weekly D2027 (Fla. 5th DCA August 31, 2018)
FACTS AND PROCEDURAL HISTORY
This matter arises from a trip and fall while the plaintiff was taking a shortcut across a planter square. The Plaintiff lost his footing and injured himself while cutting across a palm tree planter square, which allegedly had a hidden depression in it. The Plaintiff brought suit against the landscaper claiming negligent maintenance, landscape, and inspection of the planter square. At trial, the jury found both parties negligent and apportioned 50% liability on each. The Plaintiff was awarded $400,000 in damages. The landscaper moved for a directed verdict, which was denied. The landscaper appealed.
In support of its motion for directed verdict, the landscaper argued that it owed no duty to the Plaintiff to keep the landscaped areas in a safe condition or to warn of any dangerous condition because landscaped areas are not generally dangerous conditions and any change in surface level was open and obvious. The landscaper also pointed out the fact that Plaintiff chose not to walk on the sidewalk but walked through the planter square which Plaintiff should have known could present danger. Plaintiff responded that the open and notorious doctrine did not apply to artificial turf and that the landscaper should have known that pedestrians would walk across the palm tree planter square.
APPELLATE COURT DECISION
On appeal, the court explained that an owner or possessor of land is not liable for injuries that an invitee suffered due to dangerous conditions on the premises, unless the owner or possessor should have foreseen the harm despite the fact that the dangerous condition was open and obvious. The open and obvious danger doctrine may discharge the owner or possessor of the duty to warn, but it does not discharge of the duty to maintain the premises in a reasonable safe condition. Whether the defendant breached the duty to keep the premises in a reasonable safe condition is for the jury to determine. However, some conditions are considered so obvious and not inherently dangerous that they do not support liability on the defendant, as a matter of law, for failing to maintain premises in a reasonable safe condition. The court also explained that landscaping features are not generally dangerous conditions.
The court found that the facts of this case were similar to the ones in Taylor V. Univ. City Prop. Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001), where the plaintiff tripped on the metal-rim edge of a palm tree square. In Taylor, the court found that a palm tree planter square was not inherently dangerous, and therefore, there was no liability for failure to warn or for failure to maintain the planter square in a reasonably safe condition. The court reasoned that anyone who walks into a plater containing greener and/or flowers and dirt is held to know that this is a hazard to walking, even if the hazard is not observable.
The Plaintiff in this case attempted to distinguish Taylor by claiming that the depression in the artificial turf upon which he tripped was hidden. But the court held that Plaintiff was missing the point of Taylor, which was that a planter square was not hidden and presented an open and notorious danger in and of itself. The court also found that there was no evidence of continuous and obvious use of the planter square as a pedestrian shortcut and, in fact, there was no need for a shortcut path because the planter square was surrounded by the sidewalk on all sides. Therefore, the court concluded the palm tree planter square did not constitute a dangerous condition as a matter of law, reversing the order denying the landscaper’s motion for directed verdict.
We hope that you found the aforementioned cases both helpful and insightful. Thank you for the opportunity to share these recent case opinions with you.
Very truly yours,
JOHN BOND ATKINSON
MARIA-GRACIA DIAZ
JBA/MGD:ae