News Room

News Room

Tort Update

January 30, 2019

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.


In Hayes Robertson Group, Inc. v. Cherry, 43 Fla. L. Weekly D2752 (Fla. 3d DCA Dec. 12, 2018), the Third District Court of Appeals affirmed the final judgment of the trial court on liability and determining the standard to use for an expert witness’s qualifications. This case supports that a trial court has broad discretion to rule on the range of subjects in which a particular proffered expert may testify. The appellate court also affirmed the trial court’s denial of the Defendant’s motion for attorney’s fees as the Proposal for Settlement (PFS) offers were considered nominal and not made in good faith.

In Salazar-Abreu & Salazar v. Walt Disney Parks & Resorts U.S., Inc., 44 Fla. L. Weekly D119 (Fla. 5th DCA Dec. 28, 2018), the Fifth District Court of Appeals reversed the trial court’s order granting Disney’s (Defendant) motion for summary judgment based on judicial estoppel. Florida’s elements of judicial estoppel differ from the test applied within the Eleventh Circuit and include the additional element of mutuality of the parties and prejudice to the adverse party. Therefore, since all of the elements of the Florida standard were not met, the appellate court reversed and remanded for rehearing utilizing the correct standard.

In Little v. Davis, 43 Fla. L. Weekly D2792 (Fla. 1st DCA Dec. 14, 2018), the First District Court of Appeals reversed an order granting a new trial on damages for the Plaintiff, which was solely based on a single hearsay question from defense counsel on cross examination of the Plaintiff. The standard for determining whether a new trial should be granted based on unpreserved error for attorney misconduct is pursuant to the four-prong Murphy test and all elements must be met. Therefore, the appellate court determined that the trial court abused its discretion since the record did not support the Murphy test.

Hayes Robertson Group, Inc. v. Cherry, 43 Fla. L. Weekly D2752 (Fla. 3d DCA Dec. 12, 2018)

This Third District Court of Appeals matter arose from a wrongful death and personal injury claim arising from a vehicular collision by an alcohol-impaired, off-duty employee of a restaurant. In this case, the intoxicated driver struck two couples from behind as they were riding mopeds in Key West, Florida. One of the victims died as a result of their injuries. Prior to the accident, the intoxicated driver had been drinking at his place of employment, where he received an employee discount while off-duty.

The Plaintiffs’ brought a wrongful death and personal injury suit against the driver along with the restaurant group that he worked for based on (1) liability of an employer which permits its employee to leave business premises intoxicated as described in ¬Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d 914 (Fla. 4th DCA 1993) and (2) an exception to the Florida Dram Shop Act, section 768.125, Florida Statutes (2014), permitting a claim of liability for personal injuries arising out of an incident where a person, “knowingly serves a person habitually addicted to the use of any or all alcoholic beverages.” During the trial, the court determined that the Plaintiff’s expert was not qualified to answer whether the driver was “habitually addicted to alcohol” and the jury returned a verdict for the Defense.

Additionally, after trial the Defense moved for attorney’s fees pursuant to their proposal for settlement (PFS) in which the first two were for $500 per person and then subsequently the last PFS was offered at $100 per person. This motion was denied as the trial court concluded the PFS offers were not made in good faith.


The Plaintiffs’ appealed the adverse jury verdict and the denial of their motion for a new trial and final judgment. The Defense appealed their denied motion for attorney’s fees pursuant to their proposal for settlement.

A. Final Judgment on Liability

The main issue on liability concerns the trial court ruling that the Plaintiff’s expert was not qualified to express an admissible opinion on habitual addiction to alcohol.

First, the Plaintiffs’ claimed that the court erred in applying the Daubert standard versus the Frye standard in assessing the Plaintiffs’ expert testimony regarding the driver’s alleged habitual addiction to alcohol. At trial the Plaintiff’s expert, a forensic toxicologist, was retained to give his opinion as to (1) retrograde extrapolation of blood alcohol content (BAC) levels and (2) whether the driver was habitually addicted to alcohol. The first topic of BAC was not at issue and was stipulated by the parties, however the second issue was the cause of the inquiry into the Plaintiff’s’ expert’s experience and qualifications. Some of the issues discussed by the trial court regarding the expert’s qualifications include that: his summary did not include expertise on habitual addiction, he only referenced one noted authority (medical toxicology textbook), and the expert admitted that he only relied upon one of the multiple criteria in the textbook to diagnose alcoholism. The expert also did not review the driver’s psychiatry medical records. This analysis ultimately led to the trial court granting the motion in limine on the expert’s testimony on the second issue of habitual alcoholism, but the decision stated it did not restrict its ruling to be specifically on Daubert.

Two days prior to oral arguments on appeal and after the briefs were already submitted, the Florida Supreme Court reaffirmed that Frye was the standard rather than Daubert as the appropriate test for expert witnesses. See DeLisle v. Crane Co., 43 Fla. L. Weekly S459 (Fla., Oct. 15, 2018). DeLisle also reaffirmed that the judge has broad discretion in ruling on a range of subjects on which a particular expert may provide testimony and that the ruling will be upheld absent clear error.

The appellate court went through prior case law and Webster definitions of: “addiction,” “frequent indulgence,” and “habitual drunkard.” Relying on the definition of habitual drunkard in Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042 (Fla. 1991) (“Ellis II”), which stated that circumstantial evidence that a person served a substantial number of drinks to another on multiple occasions, may be used to properly establish that a vendor knew that the drinker was a habitual drunkard. Therefore, since the jury heard the testimony of the driver’s ex-wife, bartender on duty, the police officer who arrested the driver at the crash scene, other employees’ testimony on the driver’s consumption and other factors comprised of the ability to make a determination of the element through this circumstantial evidence. This allowed the question to be determined by the jury and affirmed that the trial court did not abuse its discretion in excluding the expert’s proffered testimony under either Daubert or Frye.

B. Order Denying Attorney’s Fees

The second issue regarding the Plaintiffs’ payment of the Defense attorney’s fees was bifurcated from the liability issues at trial. The issue arose from three different PFS offers in three different points of the pretrial proceedings.

(1) First the Defense offered a PFS $500.00 per Plaintiff;
(2) Then the Defense offered the same PFS of $500.00 per Plaintiff; and
(3) Last the Defense offered a reduced PFS of $100.00 per Plaintiff.

The Plaintiffs’ alleged that these offers did not bear a reasonable relationship to the damages from the accident which included severe injuries and a death. The trial court determined that the Plaintiffs’ claims had some merit causing the Defense to face some exposure. Therefore, they determined these nominal PFS offers were not made in good faith.

Additionally, each PFS included a release which the trial court found to be unclear and ambiguous as to which individuals they released from the action. The Plaintiffs’ alleged that they could be construed to also release the driver rather than solely the Restaurant Group.

The question on appeal was whether the Defendant Restaurant Group had a reasonable basis at the time of the PFS offers to conclude that its exposure was only nominal. The appellate court described how there was ample circumstantial evidence that the driver was a habitually addicted alcoholic, which would allow the liability issue to be determined by the jury, leaving no guarantee that the jury verdict would be for the Defense. If the Defense had lost on liability, then compensatory damages for these injuries and a death would be far greater than a nominal amount. The appellate court cited Event Services America, Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005), which determined that there is no abuse of trial court discretion in the trial court’s assessment of nominal offers, if at the time of the offer the defendant “had at least some exposure.” Upon this determination the appellate court did not move on to discuss the ambiguous releases and denied the Defense motion for attorney’s fees for their nominal PFS.

Salazar-Abreu & Salazar v. Walt Disney Parks & Resorts U.S., Inc., 44 Fla. L. Weekly D119 (Fla. 5th DCA Dec. 28, 2018)

This Fifth District Court of Appeals matter arose from a final summary judgment entered in favor of Disney (Defendant) based on judicial estoppel in a slip and fall case in Epcot’s parking lot. Here, the Plaintiff failed to disclose this slip and fall lawsuit as a potential asset in separate bankruptcy proceedings, prompting Disney to move for summary judgment in the negligence action based on judicial estoppel from the bankruptcy action. The trial court incorrectly applied the Eleventh Circuit standard for judicial estoppel and granted the motion for summary judgment, and the 5th DCA reversed the trial court’s decision and applied the Florida standard for judicial estoppel.

The Plaintiff filed his claims arising from a slip and fall after he already had a preexisting Chapter 13 bankruptcy petition pending before the United States Bankruptcy Court for the Southern District of Florida. The issue focuses on the continuing duty of the debtor in bankruptcy to disclose assets, including new causes of action to the bankruptcy court after the petition is filed. It was undisputed that the Plaintiff failed to disclose the existence of his lawsuit against Disney to the bankruptcy court. However, while the bankruptcy court confirmed a Chapter 13 plan, it later dismissed the case without discharge due to the Plaintiff’s failure to make payments under the plan. This put the parties back in the same positions they were in prior to the filing of the bankruptcy petition.

Based on the Plaintiff’s failure to disclose the lawsuit against Disney as a potential asset in the bankruptcy case, Disney’s motion for summary judgment based on judicial estoppel was granted by the trial court.


On appeal, the Plaintiffs alleged that the trial court used the incorrect standard for judicial estoppel, which is a remedy used to prevent litigants from taking inconsistent positions in separate proceedings. The Florida standard has four elements:

(1) a claim or position successfully maintained in a former action or judicial proceeding;
(2) bars a party from making a totally inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial proceeding;
(3) to the prejudice of the adverse party; and
(4) where the parties are the same in both actions, subject to the “special fairness and policy considerations” exception to the mutuality requirement.

These elements of the Florida standard differ from the Federal standard as they require mutuality of the parties. However, when there is no mutuality of the parties the Eleventh Circuit has created its own standard with two elements:

(1) the party took an inconsistent position under oath in a separate proceeding; and
(2) these inconsistent positions were “calculated to make a mockery of the judicial system.”

The appellate court determined that the trial court only concluded that the Plaintiff’s made inconsistent statements under oath in two different proceedings and that these inconsistent statements were calculated to make a mockery of the judicial system. The appellate court then explained how the trial court failed to follow the Florida standard for judicial estoppel as they did not determine whether the inconsistent claim was previously successful, whether the adverse party was prejudiced, and whether there was mutuality of the parties. Therefore, since every element of the Florida rule must be applied, the trial court was in error and the appellate court reversed and remanded for rehearing with the correct standard.

Little v. Davis, 43 Fla. L. Weekly D2792 (Fla. 1st DCA Dec. 14, 2018)

The First District Court of Appeals case involved a car accident where the Plaintiff, Joann Davis was at a stop sign and Defendant, Marion Little rear-ended her bumper at less than 5mph. Nine days later, the Plaintiff asserted she had pain in her left arm and eight months later she filed suit determining that she suffered from permanent injuries. Liability is not at issue in this case as the Defense admitted that she caused the incident, but she disputed that Davis sustained permanent injury during the low-speed collision. The main issue on appeal concerns a single question asked by Defense counsel on cross-examination of the Plaintiff, concerning whether she suffered from a permanent injury. The Plaintiff alleged this question by Defense counsel was so prejudicial that it affected the fairness, integrity and/or public reputation of the judicial process and that she was entitled to a new trial.

The Plaintiff provided two physicians including a neurological surgeon who opined her injuries were caused by the accident. In contrast, the Defense provided a biomechanical engineer who opined that it was “physically impossible” for the Plaintiff to suffer from her alleged injuries as a result of the accident. Defense counsel also provided the statement from the doctor who performed the CME (compulsory medical examination) of the Plaintiff who stated that her alleged pain complaints could not be explained and was more in line with malingering. Additionally, when the Defense counsel crossed the Plaintiff, the jury was notified of the Plaintiff’s medical records for the past 20 years which included previous car accidents.

The main issue arose when Defense counsel asked:

DEFENSE: Okay. Isn’t it true that as of today, you no longer have any problems with your left arm?
DAVIS: I still have problems with my left arm.
DEFENSE: You still do?
DEFENSE: You’ve lived with your boyfriend, William McNealy for several years; isn’t that right?
DAVIS: Yeah. Three years.
DEFENSE: Three years? Okay. He lived with you at the time of the accident?
DEFENSE: Okay. If your arm’s still injured, how come Mr. Nealy testified that you don’t complain to him about problems with your left arm anymore?

PLAINTIFF’S COUNSEL: The objection is speculation. She’s asking why does he think something.
COURT: Restate the question.
DEFENSE: I said if you were—if your left arm is still injured, how come Mr. Nealy testified that you don’t complain to him about problems with your arm anymore?
DAVIS: Because I —

PLAINTIFF’S COUNSEL: The objection is it’s hearsay and it requires her to speculate on the state of mind of another witness that’s not even in evidence.
COURT: Sustained.
DEFENSE: Mr. Nealy wouldn’t make anything up about you, would he?
COURT: Sustained.
DEFENSE: Isn’t it true, Ms. Davis, that the problems that you’re having now are simply the same ones you have had for 20 years?

Afterward the Jury returned a verdict in favor of the Plaintiff, finding that the Defendant had caused the accident, and that the Plaintiff had suffered an injury from the accident and they awarded damages equaling the Plaintiff’s past medical bills. However, the jury also found that the Plaintiff did not suffer from a permanent injury “within a reasonable degree of medical probability” and therefore did not award damages for future pain and suffering.

The Plaintiff then moved for a new trial on damages and argued that the jury’s verdict of no permanency was contrary to the weight of the evidence presented and asserted and that the jury was misled by Defense counsel’s line of questioning regarding her boyfriend on cross examination. She alleged that these questions were so prejudicial and incurable that it warranted a new trial.

The trial court agreed with the Plaintiff and the Judge stated on the record for the appellate court that as a first-hand witness to the testimony and examinations of the Plaintiff that the Plaintiff was an uncommunicative witness (in a non-hostile way) and (for whatever reason) had difficulty expressing herself on direct and cross examinations. The Judge also stated that due to the Plaintiff’s demeanor, the jury must have believed the Plaintiff’s answers on cross were the truth, because she did not disagree with anything Defense counsel asked. The Judge continued to explain that he was bothered by the question and felt the jury would easily believe that the Plaintiff must have told the boyfriend that she wasn’t hurt. The Judge then granted a new trial on damages due to the single hearsay question, because the Judge found that question to be highly prejudicial.


On appeal, the court began with the presumption that the trial court properly exercised its discretion and that it would not disturb the ruling absent a clear abuse of discretion. This is in part due to the fact that a trial judge has the opportunity to observe the witnesses and consider the evidence live, rather than simply read a cold transcript of what transpired. However, the appellate court also stated that the order granting a new trial still has to be supported by the record.

One issue with the instruction for a new trial is that the alleged error in this case was not properly preserved. Proper preservation requires that after an objection, the party must timely move for a mistrial, and here the Plaintiff never moved for a mistrial. To determine whether a new trial should be granted based on unpreserved error in closing argument the Florida Supreme Court laid out four elements to be met under Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000), which has also been extended to instances of attorney misconduct. The four elements of the Murphy test are the movant must establish that the challenged argument was:

(1) Improper;
(2) Harmful;
(3) Incurable; and
(4) So damaging to the fairness of trial that the public’s interest in our system of justice requires a new trial.

The appellate court then analyzed the record under the four-part Murphy test. The first part of the test is met as the question is considered improper as it misrepresented the evidence and introduced hearsay testimony from a non-testifying witness.

The second part of the test to determine if it was harmful is tested by considering if the verdict reached could not have resulted without such conduct. However, the trial court failed to meet this prong as there was plenty of evidence that would allow for the jury to reach their verdict. There were physician’s and expert’s statements that supported the verdict along with medical records for the previous 20 years which showed an extensive history of left-arm numbness and pain. Accordingly, the appellate court determined that the Defense counsel’s conduct was not considered harmful under Murphy.

The appellate court then moved on to discuss the third part of incurability, and stated that there is no evidence that a statement to the jury to disregard the hearsay question would not have sufficed, making it curable. Last, the appellate court described how Defense counsel’s one single hearsay question does not rise to the level of unfairness to require a new trial under the last prong of the test and stated that the category of attorney misconduct which would meet this prong is very limited.

Therefore, since the trial court failed to apply the four-part Murphy test in ruling on the motion for a new trial and because the Murphy test cannot be met on the record, the appellate court determined that the trial court abused its discretion. The case was then reversed and remanded.

Very truly yours,