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Client Update – Florida Torts Update

By John Bond Atkinson, Tiffany A. Bustamante, and Mike Isalgue


De L.A. v. Winn-Dixie Stores, Inc., 46 Fla. L. Weekly D1986 (Fla. 3d DCA September 8, 2021)
In a slip and fall case, trial court did not err by entering summary judgment in favor of defendant where plaintiff failed to establish that defendant had actual or constructive notice of condition. The fact that discovery was ongoing does not change result where counsel did not file written motion for continuance of summary judgment hearing or affidavit in opposition to summary judgment based on need to conduct additional discovery.
Rodgers v. City of Gainesville, case number 01-2016-CA-000659, in the Circuit Court for the Eighth Judicial Circuit in and for Alachua County, Florida.

A Florida state court remitted a $120 million jury award for a man who was permanently paralyzed in a car crash with a city of Gainesville employee, finding the amount exceeds similar judgments and does not sufficiently reflect the evidence of his pain and suffering.

Alvarez v. Acosta, 46 Fla. L. Weekly D1986 (Fla. 3d DCA September 8, 2021)
In a case involving a fatal motor-vehicle accident, trial court did not abuse its discretion by denying motion for new trial in which plaintiff asserted that verdict was contrary to manifest weight of evidence, where conflicting evidence was presented at trial and jury’s verdict was product of weighing that evidence to resolve conflicts.
De L.A. v. Winn-Dixie Stores, Inc., 46 Fla. L. Weekly D1986 (Fla. 3d DCA September 8, 2021
In De Los Angeles, Maria Mesa De Los Angeles, the Plaintiff filed a negligence action against Winn-Dixie Stores, Inc., alleging that she fell and suffered an injury after slipping on liquid detergent on the floor in an aisle containing laundry detergent products.
When deposed, Ms. De Los Angeles testified that the liquid detergent she slipped on was “clear,” “slippery,” “light blue,” and “not dirty,” and that there were no footprints in the detergent. She had no knowledge how long the liquid detergent had been on the floor before she fell, but testified it must have been there for at least three to five minutes because that’s how long she was in the aisle alone before the incident occurred. She also testified she had no knowledge whether any Winn-Dixie employees were aware the liquid was on the floor. An open bottle of laundry detergent was found on the shelf near where she fell; the cap was next to the bottle, and the bottle was standing upright and was not leaking or dripping. According to the deposition of Winn-Dixie store manager had checked that area of the store five minutes before the incident occurred.
Winn-Dixie ultimately moved for summary judgment. The trial court granted Winn-Dixie’s motion on the matter. Ms. De Los Angeles appealed final summary judgment entered in favor of Winn-Dixie. The Third DCA affirmed the trial court’s decision, noting no genuine issues of material fact and the undisputed material facts, viewed in a light most favorable to plaintiff, failed to establish Winn-Dixie had actual or constructive notice of the condition. The Court punctuated its affirmation by citing the relevant statute, Florida Statute § 768.0755(1)(a)-(b), which provides in pertinent part:
(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

a. The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
b. The condition occurred with regularity and was therefore foreseeable.

Ms. De Los Angeles additionally argued that the trial court erred in proceeding with the summary judgment because discovery was ongoing, and that De Los Angeles sought to depose a Winn-Dixie witness and compel the production of additional surveillance video. However, Ms. De Los Angeles filed neither a written motion for continuance of the summary judgment hearing, (as permitted by Fla. R. Civ. P. 1.460) nor an affidavit in opposition to summary judgment based on the need to conduct additional discovery [as permitted by Fla. R. Civ. P. 1.510(f)]. Furthermore, the Court noted that Ms. De Los Angeles was in possession of the Winn-Dixie witness’ name a year before the summary judgment hearing. Given these facts, the Court found no abuse of discretion by trial court in in proceeding with the summary judgment.
In summation, it is especially crucial for a plaintiff to present evidence, be it actual or constructive, that a store was or should have been on notice of a dangerous condition on their premises. In addition, when confronted with a motion for Summary Judgment, the Florida Rules of Civil Procedure permit myriad methods to the adverse party should they require additional time for discovery purposes, or even in general, so long as good cause is shown.
JACOB T. RODGERS v. CITY OF GAINESVILLE, Case No. 01-2016-CA-000659 (Fla. 5th DCA, September 10, 2021)

In spring 2021, Rodgers made headlines for what was perceived by some to be a shockingly large award from a jury given the facts of the case. Following the verdict, the City of Gainesville moved for a new trail or, in the alternative, moved for remittitur.
This case involved Plaintiff Jacob Rodgers’s claim for significant and permanent injuries related to a motor vehicle accident that occurred on October 7, 2015. The accident left Mr. Rodgers, who was twenty years old at the time of the accident, paralyzed from the chest down and confined to using a wheelchair for the rest of his life. At trial there was testimony from multiple witnesses regarding the severity of the injuries sustained by Mr. Rodgers, and how his paralysis from those injuries affected his life. Witnesses included Mr. Rodgers’s mother and brother, who testified about the horrific events following the crash, as well as the days and months after the crash and the extent of Mr. Rodgers’s rehabilitation following this crash. There was also testimony that Mr. Rodgers completed his schooling, returned to work immediately after completing his initial course of rehabilitation, has continuously worked since that time, and had recently married.
After deliberating for over 6 hours, the jury returned a verdict for Plaintiff, finding that the negligence of William Stormant, a Gainesville Regional Utilities employee at the time of the accident, was the sole legal cause of loss, injury, and damages to Jacob Rodgers. The jury awarded Plaintiff $484,181.24 for past medical expenses, $4,200,000.00 for future medical expenses, $635,000.00 for loss of household services, $15,000,000.00 for past non-economic damages, and $99,860,818.76 for future non-economic damages. The total economic damages award was $5,319,181.24, and total non-economic damages award was $114,860,818.76.
In Florida, not wearing a seat belt may be considered as evidence of comparative negligence in any civil action. Fla. Stat. § 316.614(10) (2021). In order to prove comparative negligence, the defendant must show that the plaintiff’s failure to use the seatbelt caused or contributed substantially to the plaintiff’s damages. Here, Defendant asserted that the jury must have ignored the Defendant’s evidence at trial, or were misled by plaintiff counsel’s comments, because the jury found Defendant’s employee Mr. Stormant was 100% liable for this accident even though Mr. Rodgers was not wearing a seat belt at the time of the accident. The Court rejected this argument and found that there was sufficient evidence presented to support the jury’s finding. Notably, the evidence included Mr. Stormant’s testimony that he ran the stop sign and that he was responsible for the accident; Mr. Blackwell’s (the driver of the vehicle Mr. Rodgers was in) testimony that he was driving at the same rate of speed as traffic; and testimony that Mr. Blackwell was not injured and that he was also not wearing his seatbelt.
Given the above, the Motion for New Trial was denied based upon the Court’s analysis, that the disputed issues of fact supported the jury’s determination, and the acts complained of did not threaten the integrity of the jury or the verdict.
Florida law provides that after a jury awards damages, “it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” § 768.74, Fla. Stat. (2021). While this review should not disturb or replace the wide latitude afforded juries in reaching their verdicts, the Legislature is clear that the remittitur process was established to “provide an additional element of soundness and logic to our judicial system.” § 768.74(6), Fla. Stat. (2021). The remittitur process aims to prevent “haywire or runaway jury verdicts from standing.” See Rety v. Green, 546 So. 2d 410, 418 (Fla. 3d DCA 1989).
In this case, the Defendants provided 18 different verdicts in its Motion for Remittitur; Plaintiff failed to provide a single case for the Court to review and consider in its analysis. This is important to note, as while the Court did state that it did its own research regarding this Motion, it also noted that it used the information provided by Defendant as part of its analysis.

In its review of the relevant cases, the Court noted that that the pain and suffering components of the verdict in this case exceed by more than $96,000,000.00 the next highest verdict in a Florida case involving similar injuries. It further noted that Plaintiff’s counsel appeared to agree that this award is an outlier as counsel’s firm website publicized the verdict as its largest “car accident” verdict and counsel noted in a press release following the trial that it was one of the highest verdicts in the firm’s history.

Having considered all of the foregoing, the Court found that it was appropriate to remit the past non-economic damages award to $2,500,000.00 and the future non-economic damages award to $10,500,000.00 for a total of $13,000,000.00 in non-economic damages. The Court reasoned that this amount recognized Rodgers’s significant pain and suffering, was not excessive, and was consistent with the general philosophy and trend of awards properly returned in similar auto-accident cases.

In summation, when finding oneself on the wrong end of a jury award, making a compelling and thorough argument for remittitur may successfully help to reduce the fallout of a large tort verdict. On the other end, as what likely occurred here with the Plaintiff, missing an opportunity to help guide the Court by responding to a motion for remittitur leaves the party open to the Court being persuaded by the analysis of others.

TASHA MARIE SANTOS ALVAREZ, etc. v. MIRIAM ACOSTA, et al., Case No. 3D20-640 (Fla. 3d DCA, September 8, 2021)
Santos is a brief decision, primarily focused whether the trial court abused its discretion when denying a new trial motion where there is conflicting evidence.
In Santos, the jury was presented with conflicting evidence as to whether appellee Miriam Acosta, the driver of a car that collided with a motorcycle, caused the fatal crash. This conflicting evidence included certain admissions made by Acosta in her deposition that was read to the jury at trial. Notwithstanding that evidence, the jury returned a verdict for Acosta, finding that she was not the cause of the accident. Tasha Marie Santos Alvarez, the appellant, argued that the jury was “bound” by Acosta’s admissions and that the jury’s verdict for Acosta was contrary to the evidence.
In its opinion, the Court here notes that it cannot reweigh the evidence or determine that the verdict was against the manifest weight of the evidence. And in affirming the trial court’s denial, it notes that a trial court does not abuse its discretion by denying a new trial motion if there was conflicting evidence presented at trial and the jury’s verdict was the product of its weighing that evidence to resolve the conflicts., citing Weatherly v. Louis, 31 So. 3d at 805-06 (Fla. 3d DCA 2009). Finally, citing Rosario-Paredes v. J.C. Wrecker Serv., 975 So. 2d 1205, 1207 (Fla. 5th DCA 2008), the Court notes that reversal of a jury verdict is appropriate only in the absence of conflicting evidence, when there is no rational basis in the evidence to support the verdict.
In summation, a mere conflict when it comes to evidence is not sufficient grounds for a court to grant a motion for a new trial; conflicts as such are expected, and it is the jury’s duty to weight the evidence accordingly as fact finders. It is the opposite, the absence of conflicting evidence, where there is no rational basis to support the verdict, that is more likely to lead to the granting of a motion for a new trial.
Atkinson, P.A. is committed to providing you with sound guidance, representation, and defense in response to these complex legal issues and we will continue to monitor noteworthy cases. Should you have any questions with respect to this update, please feel free to contact our partners directly.

Very truly yours,