terry's takes

Filtered by category: summary judgement standard

April 1, 2024

georgia court of appeals, premises liability, summary judgement standard

Drucker v. Morgan

An AirBnb was not entitled to summary judgment for liability for a falling limb that injured a guest at the property just because the accident happened slightly off of the AirBnb’s property. The guest was injured while standing where the AirBnb told her to park, which was abandoned and unowned property next to the B&B that was decorated by the B&B and had a section marked off for parking. The limb was dead for years, and the decay was obvious to the naked eye. OCGA § 51-3-1 requires property owners to exercise ordinary care in keeping the property safe, and also keeping the “approaches to the property” safe (at least to invitees). A jury could find that this area was an “approach” to the property. The fact that the Plaintiff’s husband lightly tugged on a vine, which was the last straw bringing the huge limb down did not justify summary judgment. An injury can have more than one cause. A healthy limb would not have fallen from a simple tug. The case must go to the jury.

March 15, 2024

georgia court of appeals, medical malpractice, summary judgement standard

Ferguson v. Kennestone Hospital, Inc.

A widow and personal representative for her husband’s estate apparently handled a lawsuit pro se and sued a hospital under several theories for treatment that she alleges killed him. Due to (avoidable) errors in pleading and litigating the case, almost all of her claims were dismissed or she lost at summary judgment. The claim of civil battery, however, survived where she alleged in a verified complaint (which is evidence) that her husband’s signature on a consent to surgery form was forged.

March 12, 2024

1st dca, negligence duty, summary judgement standard

Casey v. Mistral Condo. Ass'n, Inc.

A third-floor balcony gave way due to wood rot that a condo association knew about for years but had neglected to repair. Even though everyone in pretrial discovery agreed that the Association had the duty to repair the balconies (and had repaired other balconies), the trial court granted summary judgment to the condo association, holding that the governing condo documents placed the duty of repair on the unit’s owner and that testimony to the contrary was barred under the parol evidence rule. Reversing, the DCA held that the parol evidence rule only bars evidence of intent prior to or at the time of the contract, not testimony about subsequent oral agreements that contradict, vary, defeat or modify a written agreement. While duty is normally a matter of law, where the duty arises from contract and there is an argument that the contract is vague, a genuine dispute of fact on the meaning of the contract is an issue for the jury, not the judge, to resolve, so summary judgment was improper.

February 23, 2024

1st dca, civil rights, summary judgement standard

Pickford v. Taylor County School Disctrict

In unusually harsh language, the First DCA reversed Circuit Judge Darren K. Jackson of Taylor County for granting summary judgment in favor of the Taylor County School District on a claim of racial discrimination. The court said that all of the reasons given by the trial court for rejecting the plaintiff’s allegations of discrimination were legally or factually incorrect.

October 23, 2023

1st dca, premises liability, summary judgement standard, transitory foreign substance, vicarious liability, writ of certiorari, writ of quo warranto, wrongful death

Garcia v. Southern Cleaning Service, Inc.

Southern Cleaning contracted with Winn-Dixie Stores, Inc., a grocery store chain, to provide janitorial services. Then, Southern Cleaning subcontracted that work to PAM Cleaning, Inc., an independent contractor.

June 20, 2023

11th circuit court of appeals, preservation, summary judgement standard

American Builders Insurance Company v. Southern-Owners Insurance Company

The Eleventh Circuit upheld a ruling finding Southern-Owners Insurance Company liable for bad faith after failing to settle a catastrophic injury claim involving its insured. In the case, Southern-Owners delayed investigation and settlement, leading American Builders Insurance Company to step in and settle the claim. Southern-Owners contended American Builders breached the contract by not securing consent, but the court ruled Southern-Owners lacked diligence and failed to meet Florida’s consent requirements. The decision emphasizes an insurer’s duty to act promptly and prioritize the insured’s interests to avoid excess judgments.

June 14, 2023

4th dca, intervening cause, proximate cause, summary judgement standard

Serrano v. Dickinson

a good outcome for a plaintiff! this case arises out of two accidents that occurred within a short time on a rainy afternoon on the florida turnpike. defendant dickinson lost control of her jeep, which collided with the median barrier and came to rest i...

June 14, 2023

4th dca, intervening cause, proximate cause, summary judgement standard

DeSanto v. Grahn

In DeSanto v. Grahn, the Fourth District Court of Appeal reversed a trial court’s decision allowing former clients of disbarred attorney Richard John DeSanto to pursue punitive damages. The Fourth DCA clarified that under Section 768.72(1), Fla. Stat., and Rule 1.190(f), punitive damages claims require a “reasonable showing by evidence” either in the record or proffered to substantiate the claim. Here, DeSanto’s former clients argued that anticipated evidence, rather than existing evidence, sufficed for their punitive damages claim. The DCA, however, sided with DeSanto, emphasizing that mere pleadings or unverified records from unrelated disbarment proceedings do not meet the evidentiary standard required to seek punitive damages. The appellate court highlighted the necessity of actual evidence to prevent baseless punitive damages claims. Reversed and remanded

June 7, 2023

3rd dca, examinations under oath, summary judgement standard

Infinity Auto Insurance Company v. Miami Open MRI, LLC

while i do not summarize every pip (personal injury protection) appeal because they usually only involve billing disputes between insurance companies and medical providers, this one is notable.

June 7, 2023

11th circuit court of appeals, summary judgement standard

Marquez v. Amazon.com, Inc.

The Eleventh Circuit Court recently affirmed the dismissal of a class action lawsuit brought by Amazon Prime members against Amazon. The lawsuit alleged that Amazon failed to deliver on its “Rapid Delivery” promise, typically 2-day shipping, during the COVID-19 pandemic while continuing to charge full membership fees. Amazon argued it suspended this service to prioritize essential shipments, relying on its Terms & Conditions, which allow it to modify or limit Prime benefits at its discretion. The appellate court found that Amazon’s contractual language, including the right to adjust services and provide them on an "as is" basis, was valid and did not make the contract unconscionable. Consequently, the court upheld Amazon's authority and dismissed the claim.

May 31, 2023

3rd dca, affirmative defenses, sovereign immunity florida, summary judgement standard

City of Miami v. Robinson

The Third DCA held that the City of Miami could invoke sovereign immunity despite prior sanctions striking its defenses due to discovery violations. Robinson sued the City for negligence after an accident with a City-owned vehicle driven by an off-duty employee. The court found that sovereign immunity, like subject matter jurisdiction, can be raised at any time, and ruled that the employee was not within the scope of employment during the accident. Sovereign immunity thus barred the claim. Reversed and remanded.

May 31, 2023

4th dca, summary judgement standard

Fuentes v. Luxury Outdoor Design, Inc.

In B. Little & Company, Inc. v. Choi Wai Printing (Hong Kong) Limited, the Fourth District Court of Appeal reversed a summary judgment ruling. The trial court mistakenly believed it was obligated to rule in favor of the defendant because the plaintiff did not respond to the summary judgment motion. Under Rule 1.510, the court has discretion to take other actions besides granting the motion. The appellate court emphasized that summary judgment is only warranted if undisputed facts show entitlement, leading to a reversal and remand for reconsideration.

Our Promise

Aggressive Litigation. Honest Representation. Dedicated Communication. Respect and Compassion.