terry's takes
Filtered by court: 3rd dcaNovember 13, 2024
3rd dca, punitive damagesSommers v. Philip Morris USA, Inc.
The estate of a deceased smoker suing for wrongful death could not seek punitive damages from a tobacco company. Defendants are entitled to setoff for prior amounts for punitive damages that punish the same conduct in a subsequent case. Though punitive damages were theoretically available for the non-intentional and intentional torts, because the jury only awarded $1 million in compensatory damages and because Philip Morris USA has already paid $198 million in punitive damages for the conduct in Engle cases (deluding non-smokers into thinking smoking was safe), Plaintiff would have to win more than $198 million. And even if a jury awarded that, the ratio of such punitive damages to only $1 million in compensatory damages would make the award unconstitutional.
read moreApril 9, 2024
3rd dca, hearsayCordovi v. State
A recent ruling clarified that a hearsay statement in a 911 call can be considered non-testimonial if made to seek assistance, rather than in response to police questioning or to create a record against someone. Such non-testimonial statements do not violate the Sixth Amendment’s Confrontation Clause and can be admitted in court. Under Florida’s hearsay rules, 911 calls may also qualify for exceptions like 'spontaneous statements' or 'excited utterances' if made during or immediately after the event, reflecting the caller’s perception or excitement, unless there are concerns about the statement’s reliability.
read moreApril 9, 2024
3rd dca, service of processNavarro v. Borges
A contractor that controls and supervises a job site has the duty to provide a safe work site. A contractor can be held liable for a dangerous condition it negligently created or approved. Individual officers and agents of a contractor can be personally sued even for acts taken in the course of employment if they were personally “actively negligent.” There was evidence that the president of the contractor personally sent his employee to adjust a roof tarp without adequate safety equipment, so summary judgment in the president’s favor was reversed, and the case will be sent back down for trial.
read moreApril 9, 2024
3rd dca, disqualification or recusal of judge, writ of prohibitionPimienta v. Rosenfeld
The Third District Court of Appeal granted a petition for a writ of certiorari, overturning a trial judge’s decision to deny a motion for disqualification. The motion, deemed legally sufficient, alleged that the judge insisted on hearing a motion 'off the record,' refusing the presence of a court reporter. Under Florida law, a judge reviewing an initial disqualification motion must accept its allegations as true without fact-finding. Once grounds for disqualification are presented, denial of such a motion warrants a writ of prohibition as the proper remedy. The petition was granted, ensuring judicial impartiality.
read moreApril 1, 2024
3rd dca, premises liability, sovereign immunity floridaCity of Miami Beach v. Menendez
In a recent ruling, the court confirmed that the City of Miami Beach holds a duty of care for public swimming areas it operates, such as South Beach. The city cannot claim sovereign immunity to avoid liability for known dangers within these areas, regardless of formal state park designation. By maintaining a public swimming facility, the city assumes the common law obligation to ensure safety, similar to a private entity. While a plaintiff's awareness of potential dangers may influence comparative negligence, it does not absolve the city of responsibility for addressing hazardous conditions.
read moreApril 1, 2024
3rd dca, attorneys feesStok + Kon, P.A. v. Miami Dade College
The Third DCA affirmed a trial court’s order awarding statutory fees and costs to Miami-Dade College even though the college failed to plead entitlement to fees. The failure to plead was excused by the exception to the pleading requirement established in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), which held that if a party fails to plead entitlement to fees but raises the issue in another way and the opposing party doesn’t object, the court can award fees.
read moreApril 1, 2024
3rd dca, punitive damagesGattorno v. Souto
In Florida, juries may award punitive damages for negligence involving intoxication. A recent case allowed a plaintiff to pursue punitive damages after alleging that a defendant, while allegedly intoxicated, backed her car into the plaintiff in a parking lot, causing severe injuries. Despite disputes over the defendant’s level of intoxication, the court found a reasonable basis to proceed with punitive damages. Citing a 1976 Florida Supreme Court ruling, the court emphasized that both state law and courts support punitive measures to deter drunk driving, highlighting the public safety risks posed by intoxicated drivers.
read moreApril 1, 2024
3rd dca, hearsayPhilip Morris USA Inc. v. Lipp
A 2-1 panel reversed a judgment for the estate of a deceased smoker against tobacco company Philip Morris based on a hearsay violation. At trial, the deceased smoker’s son told the jury that his mother, the decedent, was “upset at the tobacco companies because they told her that filtered cigarettes – that filters would filter out the bad stuff and keep her safe and she knew once she got lung cancer and had her lung removed that the filter didn't keep her safe and didn't filter out the bad stuff” and that tobacco companies “lied to me.” While statements of then-existing state of mind are admissible as a hearsay exception, statements after the fact about your recollections are not, so the statements were inadmissible hearsay. The majority found, without much analysis, that Plaintiff failed to show that the admission of the statements was harmless error. In dissent, Judge Emas agreed that the statements were improperly admitted, but pointed out reams of evidence that made the statements cumulative and harmless.
read moreMarch 14, 2024
3rd dca, service of processGonzalez v. City of Coral Gables
A recent decision by the District Court of Appeal reversed the dismissal of a plaintiff’s claim against the City of Coral Gables due to late service. Although the plaintiff served the complaint more than a year after filing, exceeding the 120-day limit under Florida Rule of Civil Procedure 1.070(j), he submitted an affidavit detailing 'good cause' for the delay. The trial court initially dismissed the case, but on appeal, the DCA found that the affidavit provided sufficient justification, and thus the rule did not mandate dismissal under these circumstances. The case was reversed and remanded for further proceedings.
read moreMarch 13, 2024
3rd dca, no categoriesSanchez v. Sec. First Ins., Co.
A recent Third DCA decision upheld the dismissal of a property insurance case for lack of presuit notice under Florida’s new statute, Section 627.70152, applying it retroactively as a procedural requirement. However, the Sixth DCA disagrees, viewing the presuit notice as substantive and non-retroactive. Judge Scales concurred specially, stating that while the panel was bound by precedent to dismiss without prejudice, he sided with the Sixth DCA's interpretation. This ruling highlights ongoing judicial debate about the retroactive application of the presuit notice requirement.
read moreMarch 13, 2024
3rd dca, attorneys fees, settlementOrtega v. All Dade Fences Inc.
A driver who rear-ends another driver is presumed negligent and can only rebut the presumption by showing that the front driver made a sudden and unexpected stop. Absent such evidence, summary judgment was appropriate. Attorney fees were improperly denied because a proposal for settlement is not ambiguous or invalid for failing to state that a judgment would be entered in the amounts offered and/or provide a timeframe for payment.
read moreMarch 13, 2024
3rd dca, disqualification or recusal of judge, writ of prohibitionBrewer v. Hughes
A recent ruling granted a petition to disqualify a judge who improperly sought guidance from the Judicial Ethics Advisory Committee (JEAC) on a motion for disqualification. The judge referenced facts from the JEAC opinion that contradicted the allegations in the disqualification motion, thus violating the rule against commenting on the truth of such allegations. The court held that this action exceeded the judge's authority, as initial disqualification motions should be reviewed solely for legal sufficiency without outside influence.
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