terry's takes
Filtered by court: 5th dcaApril 1, 2024
5th dca, punitive damagesCrump v. Am. Multi-Cinema, Inc.
The 5th DCA affirmed a trial court’s order forbidding Plaintiff from presenting a claim for punitive damages. People in the parking lot of an AMC movie theatre fled inside when someone in the parking lot fired a gun. Plaintiff Crump was inside the theatre to see a film. An AMC theater employee ordered everyone to leave the theater, another theatre-goer shouted that there was an active shooter, and Plaintiff Crump was trampled by the panicked crowd on their way out.
read moreMarch 25, 2024
5th dca, rule 1 540 motionRios v. Progressive Express Ins. Co.
A recent ruling clarified that a party alleging fraud on the court, or extrinsic fraud, can only seek relief more than one year after the order by filing an independent action. This reinforces the procedural requirement for addressing claims of extrinsic fraud outside of direct appeals or motions. The decision was affirmed.
read moreMarch 25, 2024
5th dca, no categoriesPereira v. Jones
Plaintiff had two car accidents and wanted to sue defendants in both accidents in a single case. At least in the 5th DCA, a plaintiff who is injured in two successive accidents may bring one suit where the accidents cause the (1) same or similar injuries and (2) it is difficult or impossible to apportion the injuries between the two tortfeasors. Where the accidents or injuries occur in different counties, all of the defendants may be sued together in one of the counties in which one of the causes of action arose. The trial court erred in denying plaintiff’s request to amend the complaint to allege that the accidents caused the same or similar injuries such that it was difficult or impossible to apportion the injuries and severing the cases. On remand, the plaintiff can fix the complaint to make the proper allegation so that he can bring a single case with regard to both accidents.
read moreMarch 25, 2024
5th dca, directed verdict, premises liability, slip and fall, transitory foreign substanceDoty v. Dolgen Corp, LLC d/b/a Dollar General
In this slip-and-fall case, Dollar General’s motion for directed verdict fell “far short.” One employee brought outdoor displays inside the store to get them out of the rain. She put out a wet-floor sign near the displays. When the rain stopped, a different employee brought the displays back outside and removed the wet floor sign. Plaintiff entered the store and slipped on a puddle of water inside the store. Dollar General argued that it had no constructive or actual notice of the water puddle, but a business owner has “actual knowledge” of a dangerous condition when the owner or one of its agents “knows of or creates the dangerous condition.” Here, employees created the condition by bringing the wet displays inside and then by taking away the wet floor sign. The jury’s verdict in plaintiff’s favor was affirmed.
read moreMarch 10, 2024
5th dca, medical malpracticeWilson v. Fla. Birth-Related Neurological Inj. Comp. Ass'n
Under Florida law, birth-related neurological injury claims must be filed through the Florida Birth-Related Neurological Injury Compensation Plan (NICA) instead of going to court, unless clear evidence shows 'bad faith' or 'willful disregard' by the provider. In a recent case, NICA denied a claim, concluding that the child’s oxygen deprivation did not lead to a brain injury causing permanent impairment. An Administrative Law Judge agreed, finding NICA’s expert testimony more credible than the plaintiff's. The DCA upheld this decision, noting it cannot re-evaluate the evidence, thereby affirming the dismissal of the claim.
read moreMarch 9, 2024
5th dca, transitory foreign substanceLeftwich v. Wal-Mart Stores E., LP
The Fifth DCA upheld a summary judgment in favor of Walmart, dismissing a slip-and-fall case where the plaintiff, Leftwich, alleged Walmart had constructive notice of a clear liquid on the floor that caused her fall. Video evidence showed no signs of the liquid in the nine minutes before the incident, and an employee testified that he was certain he would have seen the liquid if it had been present earlier. Although ‘plus’ factors like dirty footprints and wheel tracks were observed, the court found these insufficient to establish that the liquid was present long enough to hold Walmart liable. Judge Soud dissented, arguing that the evidence of ‘plus’ factors warranted a jury trial to determine the facts. The case highlights Florida's strict standards for proving constructive notice in premises liability cases involving transitory foreign substances.
read moreJune 30, 2023
5th dca, premises liability, slip and fallFrazier v. Panera, LLC
In Frazier v. Panera, LLC, the Fifth District Court of Appeal (5th DCA) examined a premises liability slip-and-fall case. Mrs. Frazier tripped on an unattended weighted sign base in Panera’s parking lot, leading to an appeal after Panera’s successful motion for summary judgment. The DCA emphasized two duties of landowners to invitees: (1) to warn of concealed perils, and (2) to maintain a safe environment. The court found that the sign base presented an unusual hazard not typically encountered, creating a factual issue on its "open and obvious" nature. The decision was reversed and remanded.
read moreJune 27, 2023
5th dca, sovereign immunity floridaCity of Winter Park v. Veigle
The Fifth DCA ruled that the City of Winter Park is shielded by sovereign immunity in a case where a police officer, driving home in a patrol vehicle after work, was involved in an accident. The court held that the officer was not acting within the scope of his employment at the time, as merely driving a take-home patrol car does not establish government liability. The decision reversed the trial court’s denial of summary judgment and reinforced that sovereign immunity bars such claims when employees are off-duty. Reversed and remanded.
read moreApril 6, 2023
5th dca, summary judgement standardKing v. Farah & Farah, P.A.
In a legal malpractice case, the DCA reversed a summary judgment granted to the law firm Farah & Farah due to concerns that the trial judge lacked independent judgment. Terrell King sued Farah & Farah for malpractice following a negligent security case, and the firm sought summary judgment. After the hearing, the judge adopted the firm's 40-page proposed order verbatim, with no alterations. Citing *Perlow v. Berg-Perlow*, the DCA noted that such verbatim adoption, especially without allowing the parties to review or comment on each other's proposed orders, suggests a lack of independent judicial assessment. The case was remanded for further independent review.
read moreApril 6, 2023
5th dca, no categoriesRegions Bank v. Austin & Laurato, P.A.
the underlying case involved a prior action for a homeowners’ insurance dispute about a sinkhole. that case resulted in three checks paid by state farm, one of which was to pay off the plaintiff’s line of credit with regions bank. the check was made out...
read moreApril 6, 2023
5th dca, no categoriesHolland v. James R. Holland, II
yes, this is a family law case. no, we don’t normally look at those. here, one of the issues on appeal, however, was the exclusion of the testimony by the former wife’s threating physician about whether she was able to work (which related to imputing in...
read moreApril 1, 2023
5th dca, directed verdict, negligence, non economic damagesCooper v. Gonzalez
In this case, the Fifth District Court of Appeal addressed issues of negligence, expert testimony, and non-economic damages. After Cooper rear-ended Gonzalez, they disputed the extent and permanence of her injuries, with the court ultimately ruling that Gonzalez’s directed verdict on permanent injury was improper due to conflicting evidence. The DCA reversed and remanded for a third trial, emphasizing that a permanent anatomical change alone does not meet Florida’s statutory definition of a permanent injury.
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