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  • New case on “notice” in slip and fall suits provides help to governmental agencies
  • Chioma Deere co-presented a Continuing Judicial Education (CJE) session to judges on Judicial Management of Electronic Discovery in Palm Beach County.
  • Phil Wiseberg obtains a dismissal with prejudice on the eve of trial in property insurance case.
  • In Bryant v. Mezo, Carri Leininger obtained favorable opinion from the Fourth DCA recognizing the Plaintiff’s failure to disclose prior medical treatment was fraud and justified dismissal of the Plaintiff’s lawsuit.
  • Jim Williams intervened in complex construction/banking litigation on behalf of a local county obtaining a stay and potentially saving the county from a judgment that would have deprived the county of over a million dollars in collateral.
  • Chioma Deere co-presented a Continuing Judicial Education (CJE) session on Judicial Management of Electronic Discovery at the 19th Judicial Circuit to judges from St. Lucie, Martin, and Okeechobee counties.
  • Lee Baggett and Jeff Cosby spoke at the Orlando Claims Conference on Exposing Financial Bias of Treating Doctors.
  • Carri Leininger obtains summary judgment for CGL carrier in coverage dispute arising out of a multi-million dollar construction defect case.
  • Jessica Gregory obtains summary judgment for Property Owners Association in ADA/FHA case.
  • Phil Wiseberg and Jim Williams obtain a defense verdict in an automobile negligence suit
  • Phil Wiseberg achieved dismissal of a federal copyright infringement lawsuit on behalf of a local university…
  • Carri Leininger wins appellate victory in controversial juror texting case, Murphy v. Roth
  • Jim Williams succeeds with Palm Beach County jury returning defense verdict for half clients’ pre-trial offer

Reasonably Foreseeable Standard Upheld in Negligence Actions, Mere Possibility of Harm Rejected

Las Olas Holding Co. d/b/a Riverside Hotel v. Demella, No. 4D16-231, 2017 WL 3085329, at *2 (Fla. Dist. Ct. App. July 19, 2017)

On an early Sunday afternoon in 2012, a driver with a blood alcohol level three times the legal limit was travelling on Sagamore Road in downtown Ft. Lauderdale. Sagamore Road, which wraps around the rear of the Riverside Hotel (“Riverside”) curves, with traffic at one point travelling toward the rear wall of the hotel’s cabana, before curving again and continuing on. On this day, the highly intoxicated driver failed to maneuver the curve and accelerated directly into the rear wall of the Riverside’s cabana positioned about fifteen feet from the road. The force of the impact collapsed the cabana’s walls, killing the plaintiff’s pregnant wife.

At trial, plaintiff’s attorneys argued that the road’s layout and known speeding thereon created a foreseeable zone of risk encompassing the hotel’s cabana. Plaintiff’s attorneys argued that had Riverside placed palm trees in front of the cabana, the deadly incident may not have occurred. Riverside countered by asserting that in order to reach the cabana, fifteen feet from the road, a vehicle would need to ‘jump’ the curb, cross a sidewalk, drive through a wall of bushes while avoiding hitting both a utility pole and palm tree, before making contact with the outer steel-reinforced concrete wall of the cabana.

At the conclusion of the plaintiff’s case, Riverside moved for a directed verdict arguing that plaintiff failed to demonstrate that before this accident, it was reasonably foreseeable that an incident of this nature would take place on Riverside’s premises. Riverside’s motion was denied. During its case-in-chief, Riverside presented evidence that the lanes on Sagamore Road were a standard twelve feet wide, with no sight limitations and clear markings indicating to a driver from 600 feet away that the road would curve. Riverside went on to better the point by presenting evidence that in the more than forty-nine years of the road’s existence, there has never been an accident where someone had driven off the roadway until the accident in question. At the close of its evidence, Riverside renewed its motion for a directed verdict arguing the reasonable unforeseeability of the circumstances, which the court once again denied.

At the end of the trial, the jury returned a verdict finding both the driver and Riverside responsible. The jury apportioned 85% fault to the driver and 15% to Riverside, and awarded total damages of $24,057,283.00. Riverside appealed.

In order for a party to be found negligent, the plaintiff must prove; (i) that the party owed a duty to the plaintiff to conform to a standard of conduct; (ii) that the party breached its duty to the plaintiff; (iii) a causal connection between the breach and injury (also referred to as causation); and (iv) loss or damage to plaintiff.

While the Fourth District Court of Appeal found the plaintiff to have failed to meet its burden of proof as to the first three elements, it is the Court’s analysis with regard to duty that was most significant.

Florida law is clear that a duty is created only if the injury was the result of a reasonably foreseeable danger. McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992). A mere possibility of an accident is insufficient.

In discussing whether the facts gave rise to a duty, the Fourth DCA relied on rulings in similar situations to emphasize the point that some accidents are too unusual or extraordinary to be reasonably foreseeable.

In Florida Power & Light Co. v. Macias, 507 So.2d 113 (Fla. 3d DCA 1987), the Third DCA found that a utility company did not have a duty to protect drivers from a utility pole it placed six feet away from the road where evidence presented showed the pole was not obscured from view, visibility was good, and the speed limit was moderate. The Third DCA reasoned that, under the circumstances, the chance that a vehicle would deviate from the road and collide with a pole was a remote possibility, and as such, not a legally foreseeable event.

The Court went on to cite to the case of Graham v. Langley, 683 So.2d 1147 (Fla. 5th DCA 1996), where an intoxicated driver attempting to park in a restaurant’s parking lot, drove over a curb, across a sidewalk, and through the plate glass window of the restaurant hitting a customer inside. The Plaintiff in Graham argued that had the parking lot curb been taller, the accident would have likely been prevented. The Fifth DCA likewise held that the possibility of someone driving into the restaurant is not sufficient; such an incident must have been reasonably foreseeable for a duty to exist. When addressing foreseeability, the Fifth DCA noted that the incident of a car driving into the restaurant had not occurred with such frequency that it be expected to happen again, and thus, there was no reason for the restaurant to take steps to avoid or prevent such an occurrence.

In the circumstances surrounding the fatal crash at Riverside, the evidence showed there were no sight limitations or other physical conditions that indicated Sagamore was operating in an unsafe manner. Furthermore, there was no history of any off-road accidents in the road’s forty-nine year existence. The Fourth DCA reasoned the mere fact that some speeding occurred on the slightly-curved road did not mean that a dangerous condition existed to persons inside the cabana situated fifteen feet back from the road, of which Riverside was aware or should have been aware. The Court held that such an incident was an “unquestionably unforeseeable” freak accident for which no duty was imposed on Riverside.

The Court went on to warn the need for sister courts to place limits on the foreseeability of harm; otherwise, all possibilities, regardless how remote, will be interpreted as legally foreseeable.

The trial court’s judgment was reversed with instruction that Riverside’s motion for directed verdict be granted.

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