Caselaw Update Week For The Week Ending January 1, 2010
VALDES, ET AL. vs. OPTIMIST CLUB OF SUNILAND, INC., ET AL., Appellees. Case No. 3D08-1563. 3rd DCA. December 30, 2009.
(Product Liability. Pharmaceuticals. Preemption)
The Plaintiff in the underlying action was a consumer who ingested the over the counter cold medication Tylenol Cold, manufactured my McNeil Pharmaceuticals, along with a soda on the morning before a roller hockey game. He collapsed during the game, having suffered a heat stroke and cardio-respiratory arrest. This episode resulted in brain injury and complete disability for the Plaintiff.
The Plaintiff contended that the Tylenol Cold increased the risk of heat-related illness and heart-related risks when ingested with caffeinated products and followed by strenuous activity in hot environments. He contended that McNeil had a duty to warn of these risks on the Tylenol Cold packaging. McNeil moved for summary judgment arguing that federal law, which did not require the warning suggested by Plaintiff, preempted the state law claims in the Complaint. McNeil further argued that implied preemption precluded the Plaintiff’s claim because it would be impossible for McNeil to comply with both state law and federal law. The trial court agreed and granted final summary judgment in favor of McNeil.
Citing the 2009 U.S. Supreme Court case of Wyeth v. Levine, 129 S.Ct. 1187 (2009), the Court held that, if Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision, but it didn’t. The Court held that Congress’ silence on the issue was strong evidence that Congress didn’t intend for FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.
The 4th DCA further stated that state law offers an additional, and important, layer of consumer protections that complements the FDA regulation. The Court concluded by saying that the federal law that regulates labels for over-the-counter medication expressly saves this type of state law cause of action and therefore summary judgment in favor of McNeil was erroneous.
DEMELUS v. KING MOTOR COMPANY OF FORT LAUDERDALE, Case No. 4D08-3946. December 30, 2009. 4th DCA.
(Automobile Accident. Foreseeability of Criminal Conduct)
The Plaintiff in the underlying action was injured when his vehicle was struck by a stolen vehicle. The vehicle had been stolen from the Defendant car dealership by members of a juvenile gang. Plaintiff claimed that the theft and accident were foreseeable to the Defendant. The Defendant claimed that intervening criminal conduct cut off any possible liability on their part. The Defendant presented evidence that they had not had any similar thefts in the past, as well as evidence of security measures they had taken to prevent such thefts and moved for summary judgment. The trial court granted the motion and the 4th DCA affirmed, stating “[d]uty, however, is not limitless. To impose a duty, it is not enough that a risk merely exists or that a particular risk is foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be imposed. (Citations omitted).
The 4th DCA further held that the theft was unforeseeable by the Defendant because of the lack of history for such break-ins at the dealership and stated “[q]uestions of foreseeability are fact-dependent. Because King Motor had not experienced similar thefts in the past, the vehicle theft at issue in this appeal was unforeseeable as a matter of law.” The Court also held that the Defendant’s conduct did not create a “zone of risk” for the Plaintiff.
GONZALEZ v. CLAYWELL, Case No. 1D09-1421. First DCA. December 31, 2009.
(Torts. Settlement. Accord and Satisfaction)
The Plaintiff below (Claywell) sued Defendant following an automobile accident and the jury returned a verdict in her favor. The defendant appealed claiming that it was error for the trial court to deny his motion for summary judgment on the defense of accord and satisfaction, because the parties had entered into a binding settlement agreement. The 2nd DCA concluded that the plaintiff did not agree to the terms of the release proposed by the defendant’s insurer and therefore was not bound by it.
TATMAN v. SPACE COAST KENNEL CLUB, ET AL., Case No. 5D09-588. 5th DCA, December 31, 2009.
(Torts. Written Releases)
The Plaintiff below was bitten by a dog at a dog show after signing a release in favor of the dog show organizers. She sued the dog show and the issue before the Court was the exculpatory language in the release signed by the Plaintiff-Appellant. The Trial Court held that the language in the release was clear and unequivocal so Defendant below, Space Coast Kennel Club, Inc., was relieved of liability for her dog bite injury. The 5th DCA disagreed and reversed. The language at issue was as follows:
I certify that I am the owner of this dog and furthermore, I (we) certify and represent that the dog entered is not a hazard to persons or other dogs. I agree to not hold SCKC or Brevard County Parks & Rec. Dept. liable for any accident or injury. (Emphasis supplied).
The Court held that a phrase in a contract is ambiguous when it is of uncertain meaning, and thus may be fairly understood in more ways than one (citations omitted). With respect to the release language above, the Court held that the clause was not clear and precise because the operative language – I agree to not hold SCKC or Brevard County Parks & Rec. Dept. liable for any accident or injury – failed to define whose injuries are covered in a circumstance, even though there are multiple possibilities. Because of its “patent ambiguity,” the Court concluded that an “ordinary and knowledgeable” person would not, when viewing this clause, know what he or she was contracting away. (Citations omitted). Thus, the Court held that summary judgment in favor of the Defendants should not have been granted and remanded the case for further review.