Florida Decision Weekly Wrap-up 05/07

May 10, 2010

Florida Decision Weekly Wrap-up 05/07


 CAMPBELL, et al. v. ALTEC INDUSTRIES, INC., et al. Case No. 09-13472. United States Circuit Court for the 11th Judicial Circuit. May 3, 2010.

[Torts. Product Liabilty. Statute of Repose]

The Plaintiff below was an employee of Georgia Power Company who was injured while operating a bucket truck. The truck was equipped with a boom lift cylinder that failed on June 30, 2006, causing the Plaintiff’s injuries. The bucket truck was manufactured by Defendant, Altec and the boom lift cylinder was developed jointly by Defendants Altec and Texas Hydraulics. The assembled lift cylinder was first placed on a test chassis and operated on January 14, 1998. The lift cylinder was finally assembled and placed on the bucket truck sometime in March 1998. The truck with the lift cylinder assembly was sold to Georgia Power Company in April 1998. On February 4, 2008, the Plaintiff sued Altec and Texas Hydraulics on strict liability and negligence theories.

Georgia has a ten year statute of repose that starts to run on “the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury” (citations omitted) The Defendants moved for summary judgment on the basis of this statute of repose.

The district court held that the statute of repose began to run on January 14, 1998, more than ten years before Campbell’s February 4, 2008 lawsuit, and therefore Plaintiff’s claims were barred by the statute. On appeal, the 11th Circuit found that there was “no clear controlling precedent” in Georgia law and certified the following question to the Supreme Court of Georgia:


ABREU v. F.E. DEVELOPMENT RECYCLING, INC., ET AL. Case No. 5D09-826. 5th DCA. May 7, 2010.

[Torts. Negligence. Defenses]

The Plaintiff was injured when his vehicle was struck by a vehicle operated by Defendant Woodall, who was, at the time of the accident, working in the scope of his employment for Defendant F.E. Development. The Defendants moved for summary judgment on the basis that Woodall had established, as a matter of law, that he lost consciousness immediately before the accident occurred. The trial court granted the motion for summary judgment and the Plaintiff appealed. 

The 5th DCA held that, to establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove:

    1. He suffered a loss of consciousness or capacity.

    2. The loss of consciousness or capacity occurred before the purportedly negligent         conduct.

    3. The loss of consciousness was sudden.

    4. The loss of consciousness or capacity was neither foreseen, nor foreseeable. (citations            omitted).

In response to the motion for summary judgment, the Plaintiff submitted medical notes that indicated Woodall had a history of aneurysm, that on the day of the accident, he had a headache for several hours before he lost consciousness, and that he had started having blurred vision and feeling like he was going to pass out. The 5th DCA held that this evidence raised questions of fact as to whether Plaintiff’s loss of consciousness was foreseeable, how suddenly he lost consciousness and whether he had any “premonition or warning” of it. Thus, the 5th DCA reversed the decision granting summary judgment and remanded.

LUCY THOMAS, Individually and as Personal Representative of the Estate of Mildred Thomas v. THE HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY, et al. Case No. 2D08-1671. 2nd DCA May 7, 2010.

[Torts. Wrongful Death. Intentional Misrepresentation. Outrage]

Mildred Thomas died while undergoing surgery. At the time she died, the surgeon and two attending nurses filed reports indicating that she had died of “natural causes” due the stress of surgery. A cursory autopsy was performed by the medical examiner based on this stated cause of death. The following week, during the funeral of Mildred Thomas, the medical examiner called her daughter and the personal representative of her estate and demanded Ms. Thomas’ body be returned to him for a more thorough autopsy. The medical examiner had received information from another doctor at the defendant hospital indicating that Ms. Thomas had died as a result of receiving a lethal dose of a cardiac drug during the surgery, and that the attending doctors and nurses had agreed among themselves not to disclose this fact. Ms. Thomas’ body was returned to the medical examiner and a second autopsy revealed that she had died from toxicity from the cardiac drug. 

Significant litigation ensued, including lawsuits alleging several theories filed by both the Estate of Ms. Thomas, the personal representative in her individual capacity, and the adult children of Ms. Thomas. After a series of amended complaints alleging different theories of liability and various motions to dismiss filed over the years the litigation was pending, the trial court granted motions filed by the defendants dismissing claims for non-pecuniary damages on the Plaintiffs’ intentional misrepresentation claim. At a final pretrial conference, the trial court dismissed the entire intentional misrepresentation claim after Plaintiffs’ counsel stated that Plaintiffs were only seeking non-pecuniary damages on that claim and denied a pending motion that had been filed by the Plaintiff to amend the complaint to add Sec. 1983 claim. Plaintiffs appealed both of those decisions, as well as the trial court’s previous dismissal of the Plaintiff’s Outrage (intentional infliction of emotional disress) claim.

With regard to the final summary judgment on the intentional misrepresentation claim, the 2nd DCA reversed the trial court’s decision to dismiss that claim. The 2nd DCA stated that the trial court’s decision was based on 1. A finding that the personal representative was precluded from seeking nonpecuniary damages in her capacity as a personal representative of the estate because the decedent’s children were all adults and 2. A finding that the claim failed to meet the requirements of the “impact rule”.

The 2nd DCA held that, although adult children cannot recover for mental and emotional pain and suffering and for loss of parental companionship, instruction, and guidance in wrongful death actions arising out of medical malpractice, the claim for intentional misrepresentation had nothing to do with the death arising out of the defendants’ alleged medical malpractice. Instead the acts giving rise to the intentional misrepresentation claim all occurred after the decedent died and therefore were not part of the wrongful death action.

Next, the 2nd  DCA held that the “impact rule”, which provides that in an action for simple negligence, there can be no recovery for me ntal or emotional pain and suffering unless it is connected with physical injury, is not applicable to claims for intentional misrepresentation. The Court held that intentional torts had been deemed to be excluded from the ‘impact rule” (citations omitted).

The 2nd DCA refused to overturn the trial court’s denial of Plaintiff’s motion to amend the complaint to add a Sec. 1983 claim because it held that the trial court’s order was nonfinal and nonappealable.

With regard to the trial court’s dismissal of the Plaintiffs’ claim for outrage, the 2nd DCA held that the Plaintiffs had sufficiently pleaded the elements of a cause of action for outrage. The Court stated that “[w]e believe that the appellees’ conduct in making false statements — which led to the interruption of Mildred Thomas’s funeral and the return of her body for a second, more thorough autopsy — rises to the level of atrocious and utterly intolerable behavior which cannot be condoned in a civilized community” (citation omitted). The Court further stated that when one has knowledge that another person is peculiarly susceptible to emotional distress, that person’s conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge and that it should be apparent to anyone that a person whose loved one had died would be susceptible to emotional distress.   Because it found that the action of providing false information about the cause of a loved one’s death met the standard for a claim of outrage, the 2nd DCA reversed the dismissal of the claim for outrage and remanded the case for further proceedings on that claim.

HOLLAND v. BARFIELD, as Personal Representative for the ESTATE OF BRANDON SCOTT LEDFORD, Case No. 5D09-3828. 5th DCA. May 7, 2010.

[Torts. Civil Procedure. Discovery]

The underlying action was filed after the Plaintiff’s decedent fell from a balcony on the 10th floor of the Defendant’s residence. The Plaintiff sued 5 parties on a negligence theory. The Defendants below requested discovery, including all computer hard drives and cell phone SIM cards in the possession of the Plaintiff from 24 hours before the accident until the present. The Plaintiff objected and the trial court filed an order compelling the Plaintiff to produce the requested items.

The Plaintiff appealed to the 5th DCA on grounds that the trial court’s order gave Defendants unlimited access to her hard drive and SIM card without satisfying the requirements of Menke v. Broward County School Board, 916 So. 2d 8, 11-12 (Fla. 4th DCA 2005). Plaintiff assserted that pursuant to the trial court’s order the Defendants could examine every byte of information on the requested devices in contravention of her right of privacy and without regard to attorney-client or work-product privileges. The 5th DCA agreed that permitting the Defendants’ expert to examine the Plaintiff’s hard drive and SIM card did not protect against disclosure of confidential and privileged information and, therefore, would cause irreparable harm. The Court granted the Plaintiff’s petition for certiorari and quashed the trial court’s discovery order.

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