“In With the New!” Florida Appellate Court Finds Florida’s Notice Statute

05.06.13 | Permalink

Posted by: Jacey Kaps and Michael K. Gutman

An intermediate appellate Court in Florida has ruled that the State’s current statute for premises liability in slip and falls applies to all active cases. The result of this ruling is that Florida Statute §768.0755 is controlling law for a slip and fall incident even if the incident occurred before the July 1, 2010 effective date of the law. 

In Carrie Kenz v. Miami-Dade County and Unicco Service Company, Case No. 3D12-571 (opinion filed April 24, 2013), Florida’s Third District Court of Appeal rejected the argument by Ms. Kenz that the current premises liability law did not apply to her May 13, 2008 accident because the effective date of the law is July 1, 2010. Ms. Kenz argued the subject statute does not state a specific intent that it is to be retroactively applied and that absent such language the Statute can only be applied prospectively from the date of enactment.

The Third District Court of Appeal disagreed with Ms. Kenz’ position and affirmed the decision made by the trial court to apply Fla. Stat. §768.0755. The Third District Court of Appeal also affirmed the trial court’s decision to grant summary judgment in favor of the defense on the grounds Ms. Kenz failed to show actual or constructive notice of the presence of the liquid on which she slipped. 

The threshold issue addressed by the Court was whether §768.0755 is a procedural or substantive law. A substantive law prescribes duties and rights, whereas a procedural law regards the means and methods to apply those duties or enforce those rights. This distinction is critical in that substantive laws will not apply retroactively absent legislative intent. However, the Florida Supreme Court has held a procedural law “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007).                    

The Third District Court of Appeal held §768.0755 does not add an element to negligence causes of action. Instead, it merely “codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care.” The Court reasoned a plaintiff who has an accrued slip and fall claim under the old statute, continues to have the same claim pursuant to §768.0755. The statute does not alter a plaintiff’s vested right in a prima facie case of negligence. Therefore, the Court concluded §768.0755 is procedural and applies retroactively.

So what’s next?  After Kenz, all slip and fall plaintiffs will need evidence of a business establishment’s actual or constructive notice, even if their accidents occurred prior to the statute’s enactment.[1] In cases where notice is suspect, practitioners may want to consider seeking summary judgment and cite to Kenz as supporting authority. Further, the Kenz decision will likely serve as leverage for businesses in settlement negotiations, as it increases a plaintiff’s burden at trial. 

Florida Supreme Court Rules No Vicarious Liability for Businesses that Rent or Lease Vehicles

04.17.13 | Permalink

Posted by: Hugh D. Higgins

A recent decision of the Florida Supreme Court shields owners of vehicles leased for one year or more from liability for harm that results from the lease of the vehicles. Rosado v. DaimlerChrysler, ___ So. 3d ___, 2013 WL 1338047 (Fla. Apr. 4, 2013). In Rosado, the Florida Supreme Court ruled that the federal Graves Amendment, which insulates businesses that rent or lease vehicles from vicarious liability for harm caused by their drivers, preempts Florida state law. By a 5-2 decision, the Rosado Court held “the Graves Amendment preempts liability under Florida Statutes Section 324.021(9)(b)(1).”   Rosado, 2013 WL 1338047, at *1.

Prior to the enactment of the Graves Amendment in 2005, Florida law imposed vicarious liability on all owners of vehicles based on the dangerous instrumentality doctrine, which makes owners of vehicles liable for the negligence of their drivers. Under Section 324.021(9)(b)(1), companies that lease vehicles for a term of one year or more had the option of requiring the lessee to carry insurance of “not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage and bodily injury liability.” If the elective insurance is obtained, the lessor is not deemed an owner under the dangerous instrumentality doctrine, and thus not vicariously liable for the lessee’s negligence. 

The Graves Amendment abolished vicarious liability against owners that rent or lease vehicles if the owner is engaged in the “business of renting or leasing motor vehicles; and there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).” 49 U.S.C. §30106. The amendment contains a savings clause, designed to ensure the statute does not preempt state financial responsibility laws, which reads:

Nothing in this section supersedes the law of any State or political subdivision thereof—

(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or

(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

49 U.S.C. §30106(b). The Rosado Court rejected the contention that 324.021(9)(b)(1) is a financial responsibility law. It reasoned that the statute does not “does not impose[e] financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle” or impose liability on businesses that rent or lease vehicles. Rosado, 2013 WL 1338047, at *7. Instead, “the statute creates a process by which long-term lessors can avoid the default financial responsibility imposed upon them by Florida’s dangerous instrumentality doctrine.” Id.

In so holding, the court followed the reasoning of a prior Florida Supreme Court opinion in Vargas v. Enterprise Leasing Co., 60 So. 3d 1037 (Fla. 2011). In Vargas, the court held the Graves Amendment preempted Section 324.021(9)(b)(2), which related to the rental and lease of vehicles for less than one year. 

Nearly eight years after the enactment of the Graves Amendment, the dust has settled in Florida courts. Now there is certainty that regardless of whether a business rents or leases a vehicle for one day or over a year, it cannot be held vicariously liable for the harm caused by its customer during the use, operation or possession of the vehicle. 

D.C. Circuit Holds that President Obama’s Recess Appointments of the NLRB were Unconstitutional

02.04.13 | Permalink

Posted by: Samantha Crawford Duke

Decisions of the National Labor Relations Board issued after January 2012 may be invalid. On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Noel Canning v. NLRB,[1] held that President Barack Obama’s recess appointments of three National Labor Relations Board (“Board”) members were unconstitutional and, therefore, the Board lacked the three-member quorum required by the National Labor Relations Act for the Board to act.

In the underlying proceeding, the Board issued a decision finding that the Noel Canning Company had engaged in an unfair labor practice. At the time of that decision, only two of the five Board members were confirmed by the Senate; the other three Board members had been appointed by President Obama on January 4, 2012, during a time (from December 20, 2011, until January 23, 2012) when the Senate had agreed to meet in pro forma sessions every three business days. The President viewed that time as a “recess” and appointed the three Board members without Senate confirmation under the Recess Appointment Clause of the U.S. Constitution.[2]   

On appeal to the D.C. Circuit, the petitioner argued that the Board’s decision was unconstitutional because the appointments of the three Board members were not valid recess appointments and, thus, the Board had acted without a quorum and lacked the power to issue its decision.

The D.C. Circuit agreed. It held that the appointments of the three Board members were unconstitutional and that the Board did not have the power to act when it issued its order. The D.C. Circuit further held that when the President made the three appointments, the Senate was not in “recess” but was merely adjourned. Interpreting the term “recess” as the time between official sessions of the Senate, the D.C. Circuit determined that the Senate was not in “recess” at the time of the appointments. Accordingly, the President was unable to appoint the Board members without the consent of the Senate. The D.C. Circuit also found that the appointments were improper because the three vacancies did not “happen” during a recess, but, instead, happened before the Senate adjourned.[3] Because the appointments were constitutionally invalid, the D.C. Circuit vacated the order issued by the Board. 

This ruling not only impacts the Noel Canning Company but every one of the Board’s decisions issued since January 4, 2012. This is particularly notable because the Board had issued several decisions in the last year extending labor-friendly positions to areas such as social media, employment-at-will policies, and the confidentiality of investigations, as well as overturning some long-standing, employer-friendly decisions of prior Boards. Additionally, pursuant to the decision of the D.C. Circuit, the Board would be unable to take any future action until new members are validly appointed by President Obama and confirmed by the Senate. 

This decision is not the end of the dispute. It is likely that the current administration will appeal the D.C. Circuit’s decision to the Supreme Court. Until there has been a final resolution of this issue, employers should treat any decisions of the Board as valid.