Fourth District Court of Appeal Recognizes the Protection of Incident and Safety Reports Under the Work Product Doctrine

04.06.15 | Permalink

Posted By: J. David Marsey

In February 2015, the Fourth District Court of Appeal held that the Broward County Circuit Court deviated from the essential requirements of the law when it ordered the production of a company’s quarterly safety reports during a slip-and-fall lawsuit. In reversing the trial court’s order to produce these reports containing evidence of prior falls, the court reinforced the adage that plaintiffs may not make a case from a defendant’s investigation intended to improve safety and manage risk.

In this case, the plaintiff attempted to obtain incident reports and quarterly safety reports containing details about prior falls.  The defendant objected to the production of the documents arguing that the requested documents were protected from disclosure by the work product doctrine because they contained photographs, discussions surrounding the incidents and mental impressions regarding the incidents.  The trial court agreed that the incident reports were not discoverable, but ordered the production of the safety reports that contained much of the same information.

In reaching its decision that the safety reports were also protected from disclosure, the appellate court recognized that information gathered in anticipation of litigation, including internal investigations, are protected from disclosure absent a showing by the plaintiff that she was unable to obtain substantially equivalent evidence through other means.  Importantly, the court recognized that a lawsuit or claim need not be filed to invoke the work product protections.  Even reports that are routinely prepared may qualify as work product because experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries and that frivolous claims are sometimes made.  If defendants knew their investigative reports were discoverable, it would defeat the reasons for preparing them and would discourage a proactive critical self analysis designed to improve customer safety.  A company’s decision to fully investigate incidents and to memorialize the findings to protect itself against meritless claims should not, in and of itself, permit the plaintiff to utilize the fruits of their labors.

This case is important because the court recognized that we live in a litigious society and that many abuse the ease in which a lawsuit may be filed.  By holding plaintiff’s to their burden, the court ratified a defendant’s right to fully investigate adverse incidents and to document its findings while minimizing the fear that their efforts to self-regulate will be used against them.  Public and private entities should continue to thoroughly investigate adverse incidents and document their findings as part of a comprehensive risk management program.

David Marsey is a former police officer, investigator and prosecutor and is an attorney at the law firm of Rumberger, Kirk & Caldwell, P.A. in Tallahassee, Florida.  He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state.

Rumberger, Kirk & Caldwell provides litigation and counseling services in a wide range of civil practice areas including product liability, commercial litigation, construction,  real estate, intellectual property litigation, securities litigation , labor and employment law,  bankruptcy, insurance coverage, professional liability and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama. For more information, please visit www.rumberger.com.


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Jacey Kaps interviewed by Daily Business Review

03.23.15 | Permalink

Posted By: Jacey Kaps

Attorney Jacey Kaps from Rumberger’s Miami office was recently interviewed by the Daily Business Review for a March 23, 2015 story concerning the impact from the First District Court of Appeal’s decision in Deborah Glaze, Appellant, v. Kathy Worley, DBA Chick-Fil-A Of Cordova Mall, Appellee. The article is entitled “Chick-Fil-A Reversal Deepens Slip-and-Fall Rift.” To read the article click here.

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First DCA Reinforces Plaintiff's Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances

10.21.14 | Permalink

Posted By: J. David Marsey

October 2014

First DCA Reinforces Plaintiff’s Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances

by J. David Marsey

In August 2014, the First District Court of Appeal interpreted a recently enacted statute that requires plaintiffs to prove actual or constructive knowledge of the presence of a transitory foreign substance before being held liable for plaintiff’s injuries sustained in a fall. In affirming the trial court’s entry of summary judgment for the store, the Court recognized that the duty to act to mitigate a potential danger is triggered by the actual or constructive notice of the presence of a foreign substance, not simply the possibility that it might become present.

In this case, the plaintiff attempted to hold a retail grocery store liable for her injuries when she fell as a result of what she called “unnoticeable drops of water.” The plaintiff was returning to the store from the parking lot to return an electric shopping cart for the mobility impaired. After dropping off the cart, she slipped and fell within feet of her destination and suffered personal injury. She argued that the store had constructive knowledge of the dangerous condition because it occurred with such frequency and that it was negligent for failing to install warning cones or rainy-weather mats in the affected area.

Record evidence established that store personnel inspected the area within four minutes of the fall and that, according to plaintiff’s own testimony, it started “misting” outside approximately one minute before. Although there were some factual disputes about exactly when the rain started, the store’s response to the anticipated rain and whether there was water on the floor that caused her fall, the Court held plaintiff to her burden to introduce evidence to establish by a preponderance of evidence that the store knew or should have known of the water on its floor. The Court reasoned that employees’ recognition that it was about to rain was insufficient to trigger a duty to initiate the protective measures utilized during actual rain.

This case is important because it signals the First District’s intent to hold plaintiffs to their burden and recognizes the legislative intent to impute liability to defendants only when they unreasonably fail to use ordinary care to discover dangerous conditions created by transitory foreign substances. Retail stores should diligently and frequently inspect their premises for hazards to take advantage of the statutory protections.

David Marsey is a former officer, investigator, training officer and prosecutor and is an attorney in the firm’s Tallahassee office. He defends and advises corporations, government entities and their employees throughout the state.

 

Rumberger, Kirk & Caldwell provides litigation and counseling services in a wide range of civil practice areas including product liability, commercial litigation, construction,  real estate, intellectual property litigation, securities litigation, bankruptcy,  labor and employment law, insurance coverage, professional liability and administrative law. Offices are located in Orlando, Tampa, Miami, Tallahassee and Birmingham, Alabama. For more information, please visit www.rumberger.com.

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Recent Updates

04.06.15  Fourth District Court of Appeal Recognizes the Protection of Incident and Safety Reports Under the Work Product Doctrine  Read Article >>

03.23.15  Jacey Kaps interviewed by Daily Business Review  Read Article >>

10.21.14  First DCA Reinforces Plaintiff's Burden in Constructive Knowledge Cases Involving Transitory Foreign Substances  Read Article >>

10.31.13  Must Medical Treaters Be Paid for Their Testimony?  Read Article >>

08.01.13  Protecting Licensees Against Claims of Negligent Security  Read Article >>

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