Must Medical Treaters Be Paid for Their Testimony?

10.31.13 | Permalink

Posted by: Michael L. Forte

"Must Medical Treaters Be Paid for Their Testimony?" was originally published in the Florida Defense Lawyers Association Trial Advocate Quarterly, Fall 2013 (Volume 32, #4).

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Protecting Licensees Against Claims of Negligent Security

08.01.13 | Permalink

Posted by: Laura A. Stuzin and Stephen K. Talpins

Introduction
One party generally is not responsible for the intentional torts or criminal acts of another. However, the rule is not absolute. Proprietors must maintain their premises in a reasonably safe condition and make “every reasonable effort” to maintain order among those who patronize their business. Borda v. East Coast Entertainment, 950 So. 2d 488 (Fla. 4th DCA 2007). Thus, establishments have a duty to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.

This exception poses a special danger peculiar to Florida licensees. Florida is a “comparative fault state;” courts generally apportion damages according to each party’s percentage of fault. However, in cases where one patron injures another during or after a reasonably foreseeable criminal act, the owner of the premises may be held legally responsible for a claimant’s damages. Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997). In this article, we explore the basic principles underlying claims for negligent security and the different options available to licensees to be proactive and protect their businesses.

General Liability for Negligence Security
Licensees may be held liable for failing to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct. Foresee ability may be established by proving a proprietor had actual or constructive knowledge of (1) a particular assailant’s inclination toward violence; or (2) the “dangerous condition” of the premises. Hall v. Billy Jack’s, Inc., 458 So. 2d 760 (Fla. 1984). A plaintiff may prove that a “dangerous condition” existed either by showing that there was a “likelihood” of disorderly conduct that might endanger the safety of patrons or that security staffing was “inadequate.” Key factors include local crime rates, prior incidents (including calls to law enforcement), the crime’s location (whether it occurred on the premises, next to the premises, or close to the premises), the type of crime, the specific circumstances of the crime, and whether security measures could have deterred the crime.

In the case of Allen v. Babrab, 438 So. 2d 356 (Fla. 1983), an intoxicated male patron assaulted a woman in an club’s parking lot after she rebuffed his advances. The establishment had a history of fighting and disorderly conduct by its patrons. Thus, in the past the club had employed security personnel to maintain security on their premises. However, on the night of the incident with Plaintiff, no security was present even though the club recognized that there was a likelihood of disorderly conduct by third persons. The court held that establishments have a duty to protect patrons from foreseeable harms and found that the establishment was negligent and liable for the incident because it failed to address a known danger.

Minimizing Risk and Exposure
Licensees can protect themselves from liability and minimize exposure by being proactive.   Some of the actions they make take include :

  • Identifying who is responsible for security in their leases
  • Drafting and implementing policies that set out the licensees practices for:
    •  Hiring and retention
    •  Crime reporting
    •  Maintenance
    •  Safety
    • Security
    • Alcohol and drugs
       
  • Familiarizing managers with local crime statistics
  • Maintaining the premises
    • Ensure appropriate lighting
    • Prevent overgrown landscaping that may provide criminals with cover to hide
    • Installing walls or fences if appropriate
  • Recordkeeping
  • Documenting and tracking incidents
  • Maintaining appropriate staff
  • Hiring security if necessary
  • Discouraging overconsumption or over-service
  • Removing customers in appropriate cases
  • Contacting the police for backup when necessary

Investigation and Defense
Accidents happen and many patrons are quick to file claims or suits, irrespective of their validity. Unfortunately, patrons typically have between two and four years to file their suits. During that time, memories fade, employees switch jobs, and evidence disappears. This makes it very difficult for establishments to defend themselves. Thus, it is important that licensees investigate all incidents as quickly as possible and document their findings by taking written or stenographic statements of witnesses and taking photographs or video if possible. In cases involving significant injuries or death, licensees may want to contact counsel early on to confirm that all bases are covered.

Insurance
Of course, it is virtually impossible to eliminate risk entirely, particularly in our extremely litigious society. In December 2011, a Texas woman sued a bar when she was raped by two police officers after leaving a local club. She claimed that the establishment was responsible because employees served her alcohol until she became intoxicated, continued serving her even after she became visibly drunk, and then allowed her to leave the club when she posed a clear danger to herself and others. While we are skeptical that a similar suit could be successfully prosecuted in Florida since it is unforeseeable that police officers would rape anyone, it serves as a great reminder of how important it is for licensees to be aware of their potential liability and obtain and maintain insurance coverage. 

Conclusion
We live in an imperfect and litigious world fraught with risk, both seen and unseen. Businesses are cautioned to protect themselves as much as they reasonably can against all such dange

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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. 



[1] Please note this opinion was filed April 24, 2013. Florida Rule of Appellate Procedure 9.330 provides a Motion for Rehearing “may be filed within 15 days of an order or within such other time set by the court.” Therefore, the deadline for Plaintiff to seek rehearing is on or before May 9, 2013, at which point this decision becomes final.

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05.06.13  In With the New! Florida Appellate Court Finds Florida's Notice Statute  Read Article >>

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