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2 PRACTICE AREAS Accounting Malpractice Admiralty and Aviation Appellate Arbitration, Alternative Dispute Resolution and Mediation Architects and Engineers Bad Faith and Extra-Contractual Liability Banking and Financial Business/Commercial Law Civil Rights Law Class Action Commercial Litigation Condominium Law Construction Law Corporate, Transactional & Real Estate Directors and Officers Education Law Employment & Labor Environmental Family Law Federal Practice Fidelity and Surety Litigation & Counsel First Party Property Defense Fraud Litigation General Civil Litigation Government Relations Homeowners Association Hospitality Industry Defense Insurance Coverage & Carrier Representation Intellectual Property Land Use Litigation and Real Property Disputes Legal Malpractice Liquor Liability Defense Medicare Secondary Payer Compliance Nursing Home\Health Care Nursing Malpractice Physician s Malpractice Premises Liability Product Liability Professional Liability Litigation Residential Homeowner Defense Securities SIU Insurance Fraud Defense Trucking Accident Defense Vehicle Negligence Workers Compensation IN THIS ISSUE JJ No Longer Waiting on Williams... JJ Right Waiver? No Problem. Wrong Waiver? Problem... JJ Walmart vs. Dukes... J J The Long Arm of Punitive Damages... JJ Our Million Dollar Question and One Court s Answer... JJ Meet One of Our Attorneys: Kristyne Kennedy... JJ Success Stories... EDITORS Scott Cole Angelica Velez (Layout) Now you can connect with CSK via social media Providing Services Throughout Florida With Offices in: Miami West Palm Beach Tampa Key West Ft. Lauderdale Naples Jacksonville Orlando Pensacola Bonita Springs For Further Information, call: or (toll free) or visit our web site at

3 NO LONGER WAITING ON WILLIAMS Supreme Court Holds that a Cause of Action is a Vested Right and Cannot be Impaired by a Statute adding an Element. Ensures Cannot be Applied Retroactively to Lawsuits filed prior to July 1, 2010 By Eric Tinstman Miami office eric.tinstman@csklegal.com Although Florida courts are split on whether Florida Statute (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is retroactive or prospective, the Florida Supreme Court of Florida recently reviewed another similar statute s retroactivity, as applied in American Optical Co. v. Spiewak, No. SC , 2011 WL , (Fla. 2011) upholding Williams v. American Optical Co., 985 So. 2d 23 (4th DCA 2008). This ruling makes it very unlikely that will apply to cases filed before July 1, Since being enacted effective July 1, 2010, Florida state and federal courts have not consistently ruled whether is retroactive as to incidents that occurred before July 1, Notably, returns the state of slip-and-fall cases back to their pre-owens status, in that plaintiffs again have to plead and prove that a defendant had actual or constructive knowledge of the foreign transitory substance. Thus far, the only reported precedent on this specific issue comes from Florida federal court cases (two in the Northern District of Florida, one in the Southern district, and a conflicting case in the Middle District of Florida) and various circuit court orders throughout Florida (which are also split). To determine whether a statute is retroactive, courts analyze the legislative intent and the nature of the statute: It is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively. However, a statute that is procedural in nature does not share the same presumption and may be applied retroactively. Substantive law prescribes rights and duties, while procedural law concerns the means and methods to enforce those rights and duties. Further, if a statute creates new legal obligations or attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application. The Florida legislature did not indicate clear intent for the statute to apply retroactively, providing only that this act shall take effect on July 1, Thus, there is a presumption that this matter is retroactive, with the follow-up analysis becoming: whether the statute is substantive or procedural. The Northern District of Florida, in Yates v. Wal-Mart Stores, Inc., No. 5:10-cv-226/RS-GRJ, 2010 WL , (N.D. Fla. 2010), found this statute to be procedural because the statute that it overturned, Florida Statute , was titled Burden of Proof and statutes affecting the burden of proof are deemed procedural: A substantive law creates, defines, and regulates rights as opposed to procedural or remedial law which prescribes a method of enforcing the rights or obtaining redress for their invasion.... Burden of proof requirements are procedural in nature. However, the Southern District, Middle District, and other Florida trial courts have taken the position that the statute cannot be applied retroactively based upon the reasoning in Williams, reasoning that has now been upheld by American Optical. Williams held that a recent statute that required plaintiffs in asbestos cases to prove that any malignancy or physical impairment they suffered resulted from their exposure to asbestos, could not be applied retroactively. Williams involved the Florida Asbestos and Silica Compensation Fairness Act (Fl. Stat (2005)), which became effective in The key provision at issue in Williams states that a plaintiff - - to bring an action for damages - - has to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor. Under the previous standard, a plaintiff only needed to show that they had suffered an injury from an asbestosrelated disease. More specifically, the Fourth District in Williams noted that there were essentially three levels of analysis to determine whether a lawsuit had vested into a right: (1) not all of the elements of a cause of action have occurred, and thus, the right to that cause of action is a mere expectation and has not CSK QUARTERLY spring

4 vested); (2) all of the elements of a cause of action have already occurred, but there is no judgment (the issue in Williams) and (3) there is a monetary judgment, which is clearly vested right. Williams went on to hold that the second situation - - even if the legislature is clear that the statute is meant to be retroactive - - is unconstitutional, finding that a cause of action based upon a fulfillment of each element, is a vested right. Here, regarding , plaintiffs counsel and some courts have taken the position that constructive notice is a new element akin to Williams Asbestos Statute, requiring pleading and proving that injuries stem from asbestos: plaintiffs must now plead and prove actual or constructive knowledge on the part of the defendant. Interestingly, Williams By Nina Conte Miami office nina.conte@csklegal.com In the summer of 2008, Makimba Mimms, a former Navy information systems technician, sued a Manassas, Virginia gym alleging that he sustained permanent disabilities in the form of rhabdomydysis (very rapid breakdown of muscle fibers) as a result of performing a Crossfit workout in 2005 involving timed, high intensity strength training with little to no rest in between sets. Mimms, who claimed damages in over $500,000 against the gym, a Crossfit affiliate, and a gym employee who administered the workout, was ultimately awarded $300,000 by a Prince William County Virginia jury. With the rising popularity of the recent wave of Crossfit and boot camp-style workouts comes great risk to gyms and fitness centers that host these high intensity exercises. This scenario, of course, is not solely limited to fitness centers but also extends to many other invitee situations where the very real possibility of harm or injury is an ever present looming danger. Consequently, those who find themselves in similar situations where they are legally responsible for the safeguarding of other s safety may find themselves confronted with the issue of how they can protect themselves from being sued. Therefore, the question becomes how a business operator or owner can protect herself, and her contradicted a case from the Third District concerning whether an asbestos statute is retroactive; in that case, Daimler-Chrysler, the Court held changing an element did not affect a plaintiff s substantive right, stating Plaintiff was merely pursing a common law tort theory to recover damages and that such a pursuant was not a vested right because the right was not yet fixed. employees, from lawsuits similar to that brought by Makimba Mimms. However, the issue is now largely clarified, as the Florida Supreme Court has upheld Williams holding that having a valid cause of action is a vested right and that if adding a new element to a cause of action impairs a party s ability to proceed with their lawsuit, then said cause of action is unconstitutional if applied retroactively. In other words, the Supreme Court has held if a party held valid cause of RIGHT WAIVER? NO PROBLEM. WRONG WAIVER? PROBLEM. Under Florida law, exculpatory clauses which limit or even exempt liability for negligence are enforceable provided they meet the necessary requirements. See Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998). While exculpatory clauses seeking to relieve a party from his own negligence are strictly construed against the party claiming relief from liability, the Florida Supreme Court has upheld these clauses as valid and enforceable where the intent is clearly and unequivocally stated in the agreement. University Plaza Shopping Center v. Stewart, 272 So. 2d 507, action, that cause of action cannot be impaired by subsequent legislation. Logically, if Florida Statute (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is applied retroactively, plaintiffs who had a cause of action, may no longer have a cause of action, if they cannot prove that a premise owner had actual or constructive knowledge. Thus, cannot be applied retroactively. 511 (Fla. 1973); see also Sunny Isles Marina, 706 So. 2d at 922. Since Williams is confirmed, courts will rely on the Florida Supreme Court s guidance - - especially since Federal Court s have already looked to the analysis in Williams. Thus, although is a welcome change, to pre-owens jurisprudence, it will likely not apply to cases filed before July 1, With that being said, what should be included in this all-important Waiver? For a Waiver to be valid and enforceable, several components should be incorporated, with the first and foremost being the exculpatory clause. Naturally, in the case of a gym or fitness center, one would want protection from any and all claims arising from one s own active or passive negligence including that of one s employees. However, the possibility arises where protection from any and all claims really does not encompass any and all claims. 4 spring 2012 CSK QUARTERLY

5 It is never presumed that a contract is intended to protect one against one s own negligence, and unless the agreement clearly so states, the courts will hold that such was not the intention. Smith v. Ryan, 142 So. 2d 139, 141 (Fla. 2d DCA 1962); see also University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973). In University, a landlord was sued for wrongful death that occurred when a gas line beneath a barber shop leased by a tenant exploded. The landlord filed a third party complaint against the tenant and its insurer for indemnity basing his action upon the lease agreement containing an indemnity provision which read, in pertinent part: SECTION II. INDEMNITY-LIABILITY INSURANCE. Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life in and about the demised premises. Id. at The central issue presented was whether a contract of indemnity, when stated in general terms of any and all claims, indemnifies the indemnitee for damages resulting from his sole negligence. Id. at 510. In recognizing that a contract for indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, the Supreme Court held that simply using general terms such as any and all claims does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee. Id. at 511. Thus, for these clauses to be effective, they must clearly state the intention to release the party from liability for his or her own negligence. Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318, 320 (Fla. 4 th DCA 1984); see also Banfield v. Louis, 589 So. 2d 441 (Fla. 4 th DCA 1991)(holding that an exculpatory clause stating, I understand that this waiver includes any claims based on negligence, action or inaction of the above parties, was clear and unequivocal to release the defendant from their own negligence and bar plaintiff s recovery). In Van Tuyn, the Court was presented with the task of determining the enforceability of a waiver signed by a patron who was injured as a result of riding a mechanical bull at a country western bar. The waiver provided, in part: I hereby voluntarily assume any and all risk, including injury to my person and property which may be caused as a result of my riding or attempting to ride this Bucking Brama Bull. Id. at 320. In determining that this waiver did not protect the defendants from liability for their own negligence, the court emphasized and reiterated that, for such a clause to be valid and enforceable, it must so clearly state that it releases the party from liability for its own negligence. Id. The court held that the agreement being reviewed is devoid of any language manifesting the intent to either release or indemnify Club Dallas for its own negligence. Id. In response to the defendant s argument that there was an express assumption of the risk present to preclude the plaintiff s recovery, the court rejected that line of reasoning since, for express assumption of risk to be valid, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. Id. at 320 and 321. Additionally, Florida courts have even upheld agreements that attempted to release business owners from liability for their actions that constituted gross negligence. For example, in Theis, II v. J&J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990), the personal representative of a race car driver s estate brought an action against the racetrack operators after the decedent was killed in a racing accident. The essential issue put forward for the Court s determination was whether the release and waiver signed by the decedent was clear, unambiguous, unequivocal, broad enough and specific enough to protect the racetrack owner from liability for his own negligence, even if his actions constituted gross negligence. Id. at 93. The release and waiver, including the assumption of risk clause, stated that the releasees would be released from all liability to the undersigned whether caused by the negligence of the releasees or otherwise. Id. Therefore, since the term negligence was used in the release, and because it was not limited in scope, it must be construed as intended to encompass all forms of negligence, simple or gross. Id. at 94 (However, the Court noted that only intentional torts are not held subject to such an exculpatory clause. See L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4 th DCA 1984).) The ruling in J&J Racing can be distinguished from the holding in Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998), where the court did not uphold an exculpatory clause where there existed ambiguous and contradictory language. In this case, the court was presented with the issue of whether exculpatory provisions contained in the boat storage agreements between Sunny Isles Marina and boat owners were enforceable so as to absolve the marina from all claims of negligence. In answering this question, the court looked to two different provisions that were contained in the agreement (provided below in pertinent part): 7. RISK OF LOSS.The Marina shall not be liable in any way for any loss or damage sustained by Owner which arises out of any cause not attributable to the willful gross negligence of the Marina 8. INDEMNIFICATION. The Owner hereby waives any right it has to claim any damages or other loss or liability from the Marina, its employees or agents arising out of any accident, fire or other casualty about the Marina, whether the same results from any act or neglect of the Marina Id. at 921. In its analysis, the court noted an ambiguity between paragraphs 7 and 8 as set forth above. While, on one hand, paragraph 7 purported to absolve the Marina of liability for any action except willful gross negligence, paragraph 8 attempted to absolve the Marina from any form of negligence. Id. at 922. Therefore, the court found that an ordinary and knowledgeable party would not know what he or she is contracting away and did not uphold the agreement. Id. Finally, courts have looked to the objective appearance of the actual, printed exculpatory clause itself in determining the enforceability of an executed waiver and release. See DeBoer v. Florida Offroaders Driver s Ass n., Inc, 622 So. 2d 1134 (Fla. 5 th DCA 1993)(Where the court held that a reasonable person would have heeded a warning in a release to stay out of a restricted area where the release was printed in at least eight point type and bold print and/ CSK QUARTERLY spring

6 or caps identified the document as a release, waiver, indemnification and assumption of risk agreement). A specific example of this analysis in the context of a high-liability exercise facility such as a crossfit gym can be found in the case of Quintana v. Crossfit Dallas, LLC, 347 SW 3d 445 (Tex. App. Dallas 2011). Though it is not a Florida case, the same rules of law and factors apply. Plaintiff Kimberly Quintana sued her personal trainer, Troy Dodson, and Crossfit Dallas for negligence, breach of warranty and breach of contract after she was injured during a crossfit exercise. Quintana alleges that she was injured as a result of her trainer s failure to supervise her, causing her to endure surgery and over $84,000 in damages. While Quintana admittedly signed a release and waiver, she argued against its validity and enforcement. Her first argument concerned the conspicuousness of the release. Pursuant to Texas law, before a party can release away, or shift, his own negligence, he must provide fair notice by satisfying the requirements of conspicuousness and the express negligence rule. Id. at 450. For a provision to be conspicuous, it must be written or displayed in a way that a reasonable person against which it is to operate ought to have noticed it by being incorporated in a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size and language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size or set off from surrounding text. Id. While Quintana argued that the release did not meet these requirements, the Court disagreed. In its discussion, the Court noted that the word Release was near the top of the second page, appeared in larger type than any other text on the document and was bolded. Id. at 451. Additionally, the text contained three paragraphs and Quintana had initialed the document. Id. at 451. Quintana s last argument against the validity of the release concerned its compliance with the express negligence rule. In order for a party to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the 4 corners of the contract. Id. at 450. Quintana argued that the present release was too vague, broad and ambiguous to provide fair notice. However, the Court once again disagreed with Quintana. Instead, the Court pointed to the fact that the release specifically stated that the participant assumes any and all liability for damages of any kind allegedly attributed to the negligent acts or omissions of the Crossfit facility and its employees. Id. at 452. Therefore, the Court concluded that the release did satisfy the requirements of the express negligence rule. In conclusion, while the widely admired catch-all phrase of any and all may in truth not be sufficient to exculpate one from any and all liability caused through his own negligence, there are numerous ways to circumvent this undesirable result as discussed above. First, require your patron or member to read and sign the agreement. Secondly, ensure that your waiver complies with the Florida requirement of clear and unequivocal language manifesting the intent to release liability. Thirdly, make sure to include the use of the words active or passive negligence or even language including gross negligence. Additionally, also be sure to include exculpatory language regarding the negligence of the signing party, your employees, other patrons and, in the case of a fitness center, your exercise equipment. Finally, do not be afraid to include a list of exceptionable medical conditions or injuries, even death, that may occur as a result of participating in certain activities. The main and underlying objective is to explicitly express a clear intention to contract to a release of your liability in a way that is easily understandable to the reasonable person signing away his right to hold you liable for actions that may or may not be directly caused by your own negligence. Only then can one begin to protect oneself from another Makimba Mimms situation. By Alan St. Louis West Palm Beach office alan.stlouis@csklegal.com WALMART VS. DUKES: Commerciality in a Title VII Class Action On June 20, 2011, the United States Supreme Court (hereinafter Supreme Court ) decided what has been deemed as one of the largest class action lawsuits ever filed. Specifically, a class of 1.5 million female, Wal- Mart employees alleged that they suffered sexual discrimination in the workplace. The claims were brought under Title VII on the basis that Wal-Mart s local supervisors adversely exercised discretion over the plaintiffs which resulted in unequal pay and a lack of promotion. Due to the purported harm, the employees sought backpay, punitive damages, injunctive and declaratory relief from Wal-Mart. 6 spring 2012 CSK QUARTERLY

7 In this case, three named plaintiffs, Betty Dukes, Christine Kwapnoski, and Edith Arana, represented the remainder of the class members. They claimed that the decisions made by their local supervisors, pertaining to compensation and promotional matters, unequally favored their male co-workers and had a disparate impact on the female employees. It was further alleged that disparate treatment occurred because Wal-Mart had knowledge of these practices but refused to correct them. Under this theory, all of Wal-Mart s female employees, throughout the nation, suffered from the subjective decision-making of their respective supervisors at the local stores. The federal trial court certified the class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 and the appellate court approved the certification. The question before the Supreme Court, among other issues, was whether the certification was appropriate under the controlling law and factual circumstances. As stated by the Supreme Court, class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. Under the rule, a key factor is establishing commonality in the questions of law or fact pertaining to the class. In this context, the plaintiffs must establish an equal injury amongst the class members, based upon a common contention, in which the relief sought provides a remedy to the entire class. The court further explained that certification depends more upon the ability for a class to provide common answers as opposed to the mere raising of common questions. In Title VII claims, such as the subject action, an essential question is the reason for the adverse employment decision. According to the opinion, the plaintiffs sought to sue for literally millions of employment decisions at once. However, without a close relation amongst all of the individual employment decisions, the relief sought cannot yield a common answer. To establish commonality in general, plaintiffs must bridge the gap between an individual employee s claim and the existence of class members who suffered the same injury as the employee. As a first method, this may be accomplished by showing a discriminatory testing or evaluation process exercised by the company as a whole. Second, this may be establish by showing significant proof that the employer held a general policy of discrimination. The latter method applied to the plaintiffs in this case. Here, the Supreme Court found that the plaintiffs failed to meet this standard. Specifically, the employees submitted testimonial evidence from a sociological expert supporting the position that the employer had a strong corporate culture that led to sex discrimination. However, the only widespread policy this established was that the employer allow[ed] discretion by local supervisors over employment matters. The court further stated that on the surface, this was directly in contrast to a uniform practice by Wal-Mart for commonality purposes. Further, the court found that, if anything, the policy would be one that forbids the existence of such discriminatory practices. It is worth noting that the court clarified that grounds for a Title VII claim could potentially be based upon a disparate impact resulting from the discretion exercised by supervisors in an undisciplined system yielding the same effect as intentional discrimination. However, in cases such as this one in which the supervisors are allowed to determine how their decisions are made, coupled with a corporate policy against discrimination, it is more likely that the majority of supervisors make nondiscriminatory decisions for promotion and compensation matters. In addition, supervisors may subjectively rely on lawful criteria, such as an employees test scores and educational advancement, without any intent to discriminate; but nonetheless, resulting in disparity overall. Given these factors, the subjective discrimination of one supervisor is not necessarily attributable to another. The opinion also states that the plaintiffs failed to identify a common mode of exercising discretion that pervades the entire company. Significantly, the court found that in a company of Wal-Mart s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Also of importance is Wal-Mart geographical structure of roughly 3,400 stores with anywhere from 80 to 500 employees at each location. Based on these circumstances, it can be inferred that plaintiffs challenge in establishing commonality was made difficult by the enormous size and geographic nature of the employer. In short, the plaintiffs put forth statistical evidence that was insufficient. The evidence was comprised of the findings of a statistician and labor economist. According to the statistician, Wal-Mart had significant disparities between the male and female employees that could only be the result of sex discrimination. The economist found that the employer promoted a lower percentage of female employees in comparison to other competing businesses. However, the court determined that even if these disparities were indeed true at the national level, they failed to show that the employer had a policy to discriminate at the regional districts or local stores. Moreover, even if the statistical evidence showed that every one of the 3,400 local stores had discriminatory pay and promotional patterns, commonality would still be absent. In particular, the availability of qualified female employees may greatly vary from store to store. In addition, without a uniform policy in place, the promotional criteria used by each supervisor were subjective and therefore, varies from store-to-store. These factors fail to establish a commonality of issues. The court further stated that identifying a particular employment practice is necessary when a class of plaintiffs is sought to be certified. However, besides the mere existence of delegated discretion, [the plaintiffs] have identified no specific employment practice much less one that ties all their 1.5 million claims together. The anecdotal evidence also failed to establish a wide-spread policy of discrimination. Specifically, the employees filed 120 affidavits attesting to discriminatory harm. Importantly, the Supreme Court found that this merely represented a ratio of 1 to 12,500 class employees and only involved 235 Wal-Mart stores. The majority of the affidavits pertained to only six states. Additionally, half of all states were represented in only two or less affidavits and 14 states were uninvolved. Nonetheless, even if the evidence was deemed true, it could not support certification of the voluminous class members. An interesting take on the case is Justice Ginsburg s observation that the court s ruling requires anecdotal evidence in discrimination claims to be commensurate with the number of employees; or 1.5 million in this case. The majority opinion denied the CSK QUARTERLY spring

8 assertion by confirming that generally, plaintiffs are free to dictate the scope of their anecdotal evidence. However, when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Based on this analysis, in a 5-4 ruling, the Supreme Court reversed the appellate court s affirmance of the class certification. As a practical matter, an inference may reasonably be made that the ruling works to limit the size of classes in future discrimination cases. Although the court does not directly state a correlation between large class sizes and difficulty in certification, the ruling suggests that certification may have been more likely to achieve had the plaintiffs selected significantly less employees for class membership. The plaintiffs may also have fared better by narrowing their class to a smaller geographical region. In other words, plaintiffs who seek to certify a voluminous, wide-spread class do so at their own peril. THE LONG ARM OF PUNITIVE DAMAGES By Giancarlo Nicolosi Miami office giancarlo.nicolsi@csklegal.com Punitive damages are frequently sought in all types of tort claims. Punitive damages are those damages that are intended to punish or deter a defendant and others from engaging in willful or wanton conduct. Since they are designed to punish and deter, punitive damages are not used to make the plaintiff whole. As such, punitive damages do not necessarily depend upon the financial condition of the wronged party, but are rather dependent, in part, on the financial means of the party at fault who has engaged in the bad conduct. Florida requires only a showing of gross negligence and/or willful and wanton conduct on the part of a party and does not require proof that the alleged wrongdoer had the specific intention of causing the type of harm suffered by the wronged party. The wronged party must prove that the alleged wrongdoer was unusually careless and was in complete disregard for the possible gross and flagrant injurious consequences which may result from the wrongful conduct. One area where a party could be found liable for punitive damages, when at first glance the party appears to be only vicariously liable, is when they are sought against a vehicle operator and owner in an automobile negligence case. It is well settled in Florida that under the Dangerous Instrumentality doctrine, the responsibility of ensuring that a vehicle is properly operated falls on the owner of the vehicle. The Florida Supreme Court has repeatedly held that Florida s Dangerous Instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily and knowingly 8 spring 2012 CSK QUARTERLY entrusts that motor vehicle to someone whose negligent operation causes damage to another. For liability to be attributed under the Dangerous Instrumentality doctrine, the person operating the motor vehicle must be acting with the express or implied permission, knowledge, or consent of the owner. Knowledge and consent of the owner as to the use of the motor vehicle are essential elements in establishing the owner s liability and must be proven before the owner can be held liable for damages caused by the entrusted negligent driver. Punitive damages under the Dangerous Instrumentality doctrine are premised upon the theory that the one who creates the danger by entrusting the automobile to someone else is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation of that entrusted person. In Trevino v. Mobley, Florida s Fifth District Court of Appeal held that the plaintiff s claim for active negligent entrustment could result in additional liability despite already having a claim of permissive/ vicarious negligence under vicarious liability. Trevino involved a fatal accident in which 20 year old, Heather Mobley was killed when the vehicle she was driving was struck head on. Her estate brought claims against the other driver and his parents, who owned the vehicle, including claims for negligent entrustment of the vehicle. The defendants, Maria and Joel Trevino, entrusted their vehicle to their 21 year old son, Javier Trevino, who was speeding, driving without headlights and passing in a no-passing zone, when he collided head on with plaintiff s daughter, Heather, who died on impact. The trial judge directed a verdict against the plaintiff on her claim of negligent entrustment. The jury found Javier negligent and awarded actual, $5 million in non-economic damages, and $10 million in punitive damages against Javier Trevino for his active negligence and against Maria and Joel Trevino for vicarious liability. In the trial court s ruling with regards to the negligent entrustment claim, it reasoned that vicarious liability and negligent entrustment were concurrent theories of liability, that the claim of negligent entrustment imposed no additional liability, since the jury had already found Maria and Joel Trevino to be vicariously liable under the Dangerous Instrumentality Doctrine. The trial court further ruled that the claim of negligent entrustment posed the danger of unfair prejudice because it would lead to the introduction in evidence of the son s driving record. The trial court relied heavily on Clooney v. Geeting for the concurrent liability theory, However, Clooney was decided before the 1999 enactment of Florida Statute (9)(b)(3). Under Florida Statute (9)(b)3, negligent entrustment is not a concurrent theory of liability, and would thus not be subject to the statutory

9 caps applicable to ownership liability. As such, the negligent entrustment claim has the potential to increase a vehicle owner s liability for damages as a result of their own independent negligence in entrusting their vehicle. The statute limits noneconomic damages awardable against a vehicle owner for damages caused by the negligence of the permissive user. However, the statute concludes with a sentence that states: Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence. In reversing the trial court s ruling, the appellate court noted that the effect of the statute was to limit a vehicle owner s exposure for vicarious liability, but not for direct liability of the vehicle owner s own negligence in entrusting a motor vehicle to a wrongdoer. Thus, a negligent entrustment claim could subject the owner to additional liability. Therefore, Florida Statute (9)(b)3, would limit the permissive/vicarious liability of Joel and Maria Trevino to $100,000 as to non-economic damages. However, the claims for negligent entrustment against Joel and Maria Trevino, if the jury finds fault on the parents, could increase those damages as those claims were predicated on active or direct negligence on the part of the parents, Maria and Joel Trevino. And so, punitive damages can be awarded under a theory of active negligent entrustment if the jury finds that the parents conduct was grossly negligent, thus increasing the punitive damages award. OUR MILLION DOLLAR QUESTION AND ONE COURT S ANSWER By Paula Parisi Tampa office paula.parisi@csklegal.com On January 1, 2010, we presented the Million Dollar Question related to the interpretation of Florida Statute , which mandate damages caps in cases involving medical negligence. At the heart of the question was the confusion surrounding the statutory definition of practitioner. The old saying -- good questions outrank easy answers -- likely explains why it took nearly eight years after the creation of the statute for the courts to address our question. On May 27, 2011, the Eleventh Circuit United States Court of Appeals finally applied the definition of practitioner as we have been arguing it should be construed. Specifically, the court held the plain language of the statute defines a hospital, in some cases, as a practitioner and not a non-practitioner. Thus, the hospital is entitled to a lesser non-economic damages cap. Florida Statute provides for a cap of $500,000 for practitioners and a $750,000 cap for nonpractitioners in cases involving medical negligence. Fla. Stat (2003). At the forefront of this provision is the broad definition of practitioner. Pursuant to the statute, practitioner means any person licensed under chapters 458, 459, 460, 461, 462, 463, 466, 467, 486 or certified under s Id. Practitioner also means any association, corporation, firm, partnership, or other business entity under which such practitioner practices or any employee of such practitioner or entity acting in the scope of his or her employment. Practitioner also includes any person or entity for whom a practitioner is Caps on Medical Negligence vicariously liable and any person or entity whose liability is based solely on such person being vicariously liable for the actions of the practitioner. In McCall v. United States, 2011 WL (C.A. 11 Fla.), the Eleventh Circuit, the appellants argued Eglin Air Force Base Hospital should be considered a nonpractitioner because they are independently liable for their own breaches under Florida law. Id. at 4. The Eleventh Circuit applied the plain language of the statute in ruling that Eglin Hospital was a business entity whose liability was based solely on being liable for the actions of a practitioner. Id. Thus, because the Plaintiff failed to establish any direct negligence on the part of Hospital staff, the Hospital is considered a practitioner and entitled to the lower damage caps. Id. The Court limited the opinion by considering the hospital a practitioner because the Plaintiff failed to prove direct negligence of the hospital. The plain language interpretation of the statute, however, sets the stage for broader application, arising under the any association, corporation, firm, partnership, or other business entity wording. The ruling is still a huge win for hospitals and paves the way for hospitals, surgery centers, physician groups, clinics and other similar entities to argue entitlement to practitioner caps. On a separate and even more important issue, the Eleventh Circuit also ruled favorably with respect to constitutionality arguments surrounding the statute. Id. at 5. The court concluded that the cap comports with the Equal Protection and Takings Clauses of the United States Constitution and does not constitute a taking in violation of the Takings Clause of the Florida Constitution. Id. Additionally, the court granted the Plaintiff s motion to certify questions regarding remaining challenges to the cap under state constitutional law to the Florida Supreme Court. Id. at 6. While Florida medical malpractice attorneys and hospitals await the Florida Supreme Court s ruling on these issues, Cole, Scott & Kissane will continue to argue the most favorable interpretations of Florida Statute to ensure we encompass as many clients as possible under the term practitioner. We hope our good questions continue to outrank the easy answers, even if we have to wait eight years for the answers to arrive. CSK QUARTERLY spring

10 MEET ONE OF OUR ATTORNEYS KRISTYNE KENNEDY Kristyne Kennedy is an accomplished civil litigation attorney with over ten years of experience practicing employment law, including litigation, trial experience and providing clients with legal advice and counseling. Ms. Kennedy s primary area of practice is employment litigation, with experience litigating issues such as employment discrimination, sexual harassment, retaliation, benefits, whistleblower, overtime and unpaid wages, leave and disability issues, employment contracts, workplace torts, and other employment law claims under various state and federal laws. Her background also includes general civil litigation, including claims of negligence, personal injury, commercial litigation, business torts, premises liability and other civil matters. Much of her practice is devoted to employment litigation, representing clients in federal and state courts, as well as the Equal Employment Opportunity Commission ( EEOC ), Florida Commission on Human Relations ( FCHR ) and other administrative agencies investigating employer practices. She also provides clients with legal advice and counseling regarding employer policies and various workplace law issues as they arise, with an emphasis on preventive practices. She has been a member of the Florida Bar since She is the President-Elect of the OCBA, founded in 1933, the OCBA is a voluntary bar association in Orlando, Florida Kristyne Kennedy is an associate in the Orlando office. and currently has over 3,000 members. She will be sworn in as OCBA President in May 2012 May 1, 2013). (term is June 1, 2012 to SUCCESS STORIES Michael Brand and Tullio Iacono of Cole, Scott & Kissane s Miami office obtained a complete defense verdict in this premises liability case. The Plaintiffs sued Bird Square Management, Inc., for allegedly not maintaining its premises in a safe manner, and causing Mr. Gonzalez s view of the roadway to be obstructed by hedges on the property. At trial the Plaintiffs argued that the hedges, which ran parallel to the roadway at the exit to S.W. 147th Avenue (Miami-Dade County), exceeded the required maximum hedge height in the Miami-Dade County Code. After a lengthy trial, where the Plaintiffs demanded $4 million, a defense verdict was rendered in favor of our client. In addition we had previously served a Proposal for Settlement which entitles our client to recover a significant portion of its attorney s fees and costs. Michael Brand and Brandon Waas of Cole, Scott & Kissane s Miami office obtained a complete defense verdict in this personal injury case, involving a claim of alleged hearing loss and tinnitus stemming from a theatrical production presented by the Defendant that involved the use of shotgun blasts as sound effects. After a 6 day trial, and after Plaintiff demanded close to $1 million, the jury returned a defense verdict for our client. Jami Gursky and Jonathan Weiss of Cole, Scott & Kissane s Ft. Lauderdale and Miami offices obtained a complete defense verdict in this premises liability case. The Plaintiff claims she slipped and fell on a foreign substance at a shopping mall. We represented the Dolphin Mall and the cleaning company hired to clean the mall. The Plaintiff sustained an injury to her knee and later underwent arthroscopic knee surgery, and her husband made a claim for loss of consortium damages. The case was tried before a jury for 4 days, and the jury returned a complete defense verdict in 25 minutes. As a result of timely filing a Proposal for Settlement, our client is entitled to recover its attorney s fees and costs. David Bradley, James Sparkman and Brian Pita of Cole, Scott & Kissane s West Palm Beach office obtained a significant trial victory in this complicated automobile/ tractor trailer accident case. The Plaintiffs were minor passengers, ages 4 and 8, alleged to have sustained injuries including traumatic brain injury, complex seizure disorder and post traumatic stress disorder. Plaintiffs sought $36.4 million at trial. After three weeks of trial, the jury returned a total verdict of $1.2 million, and only found that the insured/defendant tractor trailer was 30% negligent, resulting in a $360,000 verdict. Sherry Schwartz and James Sparkman of Cole, Scott & Kissane s West Palm Beach Office obtained a defense verdict in this personal injury case. This case involved a chef s slip and fall down the outdoor stairwell at our clients Palm Beach home. The named Defendants were the trustees, the three sons of the primary homeowner. The Plaintiff claimed she injured her neck, shoulder, and back in the fall and she underwent shoulder surgery for a torn rotator cuff and neck surgery for a herniated disc as a result. The Plaintiff s medical bills totaled nearly $200,000. The Plaintiff also contended that she could no longer work as a chef at a loss of $19,000 per year. The defense team uncovered an extensive history of similar complaints, including three prior falls, dating back to The Plaintiff s pre-suit demand was $750,000; the offer was $10,000. The jury returned the exact amount recommended by Sherry and Jim. The Plaintiff was found 50% at fault for a net recovery of $8,000. Joe Kissane and Blake Cole of Cole, Scott & Kissane s Jacksonville office obtained a defense verdict in this automobile negligence case, where the Plaintiff claimed she suffered a traumatic brain injury. The Plaintiff asked the jury for approximately $1.4 million, not including future pain and suffering. Additionally, the Plaintiff was seeking punitive damages due to 10 spring 2012 CSK QUARTERLY

11 the Defendant driver s intoxication at the time of the accident. The Defendant admitted liability and intoxication at the start of the trial. After a 5 day trial, the jury deliberated for two hours and returned a verdict in favor of the Plaintiff in the amount of $36,400. After appropriate collateral source set-offs, the total award will likely be $13,000. Kristen Tajak of Cole, Scott & Kissane s Appellate Group recently obtained a per curiam affirmance of a trial victory in a case that was handled by Howard Scholl of Cole, Scott & Kissane s Tampa office. The primary issue on appeal was whether the trial court was correct in denying the Plaintiffs motion to remove a prospective juror for cause on the basis of bias or prejudice. The Second affirmed the trial court in all respects. John Penton of Cole, Scott & Kissane s Appellate Group obtained a complete victory in these consolidated appeals stemming from a shareholder s derivative action. Our client originally prevailed in a jury trial that found the controlling director liable for breach of fiduciary duty. However, following the subsequent accounting trial, the trial court awarded the controlling director almost a decade s worth of interest as a setoff. The interest award to the controlling director effectively negated the jury s verdict and judgment that found the controlling director liable for breach of fiduciary duty. John filed an initial appeal, asserting that the trial court erred in calculating the amount of interest. The controlling director appealed both the judgment and the attorney s fees awarded in the shareholder s derivative action. Our client prevailed on all issues in the three consolidated appeals, with the Fourth District remanding the case back to the trial court for a new determination of interest. We also prevailed on our motion for attorney s fees in the appeal. John Penton of Cole, Scott & Kissane s West Palm Beach office prevailed on an appeal in the United States Supreme Court. The subject appeal concerned a civil rights case that arose as a consequence of a debt collection. The District Court and the Eleventh Circuit Court of Appeals held that the Petitioners civil rights were not violated by the Respondents during their attempted collection of a debt. In responding to the Petition, the Respondents asserted that the Petitioners had failed to show a dispute between the Circuits or demonstrate that an important federal question was at issue. The United States Supreme Court denied the Petition for Writ of Certiorari affirming that co civil rights violation occurred. John Penton and Jonathan Vine of Cole, Scott & Kissane s Appellate obtained an affirmance of a referral to arbitration in a multi-plaintiff action seeking damages against a for-profit college for alleged fraud and misrepresentation. The Fourth District agreed with the trial judge that each of the students had signed an enrollment agreement contract with the college that contained a valid referral to arbitration of all disputes related to the Plaintiffs enrollment at the college. Questions regarding the validity and enforceability of the terms of each enrollment contract were for the arbitrator to decide. This was a major victory for the client as there is a concerted, nationwide attempt to bring these types of fraud actions against for profit career colleges, and the Plaintiffs here had national counsel directing local counsel. Tom Scott and Scott Cole of Cole, Scott & Kissane s Appellate Group obtained an affirmance of the trial court s decision in a class action lawsuit. The Plaintiff had sought review of the denial of a fire fee refund from the City of Miami, claiming the due process rights of 140 class members were violated when they were denied refunds for their failure to comply with the requirements of the class notice. The Third District affirmed the trial court s denial of a refund for the property owner on procedural grounds. Daniel Shapiro and Alison Petty of Cole, Scott & Kissane s Tampa office obtained a complete defense verdict in this automobile negligence case. Our client was a trucking company whose driver was allegedly ran a red light causing significant injuries to a passenger in the Plaintiff s vehicle. Dan and Alison presented compelling evidence that the true cause of the accident was that the Plaintiff s brother, the driver of the vehicle, himself ran the red light after driving all night without sleep. The jury agreed with our position and returned a verdict of no liability as against our client. This was a highly favorable result as the Plaintiff s attorney, given the significance of the injuries, requested that the jury return a verdict in excess of $1,000,000. Daniel Shapiro and Rhonda Beesing of Cole, Scott & Kissane s Tampa office obtained a favorable verdict in this motor vehicle accident case. The Defendant admitted liability for causing the subject accident. Following the rear end accident, the Plaintiff, a cervical spine discectomy and fusion. The Plaintiff s surgeon testified that Plaintiff would require future medical treatment for the remainder of her life. The Plaintiff s total past medical expenses exceeded $180,000. The second Plaintiff, claimed a permanent lumbar spine injury, which, allegedly ended her gymnastics career. She was expected to receive a college athletic scholarship valued at approximately $150,000. The Defendant, asserted that the majority of the past medical treatment was unreasonable and not related to the subject accident and that neither plaintiff sustained a permanent injury. The Defendant presented the testimony of two medical experts, who were both well received by the jury, as a verdict was returned in an amount less than $100,000 despite the Plaintiffs request for a verdict in excess of $1,000,000. Dan Shapiro and Jason Isaac of Cole, Scott & Kissane s Tampa office obtained a favorable verdict in this case involving a 45-year-old wedding guest who slipped and fell in cooking oil while aboard a cruise ship. The Plaintiff underwent two surgeries on her left knee and incurred over $56,000 in medical expenses that she attempted to relate to the fall. Dan and Jason successfully established that the Plaintiff s pre-existing degenerative changes and evolving complaints of pain were the cause of her pre existing medical conditions as opposed to the subject accident. The Plaintiff sought a total of $600,000 for past and future medical expenses, and past and future pain and suffering. After a 4 day trial, the jury returned a verdict awarding the Plaintiff only $7,000. Lee Cohen of Cole, Scott & Kissane s West Palm Beach office obtained a Final Judgment in favor of our client following a Bench Trial. This case arose out of a dispute involving the replacement of unit windows between our client, Lakewood at Palm Beach Condominium Association, Inc. and Keith and Lillian Larson. The Court found in favor of Lakewood at Palm Beach Condominium Association, Inc. and against the Larsons with respect to the counter-claim. Daniel Kissane of Cole, Scott & Kissane s Jacksonville office, working with Co-counsel Jim Campbell of Massachusetts, obtained a significant ruling in favor of Honda and the auto industry. On June 23, 2011 Governor Rick Scott signed into law an amendment to Florida Statute section , legislatively overruling the Florida Supreme Court CSK QUARTERLY spring

12 case of D Amario v. Ford (excluding evidence of comparative negligence in a crashworthiness product liability case). In a case involving a paraplegic Plaintiff, Honda raised a defense that the new amendment to Florida Statute section applied retroactively to all pending cases (even though the law went into effect after the accident and after the filing of the lawsuit). Plaintiff raised a constitutional challenge to this defense applying retroactively, and Plaintiff was supported by an amicus curiae brief filed by The Florida Justice Coalition. The trial Judge ruled in favor of Honda and held the new law can be constitutionally applied retroactively and was an appropriate defense notwithstanding enactment after the accident and filing of the lawsuit. We believe that this ruling will have a significant and highly favorable impact for automobile manufacturers throughout. Anne Sullivan of Cole, Scott & Kissane s Miami office obtained a successful result for our clients in an attorneys fees sanctions case when, after oral argument, the Florida Supreme Court chose not to exercise its jurisdiction to review the question of great public importance that had been certified by the Fourth District. The decision from the Florida Supreme Court declining to exercise its jurisdiction left undisturbed the favorable Fourth District decision in our client s favor. Barry Postman and Isaac Wannos of Cole, Scott & Kissane s West Palm Beach office received a defense verdict in a 9 day jury trial. The Plaintiff claimed he injured his neck, left knee, sustained a T-11 compression fracture, suffered a herniated disc in his lumbar spine, injured his left hip which required surgery, and suffered a traumatic brain injury while working out on a back machine that failed in a fitness center of a condominium association. The Plaintiff also claimed that our client was at fault for the accident because it negligently serviced and maintained the condominium association s fitness equipment. At trial, Barry and Isaac argued that our client fully complied with all requirements servicing the fitness equipment. They also argued that the back machine failed due to a design defect. In closing, Plaintiff requested the jury to award $2.4 to $3.2 million in damages. After 3 1/2 hours of deliberation, the jury returned a complete defense verdict. Greg Willis and Lonni Tessler of Cole, Scott & Kissane s Fort Lauderdale office obtained a complete defense verdict in this premises liability case. In this case, the Plaintiff suffered a comminuted wrist fracture and shoulder injuries after falling down the front porch steps of our clients single-family home, which was being used a rental property. The Plaintiff alleged that the steps were non-code compliant. According to the Plaintiff s expert, the top landing of the steps was dangerously undersized, the building code required a hand rail, the circular configuration of the stairs was a building code violation, and the edges of the stairs were not properly demarked. The jury returned a defense verdict and our clients are entitled to attorney s fees based upon a rejected Proposal for Settlement. L A W O F F I C E S MIAMI Dadeland Centre II 9150 South Dadeland Boulevard Suite 1400 P.O. Box Miami, FL Telephone: Fax: KEY WEST 617 Whitehead Street Key West, FL Telephone: Fax: ORLANDO Tower Place, Suite Summit Tower Boulevard Orlando, FL Telephone: Fax: WEST PALM BEACH 1645 Palm Beach Lakes Boulevard 2nd Floor West Palm Beach, FL Telephone: Fax: TAMPA 4301 West Boy Scout Boulevard Suite 400 Tampa, FL Telephone: Fax: FT. LAUDERDALE Lakeside Office Center 600 North Pine Island Road Suite 110 Plantation, FL Telephone: Fax: NAPLES 800 Fifth Avenue South Suite 203 Naples, FL Telephone: Fax: PENSACOLA 715 South Palafox Street Pensacola, FL Telephone: Fax: JACKSONVILLE 4686 Sunbeam Road Jacksonville, FL Telephone: Fax: BONITA SPRINGS Riverview Center Boulevard Suite 200 Bonita Springs, FL Telephone: Fax: