Monthly Archives: May 2012

CSK Makes Further Advances With Technology — Announcing Video Conferencing Capabilities

CSK announces video conferencing capabilities from any office to any client — up to 13 locations.  CSK is constantly innovating to ensure that it is offering its clients all necessary services in the most cost-effective manner.  We also can take video depositions in any of our 10 offices.  Additionally, CSK always concentrates on advancing itself with the newest and latest technologies.  Please contact us for additional information.

Right Waiver? No Problem. Wrong Waiver? Problem.

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 employees, from lawsuits similar to that brought by Makimba Mimms.

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, 511 (Fla. 1973); see also Sunny Isles Marina, 706 So. 2d at 922.

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.”

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 508-509.

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. 4th DCA 1984); see also Banfield v. Louis, 589 So. 2d 441 (Fla. 4th 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. 4th 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. 5th 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/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.


Walmart vs. Dukes

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.

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 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

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.

Floridarequires 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 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 (providing the best accident attorney’s assistance).  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 324.021(9)(b)(3).

Under Florida Statute 324.021(9)(b)3, negligent entrustment is not a concurrent theory of liability, and would thus not be subject to the statutory 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 non-economic 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 324.021(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.


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 § 768.0755 Cannot be Applied Retroactively to Lawsuits filed prior to July 1, 2010

Although Florida courts are split on whether Florida Statute § 768.0755 (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. SC08-1616, 2011 WL 2652189, (Fla. 2011) upholding Williams v. American Optical Co., 985 So. 2d 23 (4th DCA 2008).  This ruling makes it very unlikely that § 768.0755 will apply to cases filed before July 1, 2010.

Since being enacted effective July 1, 2010, Florida state and federal courts have not consistently ruled whether § 768.0755 is retroactive as to incidents that occurred before July 1, 2010.  Notably, § 768.0755 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, 2010.”  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 4318795, (N.D. Fla. 2010), found this statute to be procedural because the statute that it overturned, Florida Statute §  766.01710, 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 Floridatrial 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. § 774.201-09 (2005)), which became effective in 2005. 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 asbestos-related 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 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 § 768.0755, 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 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.

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 action, that cause of action cannot be impaired by subsequent legislation.  Logically, if Florida Statute § 768.0755 (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, § 768.0755 cannot be applied retroactively.

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 § 768.0755 is a welcome change, to pre-Owens jurisprudence, it will likely not apply to cases filed before July 1, 2010.


When It’s Necessary to Present Expert Testimony of Industry Standard to Establish the Standard of Care in Negligence Actions: The Case of the Roofer

The United States Court of Appeals for the Eleventh Circuit recently issued an opinion which has, in essence, confirmed the steps necessary in establishing a negligence action against a roofer in Florida.  While the standard of care necessary to prove whether a roof was negligent is a seemingly simple, everyday legal concept, proving it up is an altogether more challenging idea.

In 2007, Hawaiian Inn Beach Resort (“Hawaiian”), a Florida condominium, contracted with Island Dream Homes (“IDH”) for roof repair.  While IDH was conducting the repairs, a large stone veneer wall fell, causing $231,467.41 in property damage.  After paying Hawaiian for the damage under its property insurance policy, Hawaiian’s insurer, Insurance Company of the West (“ICW”), brought a subrogation action against IDH for negligence.  At the close of ICW’s case, the district court granted IDH’s motion for judgment as a matter of law, holding that no reasonable jury could find that IDH was negligent because ICW failed to present any evidence on the standard of care in the roofing industry.

IDH, in an effort to stop the roof leak at the south side of the reception area, began to install certain flashing to redirect water off the roof.  IDH presented evidence that, pursuant to roofing guidelines and the Florida Building Code, it was required to cut through the exterior veneer of of the building to reach a structural wall.  Prior to performing this cut of a several decades old, four (4) to six (6) inch wall, IDH failed to test the thickness of the veneer, perform tests on the structural integrity of the wall, review the building’s original plans, or consult with an engineer.  ICW took the position that IDH was negligent in failing to take these steps, however, ICW did not present evidence that these steps are customary or standard in the roofing industry.

At the close of ICW’s case, the district court granted IDH’s judgment as a matter of law, holding that ICW failed to present evidence that IDH breached the standard of care “that a roofer would exercise under the circumstances.”  ICW contends that the court erred by applying a “professional” standard of care in [the] case.”  Specifically, ICW argued that roofers are not “professionals” under Florida law, and, thus, IDH should be held only to the standard of an ordinary person, rather than to the standard of a professional.

The Eleventh Circuit opined that the problem with ICW’s argument is that roofers are not ordinary people who happened to be working on a roof – they are trained roofers. Accordingly, ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.  The Court further pointed out that ICW’s interpretation of Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999) was misplaced.  Ultimately, the Court opined that Morainsais does not stand for the proposition that only persons engaging in vocations that require a four-year college degree may be held to a “standard of care used by similar professionals in the community under similar circumstances.” But the Court ruled that “regardless of whether roofers are considered ‘professionals’ in Florida, however, ICW was required to present evidence on the standard of care in the roofing industry – either by expert testimony or by presenting testimony of roofing custom.” If at trial, and the Plaintiff fails to introduce evidence of the standard of care for a roofer, judgment as a matter of law, as is the case here, may be appropriate.

The Dark Side of Building Green

Building green is the practice of reducing the negative effects construction has on the environment by increasing the efficiency with which buildings use and consume resources (energy, water, and materials). In addition to reducing the impact the building has on the environment, green building is also intended to reduce the project’s impact on human health throughout the complete building life cycle, by utilizing better design, construction, operation, maintenance, and removal techniques. This is accomplished, in part, by using sustainable materials, by covering the floors with tile instead of carpet to reduce the existence of allergens and other airborne toxins, building in a manner that does not waste space, using renewable energy sources, utilizing larger windows to allow more natural light, building in a manner that takes advantage of the site (i.e., shade from trees), using LED lighting products and thoroughly insulating the project.

However, it has recently been discovered that there is a dark side to building green. For example, the very methods intended to enhance a building’s performance, such as building solid airtight structures, prevents a building from breathing and can actually make a building highly susceptible to moisture and/or mold problems during its first few years of operation. This is because if no air goes in the building, no air goes out. While this is easily treated and/or prevented, it requires residents and other occupants of green buildings to do their part in reducing the chances of mold growing in the units by opening windows on a regular basis and in some rare instances bringing in dehumidifiers.

In addition, the cost to build in a green manner may increase the cost of construction by 10%-20%; while these initial costs are intended to be offset by the human health benefits and reduced cost to operate the completed project (i.e., using less energy and water) that is not always the case and the cost to construct is not offset by the desired efficiency savings.

In conclusion, it is critical that well established maintenance plans are established, desired efficiency ratings are properly defined, budgeted, and contracted for and an overall “green plan” is in effect prior to the commencement of the project.