Archive for the ‘Florida’ Category

A Trip to the Festival – Woman Injured from Exposed Pipe on Unpaved Walkway to a Parking Lot; Issues of Fact for the Jury (FL)

August 21, 2015

Cook v. Bay Area Renaissance Festival of Largo, Inc. (Florida)

Plaintiff attended a festival organized by the defendant, and she tripped and fell over an exposed pipe on an unpaved walkway connecting the festival grounds to an overflow parking lot.  Plaintiff filed an action action against the organizer, contending that it negligently maintained the property where the incident occurred.  The defendant filed a motion for summary judgment, arguing that there was no proof that it had control over the premises where the incident occurred.  Although plaintiff was directed by festival volunteers to park in the overflow parking, there was conflicting testimony concerning whether the volunteers directed her to use the unpaved walkway.  The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the District Court of Appeal of Florida reversed the decision and remanded the matter for further proceedings.  First, the Court held that there was a genuine issue of material fact as to whether the organizer had exercised control of the unpaved area.  The Court stated “[a] party ‘who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair.'”  The defendant was clearly using the overflow parking, and there was conflicting evidence as to whether the defendant intended its invitees to use the unpaved walkway.  The Court also noted that the evidence showed that the defendant took action to remove the pipe from the area after the incident.  Such evidence suggested the defendant’s control over the premises.

Second, the Court held there was also a genuine issue of material fact as to whether the pipe was a dangerous condition, and whether warnings from the plaintiff’s husband and other attendees were sufficient to absolve the defendant from liability.  The defendant argued that the pipe was “open and obvious,” such that it did not owe her a duty to warn her about the hazard.  However, the Court explained that “even when a hazard is open and obvious, a landowner or possessor can still be held liable for failing ‘to exercise reasonable care to prevent foreseeable injury’ to invitees.”

 

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No Free Lunch (or Vacation) – Florida Supreme Court Confirms Decision to Enforce Release Despite Lack of “Negligence” Language (FL)

May 13, 2015

Sanislo v.Give the Kids the World, Inc. (Florida)

The defendant non-profit organization provided free vacations to seriously ill children and their families.  The plaintiff went with her ill child on one of the defendant’s vacations, and she suffered an injury when a wheelchair lift collapsed at a resort village.  The plaintiff filed a negligence lawsuit against the defendant, and the defendant filed a motion for summary judgment based upon a both release of liability that was included in in the wish request form filled out by the plaintiff and a liability release form signed by the plaintiff after she arrived at the resort village.  Plaintiff countered with her own motion for partial summary judgment on the defendant’s affirmative defense of release.  The trial court granted the plaintiff’s motion and denied the defendant’s motion, and the case proceeded to trial.

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Deflated

October 1, 2012

Interstate Fire & Casualty v. Abernathy (Florida)
(A minor festival attendee was injured while using an inflatable bungee run; the mother of the minor sued the club that was hosting the event; after settling with the club for millions of dollars and obtaining a judgment, the mother then filed an action against the club’s insurer for failing to provide coverage and for engaging in bad faith; the court ruled that the coverage did not extend back four days to liability for the prior known injury.)

Interstate Fire & Casualty appealed a final judgment against it awarding the injured minor more than six million dollars.  The trial court had determined that a certificate of insurance that was issued by a broker on April 18, 2007 conferred coverage on a purported additional insured (the club hosting the festival) for liability for the minor’s injury that occurred four days earlier on April 14, 2007.

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Sea Sick

September 18, 2012

Wajnstat v. Oceania Cruises, Inc. (11th Circuit – Florida)
(A passenger on a cruise ship in the Black Sea became ill and sought medical attention from the ship’s doctor; he was evacuated from the ship and received numerous surgeries; he thereafter sued the cruise line alleging negligent hiring, retention, and supervision of the ship’s doctor; the court held granted the passenger’s motion for partial summary judgment at to the cruise line’s limitation-of-liability defense.)

A cruise ship passenger sued a cruise line for negligence in connection with the ship’s doctor.  The cruise line answered the complaint and raised the affirmative defense that its liability was limited by the Athens Convention (a multilateral treaty dealing with carriage of passengers and their luggage) as incorporated by reference into the limitation-of-liability provision in the passenger’s ticket contract.  The case ended up in federal court as a result of a forum-selection clause in the ticket contract.

The cruise line filed for partial summary judgment based on the limitation-of-liability affirmative defense.  The cruise line’s motion was denied, and the passenger’s cross motion fo partial summary judgment was granted.  The cruise line then filed an interlocutory appeal.

At issue at the trial court level was whether the “non-negotiated limitation-of-liability provision was enforceable.”  Applying the “reasonable communicativeness” test, the District Court held that “the provision was not reasonably communicative because it was confusing and because it required the passengers to parse through treaties and the statutes to determine the limit’s of [defendant’s] liability.”

On appeal, the Court of Appeals ruled that the pretrial order determining applicability of the limitation-of-liability provision was not immediately appealable.

NOTE: Although this case may be specific to its facts, one lesson to be learned is the impact of detailed and convoluted limitation-of-liability language in commercial transactions.  It is particularly difficult to enforce language that requires a special understanding or the incorporation of outside documentation and information.

What a Show

August 15, 2012

Metsker v. Carefree/Scott Fetzer Company (Florida)
(A guest at a recreational vehicle [“RV”] trade show was struck by a pole in a booth for the manufacturer of RV awnings, and he sued both the manufacture and the RV trade association;  the trial court granted the manufacturer’s summary judgment motion by the Court of Appeal reversed finding triable issues of fact.)

The show in question featured displays of RV vehicles and related accessories and services. The plaintiff paid a fee to enter the show.  While he was seated in the defendant manufacturer’s booth a metal pole fell and struck him.  After plaintiff filed his complaint, the manufacturer filed its motion for summary judgment claiming that while it had rented the booth for display, it “did not construct, control, or operate” the booth.  Rather, it had independently contracted with a third party for those booth services.  As such, the manufacturer claimed it did not owe the plaintiff a duty of care.  The trial court agreed, granting the motion, and the plaintiff appealed.

On appeal, the Court explained that with regard to premises liability, “the issue of whether a party has a duty of care does not depend on ownership or title to the premises.  Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises.”  The Court further noted that “[t]wo or more parties may share control over land or business premises,” and as a result, liability “may rest upon more than one party.”

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Insurance Company “Cutz” Barbershop’s Defense

July 6, 2008

Scottsdale Insurance Company v. Cutz, LLC (Florida)
(Insurer Had No Duty to Defend Lessor of Premises in Negligent Security Lawsuit.)

In September 2003, two men were shot to death at a Cutz, LLC (Cutz) barbershop. Personal representatives of the deceased men brought suit against Cutz (the lessee) and G&G Laboratories (the lessor of the premises), seeking damages for wrongful death and negligence based upon a failure to provide security at the barbershop. Cutz was the named insured under an insurance policy issued by Scottsdale Insurance Company (Scottsdale). Both Cutz and G&G Laboratories (G&G) tendered their defense and requested indemnity from Scottsdale. Scottsdale sought a declaration from the Court that it was not responsible for G&G.

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O-U-C-H . . . . What’s That Spell?

October 24, 2007

Krathen v. School Board of Monroe County (Florida)
(High School Cheerleader Injured During Practice; Waiver and Release Signed by Parent Enforced, Negligence Claims Barred)

A high school student injured during a cheerleading practice brought a negligence action against the school board. She alleged that the school board was negligent in the following respects: (1) by failing to adequately supervise the cheerleading practice; (2) by conducting the practice without adequate preparation; (3) by using inexperienced or untrained personnel to supervise the practice; (4) by failing to place protective mats on the floor so as to cushion the impact; (5) by conducting the practice without the coach being present; and (6) by failing to abide by or follow appropriate school board policies and/or procedures relating to extracurricular activities. The defendant school board filed a motion for summary judgment based upon the “Consent and Release of Liability Certificate” signed by the cheerleader and her parents prior to her participation. The trial court granted the motion, and the cheerleader appealed.

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Parens Patriae (“Father of the People”)

September 18, 2007

Fields v. Kirton (Florida)
(ATV Fatality; Court of Appeal Makes a Statement Against Parents’/Guardians’ Rights to Waive/Release Negligence Liability on Behalf of Minor Participants in Recreation Activities; Conflict Created in the Law)

A fourteen (14) year old boy died in an all terrain vehicle (“ATV”) accident. His father had taken the boy to the defendant motorsports park without the knowledge of the boy’s mother. In order to gain entry into the park, the father signed a release and waiver of liability, assumption of risk, and indemnity agreement on behalf of his son, which (by its terms) protected the park from negligence-based liability. Thereafter, the boy attempted to complete a jump, but was ejected from the ATV. The ATV landed on top of him. He tried to get up, but collapsed and died. The boy had unsuccessfully attempted the same jump one month earlier, resulting in a fractured rib and mild concussion.

The boy’s parents filed a lawsuit against the park and its owners/operators, alleging negligence in the operation of the facility. The defendants filed a motion for summary judgment based upon the release agreement signed by the boy’s father. The trial court granted the defendants’ motion and the plaintiffs appealed. On appeal, the court reversed the trial court’s decision.

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Ignorance–Not So Bliss

July 11, 2007

Tassinari v. Key West Water Tours (Florida-UNPUBLISHED)
(Personal Watercraft Collision Victims Sue Alleging Violation of Florida Watercraft Statutes; Federal Court Finds Negligence Per Se; Waiver and Release Ineffective Regarding Violations of Statute)

The defendant watercraft rental agency rented a personal watercraft to the plaintiffs near Key West, Florida. The agency then took a group of personal watercraft renters, including the plaintiffs and third-party defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters. During the tour, the watercraft operated by Wilkerson collided with the watercraft operated by plaintiffs, injuring the plaintiffs.

After a lawsuit was filed, the agency filed a motion for summary judgment arguing: (1) it was entitled to exoneration from liability because there was no evidence of negligence or unseaworthiness; (2) alternatively, it was entitled to have its liability limited to the value of the watercraft (approximately $3,000.00) because it was without privity or knowledge of any negligence or unseaworthiness; (3) Florida statutory law did not apply; and (4) the claim of one plaintiff claims was barred by the waiver and “hold harmless” provisions of the rental agreement that he signed. The plaintiffs also filed a motion for summary judgment, arguing that they were entitled to judgment because the agency violated certain Florida State statutes making the agency negligent per se. The plaintiffs also argue that if the agency is negligent per se, then the agency was not entitled to have its liability limited to the value of the watercraft.

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