39 Fla. L. Weekly D446a
Torts — Premises liability — Slip and fall — Transitory
foreign substance on floor — Action against shopping mall and cleaning and
maintenance service hired by mall for injuries sustained when plaintiff slipped
and fell on clear, slippery substance on floor as she was shopping — No error
in holding that 2010 statute expressly requiring a plaintiff who has slipped and
fallen on a transitory foreign substance in a business establishment to prove
that business establishment had actual or constructive knowledge of the
dangerous condition does not apply retroactively to accident that occurred prior
to statute’s effective date — Conflict certified — Jurors — Post-verdict
interview — Nondisclosure of prior litigation — Trial court abused its
discretion when it denied post-verdict interview of jurors who had been involved
in prior litigation but who categorically answered that they had not been
involved in prior litigation in response to a clear question posed by the court
— Further, rule requires that trial court conduct hearing prior to denying
motion to interview jurors if motion is at least facially valid — Joint and
several liability — Trial court erred by refusing to hold mall owner liable for
negligence attributed to service and maintenance company, as statute imposes
non-delegable duty of care on business owners to maintain premises in reasonably
safe condition for invitees — Amended complaint sufficiently pleaded claim for
breach of non-delegable duty by mall owner — Finding of agency is not required
to impose liability against premises owner for breach of non-delegable duty —
Although jury instructions and verdict form directed jury to apportion
negligence between mall owner and service company, it was not improper to impose
liability against mall owner for negligence attributed to service company
because, although owner is directly liable to plaintiff for negligence
attributed to service company, service company was not necessarily liable to
plaintiff for negligence attributed to owner — Remand for juror interviews and
determination whether new trial is required
foreign substance on floor — Action against shopping mall and cleaning and
maintenance service hired by mall for injuries sustained when plaintiff slipped
and fell on clear, slippery substance on floor as she was shopping — No error
in holding that 2010 statute expressly requiring a plaintiff who has slipped and
fallen on a transitory foreign substance in a business establishment to prove
that business establishment had actual or constructive knowledge of the
dangerous condition does not apply retroactively to accident that occurred prior
to statute’s effective date — Conflict certified — Jurors — Post-verdict
interview — Nondisclosure of prior litigation — Trial court abused its
discretion when it denied post-verdict interview of jurors who had been involved
in prior litigation but who categorically answered that they had not been
involved in prior litigation in response to a clear question posed by the court
— Further, rule requires that trial court conduct hearing prior to denying
motion to interview jurors if motion is at least facially valid — Joint and
several liability — Trial court erred by refusing to hold mall owner liable for
negligence attributed to service and maintenance company, as statute imposes
non-delegable duty of care on business owners to maintain premises in reasonably
safe condition for invitees — Amended complaint sufficiently pleaded claim for
breach of non-delegable duty by mall owner — Finding of agency is not required
to impose liability against premises owner for breach of non-delegable duty —
Although jury instructions and verdict form directed jury to apportion
negligence between mall owner and service company, it was not improper to impose
liability against mall owner for negligence attributed to service company
because, although owner is directly liable to plaintiff for negligence
attributed to service company, service company was not necessarily liable to
plaintiff for negligence attributed to owner — Remand for juror interviews and
determination whether new trial is required
PEMBROKE LAKES MALL LTD., a Florida Corporation; and MILLARD MALL SERVICES,
LLC, a Florida Corporation, Appellants, v. JUNE MCGRUDER, Appellee. 4th
District. Case No. 4D11-4005. February 26, 2014. Appeal and cross-appeal from
the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert
A. Rosenberg, Judge; L.T. Case No. 10-021317 CACE (13). Counsel: Edward G.
Guedes and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole &
Boniske, P.L., Coral Gables, and Andrew S. Connell, Jr. of Litchfield Cavo, LLP,
Fort Lauderdale, for appellants. Bard D. Rockenbach and Nichole J. Segal of
Burlington & Rockenbach, P.A., West Palm Beach, and Dallas A. Robinson of
Kanner & Pintaluga, P.A., Delray Beach, for appellee.
LLC, a Florida Corporation, Appellants, v. JUNE MCGRUDER, Appellee. 4th
District. Case No. 4D11-4005. February 26, 2014. Appeal and cross-appeal from
the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert
A. Rosenberg, Judge; L.T. Case No. 10-021317 CACE (13). Counsel: Edward G.
Guedes and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole &
Boniske, P.L., Coral Gables, and Andrew S. Connell, Jr. of Litchfield Cavo, LLP,
Fort Lauderdale, for appellants. Bard D. Rockenbach and Nichole J. Segal of
Burlington & Rockenbach, P.A., West Palm Beach, and Dallas A. Robinson of
Kanner & Pintaluga, P.A., Delray Beach, for appellee.
(Ciklin, J.) Pembroke Lakes Mall Ltd. (“Pembroke Lakes”), and Millard Mall
Services, LLC (“Millard”), appeal the final judgment awarding June McGruder
$269,049.50 following a slip and fall accident. Pembroke Lakes and Millard raise
four issues: (1) the trial court erred by denying a motion for directed verdict,
(2) the trial court erred by determining section 768.0755, Florida Statutes
(2010) did not apply retroactively, (3) the trial court abused its discretion by
denying a motion for mistrial, and (4) the trial court abused its discretion by
denying a post-verdict motion to conduct juror interviews. McGruder
cross-appeals, arguing the trial court erred by refusing to hold Pembroke Lakes
jointly and severally liable for the negligence the jury attributed to Millard.
We conclude the trial court properly denied the Mall’s motion for directed
verdict and the court did not abuse its discretion by denying the motion for
mistrial following McGruder’s improper arguments. We also affirm the trial
court’s decision to not apply section 768.0755 retroactively, and we certify
conflict with the Third District on that issue. We reverse on the issues of the
juror interviews and the cross-appeal, and remand for the court to allow
Pembroke Lakes and Millard to conduct interviews of the jurors.
Services, LLC (“Millard”), appeal the final judgment awarding June McGruder
$269,049.50 following a slip and fall accident. Pembroke Lakes and Millard raise
four issues: (1) the trial court erred by denying a motion for directed verdict,
(2) the trial court erred by determining section 768.0755, Florida Statutes
(2010) did not apply retroactively, (3) the trial court abused its discretion by
denying a motion for mistrial, and (4) the trial court abused its discretion by
denying a post-verdict motion to conduct juror interviews. McGruder
cross-appeals, arguing the trial court erred by refusing to hold Pembroke Lakes
jointly and severally liable for the negligence the jury attributed to Millard.
We conclude the trial court properly denied the Mall’s motion for directed
verdict and the court did not abuse its discretion by denying the motion for
mistrial following McGruder’s improper arguments. We also affirm the trial
court’s decision to not apply section 768.0755 retroactively, and we certify
conflict with the Third District on that issue. We reverse on the issues of the
juror interviews and the cross-appeal, and remand for the court to allow
Pembroke Lakes and Millard to conduct interviews of the jurors.
Facts
In 2008, June McGruder went to a shopping mall to purchase clothing. The mall
was owned by Pembroke Lakes, which contracted with Millard to clean and maintain
the premises. As McGruder walked through the mall, she slipped and fell on a
clear, slippery substance on the floor. McGruder sustained injuries resulting
from the fall and received medical treatment for the injuries.
was owned by Pembroke Lakes, which contracted with Millard to clean and maintain
the premises. As McGruder walked through the mall, she slipped and fell on a
clear, slippery substance on the floor. McGruder sustained injuries resulting
from the fall and received medical treatment for the injuries.
In 2010, McGruder sued Pembroke Lakes and Millard for negligence in failing
to warn McGruder of the spill, allowing the spill to remain on the floor, and
failing to have a proper maintenance and clean-up plan in place to prevent
spills from remaining on the floor. Before trial, Pembroke Lakes and Millard
moved for a determination that section 768.0755, Florida Statutes (2010),
applied retroactively and would be the operative statute for the trial. The
court denied the motion, and determined that the statute in effect at the time
of the accident, section 768.0710, Florida Statutes (2008), would apply in the
trial.1
to warn McGruder of the spill, allowing the spill to remain on the floor, and
failing to have a proper maintenance and clean-up plan in place to prevent
spills from remaining on the floor. Before trial, Pembroke Lakes and Millard
moved for a determination that section 768.0755, Florida Statutes (2010),
applied retroactively and would be the operative statute for the trial. The
court denied the motion, and determined that the statute in effect at the time
of the accident, section 768.0710, Florida Statutes (2008), would apply in the
trial.1
The case proceeded to trial in 2011. During voir dire, the trial court asked
each prospective juror: “Have you or any member of your family ever participated
in a lawsuit as a party or a witness or in some other capacity?” The court
clarified that the potential jurors did not need to disclose divorces. Four
prospective jurors who eventually served on the jury, Angel, Rhonda, Jorge, and
Audrey,2 answered they had not
participated in a lawsuit.
each prospective juror: “Have you or any member of your family ever participated
in a lawsuit as a party or a witness or in some other capacity?” The court
clarified that the potential jurors did not need to disclose divorces. Four
prospective jurors who eventually served on the jury, Angel, Rhonda, Jorge, and
Audrey,2 answered they had not
participated in a lawsuit.
At the conclusion of trial, the jury returned a verdict finding Pembroke
Lakes and Millard negligent for the accident, and finding that McGruder was not
comparatively negligent. The jury awarded McGruder $269,049.50 for past medical
expenses, future medical expenses, and pain and suffering. The jury then
assigned fifty percent liability each to Pembroke Lakes and Millard.
Lakes and Millard negligent for the accident, and finding that McGruder was not
comparatively negligent. The jury awarded McGruder $269,049.50 for past medical
expenses, future medical expenses, and pain and suffering. The jury then
assigned fifty percent liability each to Pembroke Lakes and Millard.
Pembroke Lakes and Millard filed a post-verdict motion seeking to avoid a
judgment in favor of McGruder on several grounds. Pembroke Lakes and Millard
argued their motion for directed verdict should have been granted because
McGruder failed to show that Pembroke Lakes and Millard had actual or
constructive knowledge of the spill or that Pembroke Lakes and Millard breached
their duties of care under either sections 768.0710 or 768.0755. Pembroke Lakes
and Millard also argued their motion to have section 768.0755 apply
retroactively and their motion for mistrial should have been granted. Pembroke
Lakes and Millard also moved to conduct juror interviews on the grounds that
certain jurors had failed to disclose their involvement in previous litigation.
Pembroke Lakes and Millard provided Broward County Clerk of Court records which
indicated juror Angel failed to disclose four eviction and small claims cases
during the ten years before the McGruder trial, Rhonda failed to disclose she
was the defendant in a civil case in 1991, Jorge failed to disclose two personal
injury protection matters, a mortgage foreclosure case, and a domestic violence
case during the ten years before trial, and Audrey failed to disclose that she
was the defendant in a civil case in 2008 and a small claims case in 1998.
judgment in favor of McGruder on several grounds. Pembroke Lakes and Millard
argued their motion for directed verdict should have been granted because
McGruder failed to show that Pembroke Lakes and Millard had actual or
constructive knowledge of the spill or that Pembroke Lakes and Millard breached
their duties of care under either sections 768.0710 or 768.0755. Pembroke Lakes
and Millard also argued their motion to have section 768.0755 apply
retroactively and their motion for mistrial should have been granted. Pembroke
Lakes and Millard also moved to conduct juror interviews on the grounds that
certain jurors had failed to disclose their involvement in previous litigation.
Pembroke Lakes and Millard provided Broward County Clerk of Court records which
indicated juror Angel failed to disclose four eviction and small claims cases
during the ten years before the McGruder trial, Rhonda failed to disclose she
was the defendant in a civil case in 1991, Jorge failed to disclose two personal
injury protection matters, a mortgage foreclosure case, and a domestic violence
case during the ten years before trial, and Audrey failed to disclose that she
was the defendant in a civil case in 2008 and a small claims case in 1998.
The trial court denied Pembroke Lakes and Millard’s post-verdict motion
without a hearing.
without a hearing.
McGruder moved to have Pembroke Lakes be held jointly and severally liable
for the negligence attributed to Millard. McGruder argued Pembroke Lakes owed a
non-delegable duty of care to McGruder, and that Pembroke Lakes could not reduce
its liability by contracting with Millard to perform mall maintenance. The court
denied the motion and split the verdict evenly in the judgment, obligating
Pembroke Lakes and Millard to pay McGruder $134,524.75 each.
for the negligence attributed to Millard. McGruder argued Pembroke Lakes owed a
non-delegable duty of care to McGruder, and that Pembroke Lakes could not reduce
its liability by contracting with Millard to perform mall maintenance. The court
denied the motion and split the verdict evenly in the judgment, obligating
Pembroke Lakes and Millard to pay McGruder $134,524.75 each.
Pembroke Lakes appeals the denial of its post-verdict motion. We affirm the
trial court’s decisions regarding the directed verdict and the mistrial without
discussion.
trial court’s decisions regarding the directed verdict and the mistrial without
discussion.
Retroactive Application of Section 768.0755
We first address the issue of whether section 768.0755, Florida Statutes
(2010), applies retroactively. Whether a new statute applies retroactively is a
pure question of law, subject to de novo review. Smiley v. State, 966 So.
2d 330, 333 (Fla. 2007).
(2010), applies retroactively. Whether a new statute applies retroactively is a
pure question of law, subject to de novo review. Smiley v. State, 966 So.
2d 330, 333 (Fla. 2007).
We begin with an overview of slip and fall cases in Florida. “All premises
owners owe a duty to their invitees to exercise reasonable care to maintain
their premises in a safe condition.” Owens v. Publix Supermarkets, Inc.,
802 So. 2d 315, 320 (Fla. 2001) (citation omitted). Before 2001, Florida law
required a person who slipped and fell on a transitory foreign substance to
prove that the premises owner had actual or constructive knowledge of the
dangerous condition to successfully assert a cause of action against the owner.
Id. (citation omitted). In 2001, after a thorough discussion of the
problems associated with requiring a plaintiff to prove the owner’s knowledge
and the approaches taken by foreign jurisdictions, the Florida Supreme Court
held:
owners owe a duty to their invitees to exercise reasonable care to maintain
their premises in a safe condition.” Owens v. Publix Supermarkets, Inc.,
802 So. 2d 315, 320 (Fla. 2001) (citation omitted). Before 2001, Florida law
required a person who slipped and fell on a transitory foreign substance to
prove that the premises owner had actual or constructive knowledge of the
dangerous condition to successfully assert a cause of action against the owner.
Id. (citation omitted). In 2001, after a thorough discussion of the
problems associated with requiring a plaintiff to prove the owner’s knowledge
and the approaches taken by foreign jurisdictions, the Florida Supreme Court
held:
[T]he existence of a foreign substance on the floor of a business
premises that causes a customer to fall and be injured is not a safe condition
and the existence of that unsafe condition creates a rebuttable presumption that
the premises owner did not maintain the premises in a reasonably safe
condition.
Thus, once the plaintiff establishes that he or she fell as a result
of a transitory foreign substance, a rebuttable presumption of negligence
arises. At that point, the burden shifts to the defendant to show by the greater
weight of evidence that it exercised reasonable care in the maintenance of the
premises under the circumstances.
Owens, 802 So. 2d at 331.
In 2002, apparently in response to Owens, the Florida Legislature
enacted section 768.0710, Florida Statutes (2002), establishing the “Burden of
proof in claims of negligence involving transitory foreign objects or substances
against persons or entities in possession or control of business premises.” The
statute in effect at the time McGruder slipped and fell provided:
enacted section 768.0710, Florida Statutes (2002), establishing the “Burden of
proof in claims of negligence involving transitory foreign objects or substances
against persons or entities in possession or control of business premises.” The
statute in effect at the time McGruder slipped and fell provided:
(1) The person or entity in possession or control of business
premises owes a duty of reasonable care to maintain the premises in a reasonably
safe condition for the safety of business invitees on the premises, which
includes reasonable efforts to keep the premises free from transitory foreign
objects or substances that might foreseeably give rise to loss, injury, or
damage.
(2) In any civil action for negligence involving loss, injury, or
damage to a business invitee as a result of a transitory foreign object or
substance on business premises, the claimant shall have the burden of proving
that:
(a) The person or entity in possession or control of the business
premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business
premises acted negligently by failing to exercise reasonable care in the
maintenance, inspection, repair, warning, or mode of operation of the business
premises. Actual or constructive notice of the transitory foreign object or
substance is not a required element of proof to this claim. However, evidence of
notice or lack of notice offered by any party may be considered together with
all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the
loss, injury, or damage.
§ 768.0710, Fla. Stat. (2008).
Thus, the legislature removed the burden-shifting aspects of the Owens
decision, and returned the pre-Owens rule providing that the
plaintiff had the burden of proving the premises owner was negligent.
Nonetheless, the legislature maintained the Florida Supreme Court’s decision to
remove the owner’s actual or constructive knowledge as “a required element of
proof to this claim.” See § 768.0710(2)(b), Fla. Stat. (2008).
decision, and returned the pre-Owens rule providing that the
plaintiff had the burden of proving the premises owner was negligent.
Nonetheless, the legislature maintained the Florida Supreme Court’s decision to
remove the owner’s actual or constructive knowledge as “a required element of
proof to this claim.” See § 768.0710(2)(b), Fla. Stat. (2008).
Another and substantial revision was enacted in 2010. The legislature
repealed section 768.0710 and replaced it with section 768.0755, Florida
Statutes (2010) and therein provided an effective date of July 1, 2010. In
revising the law and repealing section 768.0710, the legislature did not state
the new statute should apply retroactively. Section 768.0755 is entitled
“Premises liability for transitory foreign substances in a business
establishment” and provides:
repealed section 768.0710 and replaced it with section 768.0755, Florida
Statutes (2010) and therein provided an effective date of July 1, 2010. In
revising the law and repealing section 768.0710, the legislature did not state
the new statute should apply retroactively. Section 768.0755 is entitled
“Premises liability for transitory foreign substances in a business
establishment” and provides:
(1) If a person slips and falls on a transitory foreign substance in
a business establishment, the injured person must prove that the business
establishment had actual or constructive knowledge of the dangerous condition
and should have taken action to remedy it. Constructive knowledge may be proven
by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that,
in the exercise of ordinary care, the business establishment should have known
of the condition; or
(b) The condition occurred with regularity and was therefore
foreseeable.
(2) This section does not affect any common-law duty of care owed by
a person or entity in possession or control of a business premises.
§ 768.0755, Fla. Stat. (2010).
The most significant change between sections 768.0710 and 768.0755 concerned
prior notice of a dangerous condition. The older 2002 statute expressly stated
actual or constructive notice was not “a required element of proof to this
claim,” but the new 2010 statute expressly stated the plaintiff “must prove that
the business establishment had actual or constructive knowledge of the dangerous
condition.” Additionally, the new statute does not contain any language
regarding the owner’s negligent maintenance, inspection, repair, warning, or
mode of operation.
prior notice of a dangerous condition. The older 2002 statute expressly stated
actual or constructive notice was not “a required element of proof to this
claim,” but the new 2010 statute expressly stated the plaintiff “must prove that
the business establishment had actual or constructive knowledge of the dangerous
condition.” Additionally, the new statute does not contain any language
regarding the owner’s negligent maintenance, inspection, repair, warning, or
mode of operation.
With that overview, we turn now to whether section 768.0755 applies
retroactively. In Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA
2013), the Third District recently analyzed this issue and determined that the
section applies retroactively. While we agree with the way the Kenz court
framed the issue, we disagree with the court’s conclusion.
retroactively. In Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA
2013), the Third District recently analyzed this issue and determined that the
section applies retroactively. While we agree with the way the Kenz court
framed the issue, we disagree with the court’s conclusion.
The Florida Supreme Court has set a two-prong test for determining whether a
statute applies retroactively: “ ‘First, the Court must ascertain whether the
Legislature intended for the statute to apply retroactively. Second, if such an
intent is clearly expressed, the Court must determine whether retroactive
application would violate any constitutional principles.’ ” Fla. Ins. Guar.
Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 195 (Fla. 2011) (quoting
Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla.
2010)). As to the first prong, legislative intent, the legislature gave no
indication in section 768.0755 that the statute was to be applied retroactively.
statute applies retroactively: “ ‘First, the Court must ascertain whether the
Legislature intended for the statute to apply retroactively. Second, if such an
intent is clearly expressed, the Court must determine whether retroactive
application would violate any constitutional principles.’ ” Fla. Ins. Guar.
Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 195 (Fla. 2011) (quoting
Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla.
2010)). As to the first prong, legislative intent, the legislature gave no
indication in section 768.0755 that the statute was to be applied retroactively.
Even in the absence of legislative indication that a statute should apply
retroactively, procedural and remedial3
statutes “should be applied to pending cases in order to fully effectuate the
legislation’s intended purpose.” Arrow Air, Inc. v. Walsh, 645 So. 2d
422, 424 (Fla. 1994) (citation omitted). The general rule against retroactive
application of statutes does not apply to procedural or remedial changes. See
Smiley, 966 So. 2d at 334 (citing City of Lakeland v. Catinella, 129
So. 2d 133, 136 (Fla. 1961)); State Farm Mut. Auto. Ins. Co. v. Laforet,
658 So. 2d 55, 61 (Fla. 1995) (“The general rule is that a substantive statute
will not operate retrospectively absent clear legislative intent to the
contrary, but that a procedural or remedial statute is to operate
retrospectively.” (citations omitted)).
retroactively, procedural and remedial3
statutes “should be applied to pending cases in order to fully effectuate the
legislation’s intended purpose.” Arrow Air, Inc. v. Walsh, 645 So. 2d
422, 424 (Fla. 1994) (citation omitted). The general rule against retroactive
application of statutes does not apply to procedural or remedial changes. See
Smiley, 966 So. 2d at 334 (citing City of Lakeland v. Catinella, 129
So. 2d 133, 136 (Fla. 1961)); State Farm Mut. Auto. Ins. Co. v. Laforet,
658 So. 2d 55, 61 (Fla. 1995) (“The general rule is that a substantive statute
will not operate retrospectively absent clear legislative intent to the
contrary, but that a procedural or remedial statute is to operate
retrospectively.” (citations omitted)).
Thus, the issue is whether section 768.0755 is procedural or substantive.
“[S]ubstantive law prescribes duties and rights and procedural law concerns the
means and methods to apply and enforce those duties and rights.” Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citation
omitted).
“[S]ubstantive law prescribes duties and rights and procedural law concerns the
means and methods to apply and enforce those duties and rights.” Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citation
omitted).
The retroactive application of statutes also implicates constitutional
concerns. See Laforet, 658 So. 2d at 61 (“[T]his Court has refused to
apply a statute retroactively if the statute impairs vested rights, creates new
obligations, or imposes new penalties.” (citations omitted)). An accrued cause
of action constitutes a vested property right, and a statute cannot be applied
retroactively in a way that eliminates a party’s vested property right. See
Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 125-26 (Fla. 2011).
concerns. See Laforet, 658 So. 2d at 61 (“[T]his Court has refused to
apply a statute retroactively if the statute impairs vested rights, creates new
obligations, or imposes new penalties.” (citations omitted)). An accrued cause
of action constitutes a vested property right, and a statute cannot be applied
retroactively in a way that eliminates a party’s vested property right. See
Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 125-26 (Fla. 2011).
In American Optical, the Florida Supreme Court assessed the
constitutionality of retroactive application of a law that required plaintiffs
to show particular manifestations of harm caused by asbestos exposure in order
to successfully assert an asbestos-related cause of action. Id. at 130.
The Court found that the requirement of certain physical impairments was a
change from the common law, which only required “changes in the lung evidencing
asbestos-related disease.” Id. at 127.
constitutionality of retroactive application of a law that required plaintiffs
to show particular manifestations of harm caused by asbestos exposure in order
to successfully assert an asbestos-related cause of action. Id. at 130.
The Court found that the requirement of certain physical impairments was a
change from the common law, which only required “changes in the lung evidencing
asbestos-related disease.” Id. at 127.
The American Optical Court concluded the asbestos statute could not be
applied retroactively because there were plaintiffs who had accrued causes of
action that would be “completely abolish[ed]” if the statute were applied
retroactively. Id. at 133. The Court noted that “statutes that operate to
abolish or abrogate a preexisting right, defense, or cause of action cannot be
applied retroactively.” Id. (citing Wiley v. Roof, 641 So. 2d 66,
68-69 (Fla. 1994)). The Court decided that application of the asbestos law to
plaintiffs who had an already accrued cause of action was “impermissible because
it violates the due process clause of the Florida Constitution.” Id.
applied retroactively because there were plaintiffs who had accrued causes of
action that would be “completely abolish[ed]” if the statute were applied
retroactively. Id. at 133. The Court noted that “statutes that operate to
abolish or abrogate a preexisting right, defense, or cause of action cannot be
applied retroactively.” Id. (citing Wiley v. Roof, 641 So. 2d 66,
68-69 (Fla. 1994)). The Court decided that application of the asbestos law to
plaintiffs who had an already accrued cause of action was “impermissible because
it violates the due process clause of the Florida Constitution.” Id.
In Kenz, the Third District thoroughly analyzed these principles
and concluded:
and concluded:
[S]ection 768.0755 [the new 2010 statute] does not operate to alter
a prima facie case for a negligence claim. Here, a plaintiff who has an accrued
cause of action under section 768.0710 [the older 2002 statute] because of an
injury due to a transitory foreign substance or object in a business
establishment, continues to have the same cause of action under 768.0755 —
unlike the claims discussed in American Optical, the cause of action
continues to exist. Actual or constructive knowledge is not a “new”
required element of a prima facie case under section 768.0755; rather, it
concerns evidence, the burden of producing which is upon the plaintiff, that the
jury must consider in determining whether there has been a breach of
duty.
Kenz, 116 So. 3d at 466.
Respectfully, we disagree with the Kenz court’s conclusion because the
2010 statute, section 768.0755, reinserts the pre-Owens knowledge
element into slip and fall claims. See Kelso v. Big Lots Stores,
Inc., No. 8:09-cv-01286-T-EAK-TGW, 2010 WL 2889882, at *2 (M.D. Fla. July
21, 2010) (“[Section 768.0755] adds a new element to the claim, creating a new
legal obligation and attaching new legal consequences to events that took place
before the statute’s enactment; therefore, the plaintiff’s substantive rights
are affected.”). A comparison of the language used in revising the statutes
compels this result. Section 768.0710(2)(b), the 2002 statute, states “[a]ctual
or constructive notice of the transitory foreign object or substance is not a
required element of proof to this claim,” while section 768.0755(1), the newer
statute, states “the injured person must prove that the business establishment
had actual or constructive knowledge of the dangerous condition.”
2010 statute, section 768.0755, reinserts the pre-Owens knowledge
element into slip and fall claims. See Kelso v. Big Lots Stores,
Inc., No. 8:09-cv-01286-T-EAK-TGW, 2010 WL 2889882, at *2 (M.D. Fla. July
21, 2010) (“[Section 768.0755] adds a new element to the claim, creating a new
legal obligation and attaching new legal consequences to events that took place
before the statute’s enactment; therefore, the plaintiff’s substantive rights
are affected.”). A comparison of the language used in revising the statutes
compels this result. Section 768.0710(2)(b), the 2002 statute, states “[a]ctual
or constructive notice of the transitory foreign object or substance is not a
required element of proof to this claim,” while section 768.0755(1), the newer
statute, states “the injured person must prove that the business establishment
had actual or constructive knowledge of the dangerous condition.”
The shift from 768.0710 to 768.0755 was far more than a simple procedural
change to the burden of proof. See Castellanos v. Target Corp., No.
10-62456-CIV, 2011 WL 5178334, at *3 (S.D. Fla. Oct. 14, 2011). Under the 2002
statute, a plaintiff could succeed in a slip and fall case by showing “the
business premises acted negligently by failing to exercise reasonable care in
the maintenance, inspection, repair, warning, or mode of operation of the
business premises,” without showing the business had actual or constructive
knowledge of the transitory foreign substance. Under the 2010 statute, however,
the same plaintiff would be unable to successfully assert such a cause of
action, no matter how persuasive or compelling the evidence the plaintiff had in
support of the claim.
change to the burden of proof. See Castellanos v. Target Corp., No.
10-62456-CIV, 2011 WL 5178334, at *3 (S.D. Fla. Oct. 14, 2011). Under the 2002
statute, a plaintiff could succeed in a slip and fall case by showing “the
business premises acted negligently by failing to exercise reasonable care in
the maintenance, inspection, repair, warning, or mode of operation of the
business premises,” without showing the business had actual or constructive
knowledge of the transitory foreign substance. Under the 2010 statute, however,
the same plaintiff would be unable to successfully assert such a cause of
action, no matter how persuasive or compelling the evidence the plaintiff had in
support of the claim.
We also respectfully disagree with the Kenz court’s conclusion that
applying section 768.0755 retroactively would not abolish a plaintiff’s cause of
action. Slip and fall plaintiffs who could successfully assert a cause of action
under the 2002 statute even without the owner having knowledge of the spill
would be completely unable to pursue their causes of action if the 2010 statute
was applied retroactively. If these plaintiffs were injured before the effective
date of the statute, the imposition of section 768.0755 would result in a
wholesale abolition of their accrued causes of action. That type of impediment
to a preexisting cause of action is constitutionally impermissible. See Am.
Optical, 73 So. 3d at 133.
applying section 768.0755 retroactively would not abolish a plaintiff’s cause of
action. Slip and fall plaintiffs who could successfully assert a cause of action
under the 2002 statute even without the owner having knowledge of the spill
would be completely unable to pursue their causes of action if the 2010 statute
was applied retroactively. If these plaintiffs were injured before the effective
date of the statute, the imposition of section 768.0755 would result in a
wholesale abolition of their accrued causes of action. That type of impediment
to a preexisting cause of action is constitutionally impermissible. See Am.
Optical, 73 So. 3d at 133.
For these reasons, we affirm the trial court’s decision to apply the 2002
statute (section 768.0710) rather than the 2010 law (section 768.0755), and
certify conflict with the Third District’s Kenz decision.
statute (section 768.0710) rather than the 2010 law (section 768.0755), and
certify conflict with the Third District’s Kenz decision.
Motion to Conduct Juror Interviews
We next address the trial court’s denial of the motion to conduct
post-verdict juror interviews. “The standard of review for an order on a motion
for juror interviews is abuse of discretion.” Sterling v. Feldbaum, 980
So. 2d 596, 598 (Fla. 4th DCA 2008) (citation omitted).
post-verdict juror interviews. “The standard of review for an order on a motion
for juror interviews is abuse of discretion.” Sterling v. Feldbaum, 980
So. 2d 596, 598 (Fla. 4th DCA 2008) (citation omitted).
This Court has recently addressed the requirements for a post-verdict jury
interview:
interview:
Post-trial juror interviews should be rarely granted and the
sanctity of the jury process as well as the privacy rights of the jurors
themselves should be closely guarded and protected. However, where there are
reasonable grounds to believe concealment of a material fact has taken place, a
party is entitled to conduct a jury interview. Allegations in the motion for
interview cannot be bottomed on mere conclusory statements based on speculation
and surmise that, if interrogated, the jurors might have something to say that
would be material to whether or not the court should award a new
trial.
Rodgers v. After Sch. Programs, Inc., 78 So. 3d 42, 45 (Fla. 4th DCA
2012) (citations, alterations, and quotation marks omitted).
2012) (citations, alterations, and quotation marks omitted).
Where, as here, the basis of a request for post-trial interviews is the
jurors’ alleged nondisclosure of information during voir dire, “the motion
should demonstrate entitlement to a new trial under the three-part test” of
De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). Id. The
De La Rosa test requires the moving party to show:
jurors’ alleged nondisclosure of information during voir dire, “the motion
should demonstrate entitlement to a new trial under the three-part test” of
De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). Id. The
De La Rosa test requires the moving party to show:
(1) The concealed information was relevant and material to jury
service in the case;
(2) The juror concealed the information during questioning;
and
(3) The failure to disclose the information was not attributable to
the complaining party’s lack of diligence.
Id. (citation omitted).
Pembroke Lakes and Millard primarily rely on this court’s decision in
Sterling. In that case, the trial court provided the prospective jurors
with a questionnaire that asked, among other things, whether the jurors or their
immediate family members had any currently pending litigation or any litigation
matters in the past. Sterling, 980 So. 2d at 598. Two of the subsequently
challenged jurors answered “no,” and the other challenged juror disclosed only
that he had been involved in a suit that settled and that his brother had been
involved in a criminal case. Id. After the jury rendered a verdict in
favor of the defendant, the plaintiff moved to conduct post-verdict juror
interviews based on the three jurors’ alleged nondisclosure of prior litigation.
Id. The first juror was involved in three or four civil actions, the
second juror had a federal tax lien filed against her, and the third juror had a
civil collection judgment. Id. The plaintiff’s motion was supported by
“Westlaw printouts and information from the Broward County Court Clerk’s website
about the three jurors.” Id. The trial court denied the motion to
interview jurors on two grounds: (1) the Westlaw and clerk’s website information
did not sufficiently indicate the jurors were the same people listed in the
records, and (2) the prior lawsuits were too remote in time and substance to be
material. Id.
Sterling. In that case, the trial court provided the prospective jurors
with a questionnaire that asked, among other things, whether the jurors or their
immediate family members had any currently pending litigation or any litigation
matters in the past. Sterling, 980 So. 2d at 598. Two of the subsequently
challenged jurors answered “no,” and the other challenged juror disclosed only
that he had been involved in a suit that settled and that his brother had been
involved in a criminal case. Id. After the jury rendered a verdict in
favor of the defendant, the plaintiff moved to conduct post-verdict juror
interviews based on the three jurors’ alleged nondisclosure of prior litigation.
Id. The first juror was involved in three or four civil actions, the
second juror had a federal tax lien filed against her, and the third juror had a
civil collection judgment. Id. The plaintiff’s motion was supported by
“Westlaw printouts and information from the Broward County Court Clerk’s website
about the three jurors.” Id. The trial court denied the motion to
interview jurors on two grounds: (1) the Westlaw and clerk’s website information
did not sufficiently indicate the jurors were the same people listed in the
records, and (2) the prior lawsuits were too remote in time and substance to be
material. Id.
On appeal, we reversed the denial of the motion for juror interviews.
Id. at 599. We wrote “Westlaw and Broward docket search results may
provide reasonable grounds to believe that juror misconduct has occurred.”
Id. (citing Roberts v. Tejada, 814 So. 2d 334, 336-37 (Fla. 2002)
(noting that Miami-Dade official public records index, jury pool information,
and “Autotrak” computerized background check supported motion for juror
interviews)).
Id. at 599. We wrote “Westlaw and Broward docket search results may
provide reasonable grounds to believe that juror misconduct has occurred.”
Id. (citing Roberts v. Tejada, 814 So. 2d 334, 336-37 (Fla. 2002)
(noting that Miami-Dade official public records index, jury pool information,
and “Autotrak” computerized background check supported motion for juror
interviews)).
In a later case, we clarified that the trial court could properly deny a
motion to interview jurors and motion for new trial if, taking the moving
party’s allegations as true, the alleged nondisclosure would not satisfy the
De La Rosa test. Rodgers, 78 So. 3d at 45. In Rodgers, we
concluded the juror’s failure to disclose the information was due to the moving
party’s own failures to properly craft its questions during voir dire; thus, the
moving party failed the third prong of the De La Rosa test and juror
interviews were unnecessary. Id.
motion to interview jurors and motion for new trial if, taking the moving
party’s allegations as true, the alleged nondisclosure would not satisfy the
De La Rosa test. Rodgers, 78 So. 3d at 45. In Rodgers, we
concluded the juror’s failure to disclose the information was due to the moving
party’s own failures to properly craft its questions during voir dire; thus, the
moving party failed the third prong of the De La Rosa test and juror
interviews were unnecessary. Id.
Applying these principles to the instant case, we must conclude that the
trial court abused its discretion by denying the motion to interview the jurors.
“Although generally post-verdict juror interviews are disfavored, where there is
adequate proof that a juror may have failed to disclose material information on
voir dire, a party is entitled to conduct an interview of the juror.”
Hillsboro Mgmt., LLC v. Pagono, 112 So. 3d 620, 624 (Fla. 4th DCA 2013).
trial court abused its discretion by denying the motion to interview the jurors.
“Although generally post-verdict juror interviews are disfavored, where there is
adequate proof that a juror may have failed to disclose material information on
voir dire, a party is entitled to conduct an interview of the juror.”
Hillsboro Mgmt., LLC v. Pagono, 112 So. 3d 620, 624 (Fla. 4th DCA 2013).
McGruder argues the court was not required to grant the motion for interviews
because, even taking Pembroke Lakes’ and Mallard’s allegations as true, the
allegations did not “demonstrate entitlement to a new trial under the three-part
test of De La Rosa v. Zequeira.” See Rodgers, 78 So. 3d at
45. As previously set forth, the first prong of the De La Rosa test is
whether the nondisclosure is relevant and material to the instant case.
because, even taking Pembroke Lakes’ and Mallard’s allegations as true, the
allegations did not “demonstrate entitlement to a new trial under the three-part
test of De La Rosa v. Zequeira.” See Rodgers, 78 So. 3d at
45. As previously set forth, the first prong of the De La Rosa test is
whether the nondisclosure is relevant and material to the instant case.
A juror’s nondisclosure of prior litigation is relevant, but it is not
necessarily material. See Roberts, 814 So. 2d at 341 (citation omitted);
Parra v. Cruz, 59 So. 3d 211, 213 (Fla. 3d DCA 2011) (“The respondents
rely on the misplaced notion that any prior litigation history coming to light
after trial is grounds for a new trial.”). Courts evaluate materiality based on
the “circumstances of each case” using the following test: “Nondisclosure is
considered material if it is substantial and important so that if the facts were
known, the [moving party] may have been influenced to peremptorily challenge the
juror from the jury.” Roberts, 814 So. 2d at 341 (citations omitted). In
applying this test, courts consider several factors: Remoteness in time from the
undisclosed litigation, the character and extensiveness of the prior litigation
(and similarity to the instant case litigation), and the juror’s posture in the
litigation. Id. at 342-43 (citations omitted); see also Duong v.
Ziadie, 125 So. 3d 225, 228 (Fla. 4th DCA 2013).
necessarily material. See Roberts, 814 So. 2d at 341 (citation omitted);
Parra v. Cruz, 59 So. 3d 211, 213 (Fla. 3d DCA 2011) (“The respondents
rely on the misplaced notion that any prior litigation history coming to light
after trial is grounds for a new trial.”). Courts evaluate materiality based on
the “circumstances of each case” using the following test: “Nondisclosure is
considered material if it is substantial and important so that if the facts were
known, the [moving party] may have been influenced to peremptorily challenge the
juror from the jury.” Roberts, 814 So. 2d at 341 (citations omitted). In
applying this test, courts consider several factors: Remoteness in time from the
undisclosed litigation, the character and extensiveness of the prior litigation
(and similarity to the instant case litigation), and the juror’s posture in the
litigation. Id. at 342-43 (citations omitted); see also Duong v.
Ziadie, 125 So. 3d 225, 228 (Fla. 4th DCA 2013).
Here, the prior litigation was potentially material to this slip and fall
litigation. At least one of the jurors, Jorge, was involved in a personal injury
protection lawsuit and may have participated in other litigation that was
relevant and material to the instant case. Finally, with the exception of
Rhonda,4 the jurors’ undisclosed
litigation occurred within four years of the trial.
litigation. At least one of the jurors, Jorge, was involved in a personal injury
protection lawsuit and may have participated in other litigation that was
relevant and material to the instant case. Finally, with the exception of
Rhonda,4 the jurors’ undisclosed
litigation occurred within four years of the trial.
While McGruder is correct in asserting that the record is unclear regarding
the level of the jurors’ involvement in their respective cases and whether these
jurors were the same people listed in the records, this court has specifically
found that county clerk records are an acceptable basis to support a motion to
interview jurors. See Sterling, 980 So. 2d at 599. Further, in situations
such as this, juror interviews provide an important purpose which upholds and
protects the sanctity of voir dire:
the level of the jurors’ involvement in their respective cases and whether these
jurors were the same people listed in the records, this court has specifically
found that county clerk records are an acceptable basis to support a motion to
interview jurors. See Sterling, 980 So. 2d at 599. Further, in situations
such as this, juror interviews provide an important purpose which upholds and
protects the sanctity of voir dire:
[T]he court’s analysis of the De La Rosa factors . . .
requires the court to weigh all the facts in the case. The court cannot
properly assess the requirements when the parties dispute the juror’s
involvement in the litigation uncovered in the records search. We thus
reverse the denial of new trial and remand for a juror interview and for the
court to conduct a hearing on the motion for new trial in compliance with the
principles announced in Roberts.
Hillsboro Mgmt., 112 So. 3d at 624-25 (emphasis added); but see
Rodgers, 78 So. 3d at 46 (“As to the juror with a common name, there was
insufficient proof that she was the same person who was involved in all of the
prior civil cases.” (citation omitted)).
Rodgers, 78 So. 3d at 46 (“As to the juror with a common name, there was
insufficient proof that she was the same person who was involved in all of the
prior civil cases.” (citation omitted)).
The second prong of the De La Rosa test concerns juror concealment of
the information sought during jury selection. The concealment prong is met when
the juror is “squarely asked for” the information and the juror fails to speak
the truth.5 Wiggins v. Sadow, 925
So. 2d 1152, 1155 (Fla. 4th DCA 2006). The concealment prong may be met if the
juror fails to respond to questions from either the court or the parties. See
Taylor v. Magana, 911 So. 2d 1263, 1270 (Fla. 4th DCA 2005). The
nondisclosure need not be intentional to constitute concealment. Id. at
1268-69 (citation omitted).
the information sought during jury selection. The concealment prong is met when
the juror is “squarely asked for” the information and the juror fails to speak
the truth.5 Wiggins v. Sadow, 925
So. 2d 1152, 1155 (Fla. 4th DCA 2006). The concealment prong may be met if the
juror fails to respond to questions from either the court or the parties. See
Taylor v. Magana, 911 So. 2d 1263, 1270 (Fla. 4th DCA 2005). The
nondisclosure need not be intentional to constitute concealment. Id. at
1268-69 (citation omitted).
Here, the concealment prong was met because the court unambiguously asked the
challenged jurors whether they or their families were involved in or had been
involved in any litigation apart from divorces, and all four categorically
answered that they had not.
challenged jurors whether they or their families were involved in or had been
involved in any litigation apart from divorces, and all four categorically
answered that they had not.
Finally, the third prong addresses whether the cause of the failure to elicit
the information was due to the fault of the complaining party. If a juror
mentions involvement in litigation and the complaining party does not ask
follow-up questions, the party cannot then obtain a new trial because of
undisclosed information relating to the litigation. See Rodgers,
78 So. 3d at 45; Taylor, 911 So. 2d at 1268. However, if the juror
unambiguously denies involvement in prior litigation, counsel need not ask
follow-up questions. See Taylor, 911 So. 2d at 1270.
Significantly, the due diligence prong does not require the complaining party to
perform its records check before the verdict is returned.6 See Roberts, 814 So. 2d at 344.
the information was due to the fault of the complaining party. If a juror
mentions involvement in litigation and the complaining party does not ask
follow-up questions, the party cannot then obtain a new trial because of
undisclosed information relating to the litigation. See Rodgers,
78 So. 3d at 45; Taylor, 911 So. 2d at 1268. However, if the juror
unambiguously denies involvement in prior litigation, counsel need not ask
follow-up questions. See Taylor, 911 So. 2d at 1270.
Significantly, the due diligence prong does not require the complaining party to
perform its records check before the verdict is returned.6 See Roberts, 814 So. 2d at 344.
Here, the jurors categorically answered that they had not been involved in
prior litigation, in response to a clear question posed by the court. The
parties were entitled to rely on the sacrosanct underpinnings of voir dire. The
jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes
or Millard.
prior litigation, in response to a clear question posed by the court. The
parties were entitled to rely on the sacrosanct underpinnings of voir dire. The
jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes
or Millard.
We must also note the trial court’s denial of the motion to conduct juror
interviews without holding a hearing on the issue. The rule governing juror
interviews provides: “After notice and hearing, the trial judge shall enter an
order denying the motion or permitting the interview.” Fla. R. Civ. P. 1.431(h).
Florida courts have interpreted this rule to require the court to hold a hearing
before denying the motion to interview jurors, at least if the motion is
facially valid. See State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So. 3d
52, 55 n.1 (Fla. 2d DCA 2011) (“Florida Rule of Civil Procedure 1.431(h)
requires that the trial court hold a hearing before granting or denying a
motion for juror interviews.”).
interviews without holding a hearing on the issue. The rule governing juror
interviews provides: “After notice and hearing, the trial judge shall enter an
order denying the motion or permitting the interview.” Fla. R. Civ. P. 1.431(h).
Florida courts have interpreted this rule to require the court to hold a hearing
before denying the motion to interview jurors, at least if the motion is
facially valid. See State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So. 3d
52, 55 n.1 (Fla. 2d DCA 2011) (“Florida Rule of Civil Procedure 1.431(h)
requires that the trial court hold a hearing before granting or denying a
motion for juror interviews.”).
Accordingly, we reverse the trial court’s decision to deny the motion to
interview the challenged jurors, with the exception of juror Rhonda. After the
interviews are conducted, the trial court can properly apply the De La
Rosa test to determine whether a new trial is required due to the
undisclosed litigation history. See Sterling, 980 So. 2d at 599.
interview the challenged jurors, with the exception of juror Rhonda. After the
interviews are conducted, the trial court can properly apply the De La
Rosa test to determine whether a new trial is required due to the
undisclosed litigation history. See Sterling, 980 So. 2d at 599.
Cross-Appeal
Finally, we address McGruder’s claim that the trial court erred by refusing
to hold Pembroke Lakes liable for the negligence attributed to Millard.
to hold Pembroke Lakes liable for the negligence attributed to Millard.
Section 768.0710 imposes a non-delegable duty of care on business owners to
maintain their premises in a reasonably safe condition for invitees. Armiger
v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 876 (Fla. 2d DCA 2010)
(citation omitted). The premises owner cannot “avoid liability for the breach of
its statutory duty by contracting the maintenance and cleaning function at the
[premises] to others.” Id.
maintain their premises in a reasonably safe condition for invitees. Armiger
v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 876 (Fla. 2d DCA 2010)
(citation omitted). The premises owner cannot “avoid liability for the breach of
its statutory duty by contracting the maintenance and cleaning function at the
[premises] to others.” Id.
When an owner owes a non-delegable duty of care to a plaintiff who
obtains a verdict assigning negligence to the owner and a party contracted by
the owner, the owner is jointly and severally liable for the negligence
attributed to the contracted party. See U.S. Sec. Servs. Corp. v. Ramada Inn,
Inc., 665 So. 2d 268, 269-71 (Fla. 3d DCA 1995) (holding hotel owner jointly
and severally liable for portion of negligence attributed to company contracted
by hotel to provide security); see also Armiger, 48 So. 3d at 875
(“[W]hen a business owner is subject to a nondelegable duty, the potential
responsibility of an independent contractor is not relevant to the analysis of
the business owner’s liability. . . [T]he party subject to the nondelegable duty
is directly liable for the breach of that duty, and the assignment of liability
based on the tortious acts of another is not a consideration.”).
obtains a verdict assigning negligence to the owner and a party contracted by
the owner, the owner is jointly and severally liable for the negligence
attributed to the contracted party. See U.S. Sec. Servs. Corp. v. Ramada Inn,
Inc., 665 So. 2d 268, 269-71 (Fla. 3d DCA 1995) (holding hotel owner jointly
and severally liable for portion of negligence attributed to company contracted
by hotel to provide security); see also Armiger, 48 So. 3d at 875
(“[W]hen a business owner is subject to a nondelegable duty, the potential
responsibility of an independent contractor is not relevant to the analysis of
the business owner’s liability. . . [T]he party subject to the nondelegable duty
is directly liable for the breach of that duty, and the assignment of liability
based on the tortious acts of another is not a consideration.”).
Pembroke Lakes raises numerous arguments in opposition to imposing liability
against it for the negligence attributed to Millard. We reject each argument and
discuss the following three: (1) McGruder failed to plead a breach of
non-delegable duty, (2) the jury made no findings regarding agency, and (3) the
jury instructions and verdict form directed the jury to apportion liability
between Pembroke Lakes and Millard.
against it for the negligence attributed to Millard. We reject each argument and
discuss the following three: (1) McGruder failed to plead a breach of
non-delegable duty, (2) the jury made no findings regarding agency, and (3) the
jury instructions and verdict form directed the jury to apportion liability
between Pembroke Lakes and Millard.
McGruder’s amended complaint sufficiently pleaded a claim for breach of
non-delegable duty against Pembroke Lakes. See Armiger, 48 So. 3d at 876.
In Armiger, the plaintiff slipped and fell in a puddle on the defendant’s
business premises. Id. at 867. The plaintiff sued the defendant, alleging
the owner was negligent and breached its duty to maintain the premises in a
reasonably safe condition, the puddle existed for sufficient time that the owner
should have known of it, the owner failed to ensure the area where the plaintiff
slipped was free of standing water, the owner permitted a slippery substance to
remain in the area where the plaintiff slipped, and the owner failed to timely
inspect and clean the grandstand area. Id. In an amended complaint, the
plaintiff added claims against an independent contractor hired by the owner to
clean and maintain the business premises, and the amended complaint’s claims
against the owner “remained essentially the same.” Id.
non-delegable duty against Pembroke Lakes. See Armiger, 48 So. 3d at 876.
In Armiger, the plaintiff slipped and fell in a puddle on the defendant’s
business premises. Id. at 867. The plaintiff sued the defendant, alleging
the owner was negligent and breached its duty to maintain the premises in a
reasonably safe condition, the puddle existed for sufficient time that the owner
should have known of it, the owner failed to ensure the area where the plaintiff
slipped was free of standing water, the owner permitted a slippery substance to
remain in the area where the plaintiff slipped, and the owner failed to timely
inspect and clean the grandstand area. Id. In an amended complaint, the
plaintiff added claims against an independent contractor hired by the owner to
clean and maintain the business premises, and the amended complaint’s claims
against the owner “remained essentially the same.” Id.
The Second District concluded that “[i]n light of the nondelegable duty
of care imposed . . . by section 768.0710(1),” the plaintiff’s amended complaint
“alleged all of the elements necessary to plead a cause of action for breach of
[the owner’s] nondelegable duty of care, and further amendment to the complaint
may have been helpful but was not necessary” to plead a breach of non-delegable
duty. Id. at 876. Similar to Armiger, McGruder’s amended complaint
alleged all of the elements necessary to plead a cause of action for breach of
Pembroke Lakes’ non-delegable duty of care.
of care imposed . . . by section 768.0710(1),” the plaintiff’s amended complaint
“alleged all of the elements necessary to plead a cause of action for breach of
[the owner’s] nondelegable duty of care, and further amendment to the complaint
may have been helpful but was not necessary” to plead a breach of non-delegable
duty. Id. at 876. Similar to Armiger, McGruder’s amended complaint
alleged all of the elements necessary to plead a cause of action for breach of
Pembroke Lakes’ non-delegable duty of care.
Pembroke Lakes’ argument that a finding of agency is required to impose
liability against a premises owner for a breach of a non-delegable duty is
incorrect. Pembroke Lakes, like many parties and some courts, erroneously
conflates the concepts of non-delegable duty and vicarious liability. See
id. at 874. Vicarious liability is a form of indirect liability in which a
party, who may have not been negligent, can be held liable for the acts of
another party. Id. In contrast, a breach of a non-delegable duty is a
form of direct liability, in which a business owner may be liable to the
plaintiff for negligently failing to take reasonable efforts to maintain the
premises in a safe condition. See id. at 874-75. To establish a breach of
a non-delegable duty, the plaintiff need not prove an agency relationship
because such a relationship is not relevant to the question of whether the owner
is directly liable to the plaintiff. Regardless of whether the owner contracts
with a party to clean and maintain the business premises, the owner is still
directly liable to an injured invitee if reasonable efforts are not made to
maintain the premises in a safe condition.
liability against a premises owner for a breach of a non-delegable duty is
incorrect. Pembroke Lakes, like many parties and some courts, erroneously
conflates the concepts of non-delegable duty and vicarious liability. See
id. at 874. Vicarious liability is a form of indirect liability in which a
party, who may have not been negligent, can be held liable for the acts of
another party. Id. In contrast, a breach of a non-delegable duty is a
form of direct liability, in which a business owner may be liable to the
plaintiff for negligently failing to take reasonable efforts to maintain the
premises in a safe condition. See id. at 874-75. To establish a breach of
a non-delegable duty, the plaintiff need not prove an agency relationship
because such a relationship is not relevant to the question of whether the owner
is directly liable to the plaintiff. Regardless of whether the owner contracts
with a party to clean and maintain the business premises, the owner is still
directly liable to an injured invitee if reasonable efforts are not made to
maintain the premises in a safe condition.
Finally, we address Pembroke Lakes’ argument that imposing liability against
it for the negligence attributed to Millard would be improper because the jury
instructions and verdict form directed the jury to apportion the negligence
between Pembroke Lakes and Millard. This argument fails because although
Pembroke Lakes is directly liable to McGruder for the negligence attributed to
Millard, Millard is not necessarily liable to McGruder for the negligence
attributed to Pembroke Lakes. Thus, it was proper to have the jury assign
negligence to Pembroke Lakes and Millard.
it for the negligence attributed to Millard would be improper because the jury
instructions and verdict form directed the jury to apportion the negligence
between Pembroke Lakes and Millard. This argument fails because although
Pembroke Lakes is directly liable to McGruder for the negligence attributed to
Millard, Millard is not necessarily liable to McGruder for the negligence
attributed to Pembroke Lakes. Thus, it was proper to have the jury assign
negligence to Pembroke Lakes and Millard.
Conclusion
We affirm the trial court’s decision to apply section 768.0710 rather than
section 768.0755, and we certify conflict with the Third District’s decision in
Kenz. On remand, after the jurors are interviewed, the court should apply
the De La Rosa test to determine whether a new trial is required. If a
new trial is not required, or if McGruder succeeds in a new trial, the court
should impose liability against Pembroke Lakes for the negligence attributed to
Millard. We affirm the other issues raised by Pembroke Lakes without comment.
section 768.0755, and we certify conflict with the Third District’s decision in
Kenz. On remand, after the jurors are interviewed, the court should apply
the De La Rosa test to determine whether a new trial is required. If a
new trial is not required, or if McGruder succeeds in a new trial, the court
should impose liability against Pembroke Lakes for the negligence attributed to
Millard. We affirm the other issues raised by Pembroke Lakes without comment.
Affirmed in part, reversed in part, and remanded; conflict certified.
(Stevenson and Levine, JJ., concur.)
(Stevenson and Levine, JJ., concur.)
__________________
1Sections 768.0710 and 768.0755 relate to
premises liability tort actions arising from slip and falls due to foreign
transitory substances in business establishments. Section 768.0710(2)(b),
Florida Statutes (2008), states “[a]ctual or constructive notice of the
transitory foreign object or substance is not a required element of proof to
this claim.” Section 768.0755(1), Florida Statutes (2010), added a requirement
that the “injured person must prove that the business establishment had actual
or constructive knowledge of the dangerous condition and should have taken
action to remedy it.”
premises liability tort actions arising from slip and falls due to foreign
transitory substances in business establishments. Section 768.0710(2)(b),
Florida Statutes (2008), states “[a]ctual or constructive notice of the
transitory foreign object or substance is not a required element of proof to
this claim.” Section 768.0755(1), Florida Statutes (2010), added a requirement
that the “injured person must prove that the business establishment had actual
or constructive knowledge of the dangerous condition and should have taken
action to remedy it.”
2We list the jurors’ first names only.
3“[A] remedial statute is one which
confers or changes a remedy; a remedy is the means employed in enforcing a right
or in redressing an injury.” St. John’s Village I, Ltd. v. Dep’t of State,
Div. of Corps., 497 So. 2d 990, 993 (Fla. 5th DCA 1986) (citation omitted).
confers or changes a remedy; a remedy is the means employed in enforcing a right
or in redressing an injury.” St. John’s Village I, Ltd. v. Dep’t of State,
Div. of Corps., 497 So. 2d 990, 993 (Fla. 5th DCA 1986) (citation omitted).
4Rhonda’s prior litigation consisted of
one suit from 1991, and this person was a defendant rather than a plaintiff. If
the motion had only raised Rhonda’s litigation history, we would have found that
the trial court did not abuse its discretion by denying the motion. See
Duong, 125 So. 3d at 228.
one suit from 1991, and this person was a defendant rather than a plaintiff. If
the motion had only raised Rhonda’s litigation history, we would have found that
the trial court did not abuse its discretion by denying the motion. See
Duong, 125 So. 3d at 228.
5“Honesty is the heart of the
jury-selection process in an adversarial system; indeed, ‘voir dire’ means ‘to
speak the truth.’ ” Fields v. Brown, 503 F.3d 755, 772 (9th Cir. 2007).
jury-selection process in an adversarial system; indeed, ‘voir dire’ means ‘to
speak the truth.’ ” Fields v. Brown, 503 F.3d 755, 772 (9th Cir. 2007).
6We repeat our observation that “[t]he
time may have come to rethink how the courts handle juror non-disclosure so as
to prevent so much litigation over the issue and so many retrials of cases to
the detriment of the entire judicial system.” Hillsboro Mgmt., 112 So. 3d
at 625.
time may have come to rethink how the courts handle juror non-disclosure so as
to prevent so much litigation over the issue and so many retrials of cases to
the detriment of the entire judicial system.” Hillsboro Mgmt., 112 So. 3d
at 625.
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