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Fla. L. Weekly D1862bTop of Form
Fla. L. Weekly D1862bTop of Form
Torts
— Premises liability — Discovery — Incident report prepared in anticipation
of litigation — Incident report prepared by defendant after plaintiff was
allegedly injured when chair collapsed in defendant’s restaurant was protected
by work product privilege where report was made in accordance with company
policy to report incidents of injury to patrons
— Premises liability — Discovery — Incident report prepared in anticipation
of litigation — Incident report prepared by defendant after plaintiff was
allegedly injured when chair collapsed in defendant’s restaurant was protected
by work product privilege where report was made in accordance with company
policy to report incidents of injury to patrons
RUBY TUESDAY, INC. AND CATHERINE
ANDERSON, Petitioners, v. KAREN METALONIS, Respondent. 5th District. Case No.
5D17-1158. Opinion filed August 25, 2017. Petition for Certiorari Review of
Order from the Circuit Court for Lake County, Mark J. Hill, Judge. Counsel:
Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for
Petitioners. Kurt Zaner, of Zaner Harden Law, LLP, Denver, CO, and Charles T.
Douglas, of Douglas & Hedstrom, P.A., Palatka, for Respondent.
ANDERSON, Petitioners, v. KAREN METALONIS, Respondent. 5th District. Case No.
5D17-1158. Opinion filed August 25, 2017. Petition for Certiorari Review of
Order from the Circuit Court for Lake County, Mark J. Hill, Judge. Counsel:
Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for
Petitioners. Kurt Zaner, of Zaner Harden Law, LLP, Denver, CO, and Charles T.
Douglas, of Douglas & Hedstrom, P.A., Palatka, for Respondent.
(PER CURIAM.) Petitioners challenge
an order compelling the production of an incident report prepared after
Respondent allegedly was injured when a chair collapsed at a Ruby Tuesday
restaurant. Although the trial court’s order compelling production of the incident
report does not provide the court’s reasoning, Respondent argued below that the
report was not made in anticipation of litigation and that she had a
demonstrated need for the report nevertheless.
an order compelling the production of an incident report prepared after
Respondent allegedly was injured when a chair collapsed at a Ruby Tuesday
restaurant. Although the trial court’s order compelling production of the incident
report does not provide the court’s reasoning, Respondent argued below that the
report was not made in anticipation of litigation and that she had a
demonstrated need for the report nevertheless.
The determination of whether an
incident report was prepared in anticipation of litigation turns on whether
“the document was prepared in response to some event which foreseeably could be
made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal,
932 So. 2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of
the reporter in making the report might be relevant to this determination, it
is by no means dispositive because an objective standard applies. Here, the
reporter testified that she made the report in accordance with company policy
to report incidents of injury to patrons. The fact that the reporter did not
personally foresee the potential claim and did not know the purpose for the
company policy did not negate a finding that the report was work product. It
was clear that the alleged injury was caused by an object in Petitioners’
control and there was some evidence to suggest that Petitioners had prior
knowledge of the defective condition of the chair. Under the circumstances
presented here, it was foreseeable that the event might form the basis for a
claim. Accordingly, the incident report was protected work product.
incident report was prepared in anticipation of litigation turns on whether
“the document was prepared in response to some event which foreseeably could be
made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal,
932 So. 2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of
the reporter in making the report might be relevant to this determination, it
is by no means dispositive because an objective standard applies. Here, the
reporter testified that she made the report in accordance with company policy
to report incidents of injury to patrons. The fact that the reporter did not
personally foresee the potential claim and did not know the purpose for the
company policy did not negate a finding that the report was work product. It
was clear that the alleged injury was caused by an object in Petitioners’
control and there was some evidence to suggest that Petitioners had prior
knowledge of the defective condition of the chair. Under the circumstances
presented here, it was foreseeable that the event might form the basis for a
claim. Accordingly, the incident report was protected work product.
As for Respondent’s argument
regarding need, we conclude without elaboration that the present record
demonstrates that Respondent did not meet her burden on this issue.
regarding need, we conclude without elaboration that the present record
demonstrates that Respondent did not meet her burden on this issue.
ORDER QUASHED. (COHEN, C.J.,
ORFINGER and TORPY, JJ., concur.)
ORFINGER and TORPY, JJ., concur.)
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