Fourth District On The Retroactive Application of Section 768.0755 (Conflict Certified), Jury Interviews, & Non-Delegable Duty of Care

 In Pembroke Lakes Mall LTD v. McGruder (4D11-4005), the Fourth District affirmed in part, reversed in part, and certified conflict with the Third District’s decision in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013). The court “conclude[d] 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.”

Retroactive Application of Statute

The court first addressed “whether section 768.0755, Florida Statutes (2010), applies retroactively.” In 2001, in a slip and fall case, the Florida Supreme Court held that “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). The Fourth District stated that “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.’” However, in 2010, the legislature again amended the statute in a substantial way. "The legislature repealed section 768.0710 and replaced it with section 768.0755, Florida Statutes (2010) and therein provided an effective date of July 1, 2010.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’.”

The issue was whether the 2002 version of the law, or the 2010 version enacted after the alleged incident, would apply to this claim. To determine whether a statute can be applied retroactively:

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.” However, “the general rule against retroactive application of statutes does not apply to procedural or remedial changes.” "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).”

As to this specific change, and contrary to the Third District’s conclusion in Kenz, the court stated that “the shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof.” The court also “respectfully disagree[d] with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiff’s cause of action.” Therefore, the statute could not be applied retroactively.and held that “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.”

Post-Trial Jury Interviews

The court also addressed the trial court’s denial of a motion to conduct post-trial jury interviews. "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).” The court stated that:

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).

The court stated that while the disclosure of prior litigation by a juror is always relevant, it is not always material. "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.” 

After establishing the information was material, the movant was still required to establish that the juror concealed the information and that the concealment was not the fault of the movant. On those issues, the court stated: 

The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth…. The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. … The nondisclosure need not be intentional to constitute concealment. 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.

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. … However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. 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.

Non-Delegable Duty of Care

The final issue addressed in the court’s 16 page opinion relates to “McGruder’s claim that the trial court erred by refusing to hold Pembroke Lakes liable for the negligence attributed to Millard.” The court’s opinion provides more analysis than is included here but, generally, the court held as follows:

Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees ….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. …. 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. …. Pembroke Lakes raises numerous arguments in opposition to imposing liability against it for the negligence attributed to Millard. We reject each argument

One of the three arguments discussed, and rejected by the court relates to the difference between a non-delegable duty and vicarious liability. Because it is apparently a source of confusion, the court’s clarification is copied below:

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. … 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. … 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.  

Petition Filed In Florida Supreme Court To Limit Juror Use Of Social Media

A petition was filed in the Florida Supreme Court yesterday to limit the use of social media by jurors.  The petition was prompted by the following:

On August 26, 2009, Justice R. Fred Lewis wrote letters requesting that the Florida Supreme Court Committees for Standard Jury Instructions in Civil and Criminal Cases consider “the problem of jurors engaging in electronic communications, research or the use of technology by jurors during a pending case.”  These letters explained that the Michigan Supreme Court had recently approved a rule banning jurors from using electronic devices during trial and adopted a specific jury instruction on this issue. In the letters, Justice Lewis asked the Civil and Criminal Committees to “jointly propose a uniform approach along with uniform jury instructions to be used in all cases,” in a report filed by January 11, 2010.

The proposal:

The Civil and Criminal Committees propose that this Court use the same core language in both civil and criminal cases to instruct jurors on their use of electronic devices. In this age of electronic communication, many jurors are accustomed to having the ability to instantly communicate with others or perform immediate Internet research.

The Committees recommend that the qualifications instruction be given to all jurors when they are still in a jury assembly room during the qualifications stage and before they have entered a courtroom. While the information heard by jurors before they enter a courtroom is not technically an “instruction,” both committees feel it is important for this Court to consider giving standard language on this issue as early as possible.

The Committees further recommend that jurors be instructed on the use of electronic devices at multiple points in the proceedings: (1) preliminary instructions before voir dire begins; (2) preliminary instructions after voir dire ends and the jury is sworn; and (3) closing instructions. The committees propose using slightly different language at each stage of the proceeding.

The Committees propose inserting identical language into the preliminary instructions. The Committees propose slightly different language for the closing instruction. The Civil Committee asks this Court to instruct the jury: “Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer.” The Criminal Committee, in closing instruction 3.13, felt that references to accountants, doctors, or lawyers are not germane to criminal cases. The Criminal Committee unanimously voted to revise this sentence to read: “Do not contact anyone to assist you during deliberations.”

The petition is below:
Social Media Petition 1-15-2010


Exhibits to the petition can be found at the following links:
Exhibit A;
Exhibit B;
Exhibit C;
Exhibit D;
Exhibit E;
Exhibit F;
Exhibit G; and
Exhibit H.

Inconsistent Verdict Or Compromise Verdict? No Damage Verdict Against Insurer Upheld

In Smith v. Florida Healthy Kids Corporation and Clarendon National Insurance Company (4D08-2490), the Fourth District clarified the difference between a "jury verdict reached by an illegal compromise, and a jury verdict reached by an entirely appropriate compromise of viewpoints which inheres in the verdict and as such, is not subject to post-trial scrutiny." 

The case proceeded to trial on a single count for breach of contract seeking, as damages, the amount of unpaid medical bills incurred by Smith as a result of injuries he sustained after being shot several times by a police officer with the Town of Jupiter Police Department....Clarendon denied coverage o n th e basis of a felony exclusion clause in the policy....The jury returned a verdict finding that Clarendon breached its contract with Smith.  The jury rendered a zero verdict on damages, which Smith contends was the result of a compromise verdict requiring a new trial. However, Smith confuses a compromise verdict with an inconsistent verdict, and the cases cited in his brief are distinguishable and entirely inapposite when applied to the facts of this case.

***

While Florida jurisprudence is replete with examples of compromise verdicts that are characterized by the common elements of hotly contested liability and legal inadequacy of damages, the Supreme Court of Connecticut has recently reiterated its longstanding definition of a compromise verdict:

“A compromise verdict is a ‘verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel,’ and, as such, is not permitted.”

Monti v. Wenkert, 947 A.2d 261, 270 (Conn. 2008) (quoting Murray v. Krenz, 109 A. 859, 861 (1920)).

On the facts of this case, it cannot be argued that the jury verdict reached on the issues of liability and damages necessarily evinces the surrendering of conscientiously held opposing convictions upon those two issues by jurors, which resulted in a verdict that was not approved by the entire panel. Indeed, the jury was polled after its verdict; and each confirmed their verdict.

***

In other words, an inconsistent verdict is when two findings of fact are mutually exclusive.  A verdict is not necessarily inconsistent simply because it fails to award enough money or, as here, no money at all. Under such circumstances, there may be an issue as to the adequacy of the award, but not its inconsistency with any other award contained within the verdict.

The court cited Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) which was discussed HERE.

Jury Compromise Not Sufficient To Set Aside Verdict (Clarified Opinion)

In Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) (4D08-2414), the Fourth District denied a petition for rehearing but issued a clarified opinion and reaching the same result.  The original opinion was discussed here.

Waiver Of Peremptory Challenge To African-American Juror And Waiver Of Challenge To Admissibility Of Evidence

In USAA Casualty Insurance Company v. Allen (4D08-3380), the Fourth District held Appellant failed to preserve its objection to the trial court’s denial of appellant’s use of a peremptory challenge against an African-American juror under the procedure required by Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996)" and that the appellant had not properly preserved a motion in limine relating to the admissibility of evidence.

With regard to the juror challenge, the court stated: "In order to preserve the issue of whether the trial court’s ruling on a peremptory challenge constitutes reversible error, the appellant must accept the juror, or panel, subject to its prior objection and/or renew the objection before the jury is sworn."

 

As to the evidence, the trial court did not definitively rule on the objections to the evidence.  "It was thus incumbent on appellant to object when the appellees sought to introduce the evidence, which it did not do. Therefore, appellant failed to preserve the issue for appeal.

Second District On The Economic Loss Rule and Waiver Of Right To Jury Trial

In Ladner v. AmSouth Bank (2D08-3540), the Second District reached a number of conclusions in a dispute relating to a mortgage. 

First, the trial court's decision relating to the sufficiency of the pleading was reversed. 

Second, the trial court's conclusion relating to the economic loss rule was reversed.  The court stated: "We do note though that the economic loss rule would not act as a bar to the Ladners' tort claims against AmSouth that stem from the Ladners' reliance on AmSouth's representations when entering into the construction contract with Water Color. " '[W]hen . . . fraud occurs in . . . connection with misrepresentations, statements, or omissions which cause the complaining party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort.' " Output, Inc. v. Danka Bus. Sys., Inc., 991 So. 2d 941, 944 (Fla. 4th DCA 2008) (quoting D and M Jupiter, Inc. v. Friedopfer, 853 So. 2d 485, 487-88 (Fla. 4th DCA 2003)). " 'The economic loss rule has not eliminated causes of action based upon torts independent of the contractual breach. . . .' " Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 537 (Fla. 2004) (quoting HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996)). Accordingly, we also reverse the trial court's finding based on the economic loss rule as it applies to the Water Color contract.

Third, the Second District affirmed the trial court's application of the jury waiver clause in the mortgage agreement.

Jury Verdict for Hospital That Sent Illegal Immigrant Back to Guatemala on Private Plane

There are a number of articles about a jury verdict in Martin County today. The ABA Journal article can be found here; an article in the SunSentinel can be found here and an article in the NY Times here.

The SunSentinel article described the facts as:

A hospital in Stuart that quietly chartered a plane and sent a seriously brain-injured illegal immigrant back to Guatemala over the objections of his family and legal guardian did not act unreasonably, a jury ruled today.

The first paragraph NY Times article is quoted below:

In a benchmark case dealing with the obligations of hospitals toward uninsured illegal immigrants, a jury in Stuart, Fla., decided Monday that Martin Memorial Medical Center did not act unreasonably when it chartered a plane and repatriated a severely brain-injured Guatemalan patient against the will of his guardian.

Jury Compromise Not Sufficient to Set Aside Judgment

In Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) (4D08-2414), the Fourth District affirmed the trial court's decision that the jury deliberations were not tainted.

After a day of deliberations, the jury was sent home for the weekend. On Monday they returned and quickly reached a verdict. Ten days later, the jury foreperson filed an affidavit stating that the jury was deadlocked 3-3, however, the 3 jurors against finding liability agreed to find liability if the other three jurors agreed to only award 50% of the damages.

A trial court’s denial of a new trial for alleged improprieties in the verdict is reviewed for an abuse of discretion. State v. Hamilton, 574 So. 2d 124, 126 (Fla. 1981). “Jury compromise may occur when certain jurors agree to find liability as long as the damages award is small….” Rochelle v. State Dept. of Corrections, 927 So. 2d 997, 999 (Fla. 1st DCA 2006).

***

What allegedly occurred during jury deliberations in the present case does not rise to the level of reaching a verdict by aggregate or by lot. The jury negotiated a verdict by means of normal give and take, and the foreperson’s affidavit stating that two groups of jurors reached a compromise regarding the amount of damages and proportional liability merely recounts a matter that inheres in the verdict.

This opinion was clarified as discussed HERE.

Jury Verdict Overturned Based on Racially Motivated Use of Peremptory Challenges

In Sparks v. Allstate Construction, Inc. (3D08-2475), the Third DCA reversed a jury verdict in the defendants favor based upon racially motivated use of peremptory challenges.

The defendant alleged it was striking African American jurors on the basis of their employment -or prior employment. However, the Third DCA disagreed and stated: "This transcript demonstrates a systematic use of peremptories, followed by what seem to be quickly-contrived excuses for the strikes, in a manner calculated to exclude African Americans from serving on the jury. The only African American who was seated came up after the defense’s peremptories had been exhausted." [emphasis in original].

The court then stated "It is axiomatic that 'jurors and litigants have a right to jury selection procedures that are free from discrimination'.”

The attorney for the plaintiff timely objected on the basis that the peremptory challenges seemed to be motivated by race. The court held that the objections were not waived because the plaintiff never gave any indication it was accepting the jury. "Here, 'because of the specific objection communicated to the judge and the proximity of this objection to the swearing of the jury, there is no question that the judge understood and rejected [plaintiff’s] consistently maintained position that the judge had erred. It would have been futile for the lawyer to repeat what he had just told the judge'.”

"In this case, using 'reason and common sense,' Melbourne, 679 So. 2d at 765, the circumstances surrounding, and explanation for, the strikes seem palpably pretextual. Rodriguez v. State, 753 So. 2d 29, 40 (Fla. 2000). This is particularly true when all of the peremptory strikes are used against one distinct racial group, and a single member of that same group is only seated at a time when that party has exhausted its entire allowance of peremptories."

Applicable Standard When Dismissing Juror for Cause

In Samuels v. State (4D07-359 & 4D08-1) the Fourth DCA discussed the standard to be used when determining whether to excuse a juror for cause. The court held:

An appellate court reviews a ruling on a cause challenge for abuse of discretion. Singleton v. State, 783 So. 2d 970, 973 (Fla. 2001); Carratelli v. State, 832 So. 2d 850, 854 (Fla. 4th DCA 2002). “A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to render an impartial verdict.” Carratelli, 832 So. 2d at 854 (quoting Singleton, 783 So. 2d at 973). A close case involving a challenge to the impartiality of a potential juror should be resolved in favor of excusing the juror rather than leaving doubt as to her impartiality. Id.