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The below content previously appeared in the February 2024 issue of the Broward County Bar Association’s Barrister magazine.
Florida Supreme Court clarifies the dangerous instrumentality rule and the law of bailment, as applied to a family vehicle.
In this case, the car involved in the accident was owned by the father, primarily driven by the mother, but driven by the son at the time of the accident. The son testified that he had both of his parents’ permission to drive the vehicle and the injured plaintiff asserted vicarious liability claims against both parents under the dangerous instrumentality doctrine. Although there was essentially an agreement that the father, and owner of the vehicle, was vicariously responsible, the mother disputed her responsibility for what was, essentially, the same entrustment of the same vehicle to the son. The trial court entered a judgment against the mother (as well as the father and son), and the appellate court reversed the claim against the mother. The Florida Supreme Court, after reviewing the history of the dangerous instrumentality rule, concluded that it was immaterial that the son had his mother’s permission to use the vehicle because she was not the owner of the vehicle, and allowing a claim against her would improperly extend the dangerous instrumentality doctrine. Emerson v. Lambert, SC2020-1311, 48 Fla. L. Weekly D227 (Fla. Nov. 16, 2023).
Appellate reminder: be thoughtful about having a court reporter for hearings and trial, particularly where the trial court has discretion!
An important reminder as we move into a new year: in all appellate proceedings there is a presumption that the trial court’s ruling was correct, and the burden is on the appellant to demonstrate error. If that cannot be done because there is no transcript available, or a proper substitute as permitted under the appellate rules, it often results in an inability to show that a reversible error (or fundamental error) occurred, and the underlying decision will be affirmed because there is no means for meaningful review of the trial court’s decision. Gaspard v. Innocent, 3D22-2105, 48 Fla. L. Weekly D2239 (Fla. 3d DCA Nov. 29, 2023).
Concurring opinion provides insight on immunity provided by the PREP Act.
Citrus Memorial Hospital sought immunity under the federal Public Readiness and Emergency Preparedness Act (PREP Act) which provides immunity to health care providers for injuries arising from a drug, device or other “countermeasure” that the U.S. Department of Health and Human Services has specified in a declaration addressing a public health emergency. The trial court denied immunity and the appellate court agreed that it did not apply. A concurring opinion explained that the case involved a garden-variety medical malpractice claim. Where the injuries were not shown to be causally connected to the kind of activities the HUD declarations related to COVID-19 were intended to address, the court upheld the denial of immunity and allowed the claim to proceed. Citrus Mem. Hosp., Inc. v. Iannelli, 5D22-2971, 48 Fla. L. Weekly D2171 (Fla. 5th DCA Nov. 9, 2023).
Appellate court affirmed dismissal of pro se medical malpractice plaintiff’s unique claims against expert witness, PayPal and the State of Florida and warned against future filings.
After failing to comply with the statutory medical malpractice presuit requirements, the pro se plaintiff filed a medical malpractice lawsuit. He also sued the expert witness who did not support his case, PayPal for refusing to refund the expert’s fee, and the State of Florida for improperly enacting statutory requirements for malpractice suits. After the dismissal of his claims, he appealed. The appellate court upheld the dismissal of all of the claims it had jurisdiction to address, and dismissed the appeals that were not yet ripe. The court also warned the appellant that if he continued to file frivolous documents he would be subjected to sanctions or barred from appearing without an attorney in the future. Gorham v. Lavine, 1D2023-0358, 1D2023-0839, 1D2023-1518, 48 Fla. L. Weekly D2252 (Fla. 1st DCA Nov. 29, 2023).