As 2021 Begins, Florida Shifts to Federal Summary Judgment Standard

Perhaps anxious to remember 2020 for some positive reason, the Florida Supreme Court closed out the year by issuing a New Year’s Eve decision that abandons Florida’s prior summary judgment standard and adopts the federal summary judgment standard established in the Celotex trilogy. The opinion, Wilsonart LLC v. Lopez, Case No. SC19-1336 (Fla. Dec. 31, 2020), was accompanied by a subsequently adopted proposed amendment to Florida Rule of Civil Procedure 1.510, adopted in In Re Amends to Fla. R. Civ. P. 1.510, No. SC20-1490 (Fla. Dec. 31, 2020) which dictates that Florida’s adoption of the federal standard shall take effect on May 1, 2021.

The Wilsonart decision emerges from catastrophic car accident litigation where a man, Jon Lopez, lost his life. Counsel for the defendant in the circuit court, Wilsonart, LLC, had presented video dash cam evidence that their truck driver was not negligent in causing the accident that tragically killed Lopez. The defendant moved for summary judgment based on that evidence. To combat the video, Lopez presented evidence from a witness that stated that contrary to the video, the truck driver had encroached his lane at the time of the accident and as such, was negligent. The trial court granted summary judgment, but the Fifth District Court of Appeals reversed, stating that Florida’s existing summary judgment standard compelled reversal because of the fact dispute over encroachment of lanes between video evidence and an eyewitness.

On review, the Florida Supreme Court invited all interested parties, including members of the Florida Defense Lawyers Association, to weigh in on the question of whether Florida should adopt the federal summary judgment standard. Under that standard, a party moving for summary judgment is not required to overcome the extraordinarily reaching burden of negating any prospective fact dispute over the non-movant’s claim. Amicus briefs noted this would not only speed up litigation cycles in court, but it would also lead to more good-faith settlement and ultimately less expensive settlement negotiations, because plaintiffs would now need to show at the summary judgment stage that they have sufficient evidence for a jury to find in their favor, rather than simply enough evidence for a jury to prospectively find in their favor.

The decision, meant to “improve the fairness of Florida’s civil justice system,” particularly to defendants, requires Florida courts to abandon their expansive understanding of what constitutes a genuine issue of material fact. Specifically, the prior state standard for a genuine issue of fact (“slightest doubt”) is being replaced with the federal standard (whether a “reasonable jury could return a verdict for the nonmoving party”). Id. at 4–5. As the court wrote, “metaphysical doubt” will not be enough to generate a genuine issue of material fact to avoid summary judgment. Id. at 4. The decision ultimately aligns Florida with 38 other states that have adopted the Celotex Standard. While the rule will be adopted in May, the Florida Supreme Court is accepting public comment on the new rule to be submitted by members of the Florida Bar. Those wishing to make public comment must file the same with the Court by March 2, 2021.

When Repair vs. Routine is Key to Successful Labor Law Defense

In an action to recover damages for personal injuries, the plaintiff filed an Appeal from an order of the Supreme Court, Kings County, which granted the defendants' motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), denying plaintiff’s cross motion for summary judgment on the issue of liability, on the cause of action alleging a violation of Labor Law § 240(1) against the defendant Franklin Plaza Apartments, Inc.

Specifically, the plaintiff, an employee of a company contracted by the defendant Franklin Plaza Apartments, Inc., to maintain its boilers, was dispatched to prepare and test the boilers for an upcoming city inspection. During his work, he used an extension ladder to access the top of a boiler and was allegedly injured when the ladder fell to the ground.

The plaintiff commenced this action to recover damages for personal injuries, asserting, inter alia, causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The defendants moved for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).  The Supreme Court granted the defendants' motion and denied the plaintiff's cross motion. Accordingly, the plaintiff appealed the Supreme Court’s decision.

"'To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (Dahlia v S & K Distrib., LLC, 171 AD3d 1127, 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652-653 [internal quotation marks omitted]). "'In determining whether a particular activity constitutes "repairing," courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)'" (Dahlia v S & K Distrib., LLC, 171 AD3d at 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d at 653). Similarly, "'[r]outine maintenance is not within the ambit of Labor Law § 241(6)'" (Byrnes v Nursing Sisters of the Sick Poor, Inc., 170 AD3d 796, 797, quoting Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687, 688; see Dixson v Waterways at Bay Pointe Home Owners Assn, Inc., 112 AD3d 884, 885).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that the plaintiff was not performing a repair or alteration when he was injured, and was instead engaged in routine maintenance. The defendants' evidence showed that the plaintiff's work "involved replacing components that require replacement in the course of normal wear and tear" and did not constitute "repairing," "altering," or any other enumerated activity (See Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 49). In opposition, the plaintiff failed to raise a triable issue of fact.

The Appellate Court properly held in favor of the defendants, reasoning that plaintiff's work was not protected by Labor Law § 240(1). Most notably, the Court properly identified the distinction between repairs and routine maintenance, as plaintiff’s work was correctly categorized as routine maintenance, and as such, falling outside of the scope of section 240(1).

C&F Obtains Summary Judgement in Motor Vehicle Negligence Action

We recently obtained summary judgment in New Jersey Superior Court, Middlesex County, in a motor vehicle negligence action. In the Complaint, plaintiff alleged the defendant driver was negligent and careless in the ownership, operation, maintenance, and control of their vehicle causing severe and permanent injuries. Further, plaintiff alleged, the operator’s negligence was imputed to the owner of the motor vehicle.

In order to hold a party liable on a theory of negligence the plaintiff must establish four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages. In the context of this case, the law imposes upon the driver of an automobile the duty of exercising such care as is reasonable under all the circumstances confronting him/her at the particular time. Moreover, an owner of a motor vehicle cannot be held vicariously liable for the alleged negligence an operator of that motor vehicle unless it is determined that: (1) the operator of the vehicle was acting as the owner’s agent, servant, or employee; (2) the owner was present in the motor vehicle and maintained some control over its operation; (3) the owner entrusted its operation to an incompetent or unfit person; or (4) the owner and driver were engaged in a joint enterprise or partnership activity.

In this matter, plaintiff sustained injuries after being rear ended in a three (3) car motor vehicle accident. The plaintiff was stopped at a traffic light and the defendant operator was stopped directly behind the plaintiff. As the plaintiff and operator were stopped, the co-defendant struck the operator, which caused the operator to strike the plaintiff’s vehicle. As a result, plaintiff sustained multiple disc bulges, muscle spasms, hypertension/hyperflexion to the cervical and lumbar spine, and radiculopathy of the cervical and lumbar spine; these injuries were alleged to be permanent.

We argued the operator did not breach any duty owed as there is no evidence the operator operated the vehicle in a negligent manner that would have fallen below the duty owed to the plaintiff. Even if there was such a breach, the plaintiff did not and could not forward any evidence the negligence was the proximate cause of the plaintiff’s injuries. The operator was stopped behind the plaintiff at a traffic light; the operator did not make contact with the plaintiff’s vehicle prior to the co-defendant’s impact. As a result, the sole cause and proximate cause of the accident, was the force of the impact from the co-defendant’s vehicle. Lastly, we argued if any negligence was found upon the operator, it could not be imputed to the owner. The owner did not operate the vehicle, he did not entrust the vehicle to a person incompetent or unfit, he engaged in a joint enterprise activity, nor was the operator operating the vehicle on the behest of the owner as an agent, employee, or servant.

Subsequent to the filing of the motion, we appeared before the Court for oral arguments. Ultimately, the Court granted the motion for summary judgment in full against both the owner and operator.

"To Split or Not to Split"

Florida’s 2nd District Court of Appeals (“2nd DCA”) recently issued an opinion impacting fee splitting contingency agreements between law firms. Harmon Parker, P.A. vs. Santek Management, LLC a/a/o The Gerber Law Group, P.A., Case No. 2D18-4632. (September 25, 2020), dealt with a dispute between two law firms over the division of $3.16 million in contingency attorneys’ fees, which was derived from an $8 million personal injury settlement. In Harmon, the Plaintiff in the underlying case was rendered a quadriplegic from a car accident. He then executed a Contract for Representation with Gerber Law Group (“Gerber”), and the Contract provided for contingency attorneys' fees consistent with the schedule established in rule 4.15(f)(4)(B)(1) a.-d. of the Rules Regulating the Florida Bar. Plaintiff also entered a Personal Injury Contingency Fee Contract with Swope, Rodante, P.A. (“Swope”). Thereafter, the parties (Plaintiff, Gerber and Swope) filed a verified petition for approval of the attorneys’ fee contract, which was approved. Then, trial was set. At that time, Gerber had little to prepare for trial and recognized its lack of resources and experience to properly try the case. As such, Gerber contracted with Harmon Parker (“Parker”). The Plaintiff subsequently terminated their contract with Swope and contracted with Gerber and Parker. Following settlement, Gerber sought additional attorney’s fees from Parker. The trial court found that Harmon breached the agreement and granted directed verdict for Gerber. Harmon appealed.

On appeal, the 2nd DCA reasoned that Gerber and Harmon failed to comply with Rule 4-1.5 (f) (4) (D). The Rule applies to those situations where a contingency fee is to be split between lawyers not in the same firm. Because of the nature of the fee-splitting arrangement set forth in the parties’ agreement, Gerber and Harmon were required to seek court approval for that arrangement. Rule 4-1.5(f)(4)(D)(iii) required, amongst other requirements, that the petition filed with the court to be sworn, signed by all counsel, and to disclose in detail the service to be performed by each counsel. Here, Harmon, on behalf of Plaintiff, filed an unsworn petition for approval. Gerber did not sign the petition, and no Gerber attorney attended the hearing on the petition. Likewise, rule 4-1.5(f)(4)(D)(iii) required Gerber and Harmon to accept substantially equal active participation in the legal services.  The 2nd DCA found the noncompliance by both Gerber and Harmon to be substantial and significant. Accordingly, the 2nd DCA concluded that the fee-splitting agreement between Gerber and Harmon was void as against public policy and, thus, unenforceable.

New York Appellate Division Rules in Favor of Shopping Mall Tenants

In a recent decision by the Second Department of New York’s Appellate Division in July, the Court ruled in favor of mall shop owners in a premises liability matter. Athenas v. Simon Prop. Group, LP, 185 A.D. 3d 884 (2d Dept. 2020).  In this matter, the Court found that shopping mall tenants were entitled to summary judgment, wherein a patron was injured after slipping on a liquid cleaner spilled on the floor because the location where the accident occurred was within the common area of the mall, and the tenants had no contractual or common law duty to maintain it.

The plaintiff in this matter was allegedly injured when she slipped on cleaner in the interior common area of the mall, causing her to fall and sustain injuries.  The cleaner had been spilled by a janitor whom the defendant tenants had employed to clean their shops once a week as the janitor was making her way towards them.  Both the mall owner, Simon Properties, and the defendant tenants filed summary judgment motions independently.

In the defendant tenants’ motion, they asserted that they owed no duty to plaintiff as the accident occurred in the common area of the mall; as such, they were under no obligation (contractual or common law) to maintain it. According to New York law, “a tenant’s common law duty to maintain premises in a reasonably safe condition is limited to those areas which it occupies and controls, or makes a special use of.” See Knight v. 177 W. 26 Realty, LLC, 103 N.Y.S.3d 503 (2d Dept. 2019). Here, because plaintiff allegedly fell in the common area, the defendant tenants demonstrated they neither owned, nor had any control over the area where the plaintiff allegedly fell.

Moreover, the tenant defendants were able to dispute any liability as to the actions of the janitor under the theory of respondent superior because the janitor was an independent contractor.  Per the Court, “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means to achieve the results. Control over the means is the more important consideration” See Abouzeid v. Grgas, 743 N.Y.S. 2d 165 (2d Dept. 2002).  The court also considers five factors in making this determination: whether the worker (1) worked at his or her convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer’s payroll; and (5) was on a fixed schedule. Bynog v. Cipriani Group, 770 N.Y.S.2d 692 (2003).

The tenant defendants presented evidence that the janitor did not have fixed hours or days on which she worked.  Further, the janitor had several other clients for whom she performed cleaning services; she was paid cash without any tax withholdings and received no benefits or compensation.  Nor did the tenant defendants exert any supervision or control on the janitor and she independently decided which cleaning agents to use and where to use them.

The Appellate Division was convinced by the tenant defendants’ arguments and ruled that these tenant defendants had demonstrated their prima facie entitlement to summary judgment, dismissing the plaintiff’s complaint as to them by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of it.

Speculation is Not a Dangerous, Hazardous, or Defective Condition

Recently, the Second Judicial Department for the Supreme Court of the State of New York, Appellate Division addressed the question of whether a plaintiff’s premises liability negligence claims can survive a defendant’s Motion for Summary Judgment when the claims are based on speculation in Julia Coloni v. Stino, Inc., 2020 N.Y. Slip. Op. 05184 (2d Dept. 2020).  When a plaintiff’s claims are based upon a speculative dangerous, hazardous, or defective condition upon a property, the necessary element of “causation” of a negligence action cannot be established.  The Second Department found that when a plaintiff cannot identify a specific dangerous, hazardous, or defective condition, the trier of fact would be required to speculate as to the causation of a plaintiff’s fall and injuries as well as other key factors of an action.

In Coloni, the plaintiff allegedly sustained injuries when she was lawfully upon the premises of a restaurant, operated by the defendant, for a luncheon. The luncheon occurred in the restaurant’s party room which had wall-to-wall carpeting.  At some point, the plaintiff fell and sustained injuries.  The plaintiff commenced an action in the trial court to recover for her personal injuries sustained in a fall allegedly caused by the carpeting in the defendant’s restaurant which was maintained in a dangerous, hazardous, and/or defective condition. 

The plaintiff appeared for her deposition during discovery and gave testimony as to the accident dynamics; however, the plaintiff was unable to identify the cause of her fall.  In particular, the plaintiff’s testimony revealed “she did not know what caused her left foot to get stuck on the carpeting.”  The defendant moved for Summary Judgment before the trial court on the basis that plaintiff’s negligence action would cause a trier of fact to speculate as to the cause of plaintiff’s fall. The trial court granted the defendant’s motion which the Second Department affirmed.

Summary Judgment is difficult to obtain on negligence actions as the defendant must establish it did not create the defective condition which cause a plaintiff’s fall and lacked knowledge, both actual and constructive, of the alleged defective condition for a sufficient length of time.  Though, when a “plaintiff cannot identify the cause of his or her fall without engaging in speculation” a trier of fact’s determination on the issue of causation would likewise be speculative.  The Second Department found that because plaintiff was unable to identify the cause of her fall a jury would base a determination upon the plaintiff’s supposition which does not create a triable issue.  Moreover, the Second Department found that plaintiff’s deposition failed to present any triable issues on the element of causation thereby requiring a court to grant the defendant’s Summary Judgment motion as a matter of law.

From a defense perspective, Coloni, teaches us the importance of obtaining all the accident dynamics and the importance of establishing whether a known, definitive cause for a plaintiff’s fall exists.  If a plaintiff cannot identify the cause of his or her fall, entering the realm of speculation, then like in Coloni, then the likelihood of a successful Motion for Summary Judgment brought by a defendant being granted by a court is not mere speculation, but probable.