Legal Document: V. V. INDIVIDUALLY AND AS NEXT FRIEND TO MINOR C.O v. META PLATFORMS INC

On January 24, 2023 a NOTICE Authorities in Support of TT's Opposition to Defendant's Motion to Strike was filed involving a dispute between E. Q. Individually And As Next Friend To Minor C.O., V. V. Individually And As Next Friend To Minor C.O., and Eddie Rodriguez, Meta Platforms Inc, Reginald Sharp, Snapchat Llc, Snap Inc, for T90 - Torts - All other in the District Court of New Haven County.

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DOCKET NO. X06-UWY-CV23-5032685-S SUPERIOR COURT

V.V. and E.Q., individually and as next friends COMPLEX LITIGATION DOCKET
to minor C.O.
AT WATERBURY
Plaintiff(s),
v.

META PLATFORMS, INC., formally known
as FACEBOOK, INC.; SNAP, INC.; SNAP,
LLC; REGINALD SHARP; and EDDIE
RODRIGUEZ JANUARY 5, 2024

Defendant(s).
AUTHORITIES IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO STRIKE

For the Court’s reference, Plaintiffs provide the attached unpublished authorities cited in

their Opposition to Defendant’s Motion to Strike.

January 5, 2024 Respectfully Submitted,

BY: .
Michael R. Kennedy, Esq.
Kennedy, Johnson, Schwab & Roberge, LLC
555 Long Wharf Drive, 13th Floor
New Haven, CT 06511
Phone: (203) 865-8430
Fax: (203) 865-5345
Juris No.: 434045

SOCIAL MEDIA VICTIMS LAW CENTER
Matthew P. Bergman (pro hac)
matt@socialmediavictims.org
Sydney Lottes (pro hac)
sydney@socialmediavictims.org
600 1st Ave, Ste 102 - PMB 2383
Seattle, WA 98104
Phone: (206) 741-4862
Brookes v. Lyft Inc, 2022 WL 19799628 (2022)

2022 WL 19799628 (Fla.Cir.Ct.) (Trial Order)
Circuit Court of Florida,
Fifteenth Judicial Circuit.
Palm Beach County

Teresa BROOKES, Plaintiff,
v.
LYFT INC, Lyft Florida Inc, Hertz Corporation, and Wilky Ilet, Defendants.

No. 50-2019-CA-004782-XXXX-MB.
September 30, 2022.

*1 CIRCUIT CIVIL DIVISION AD

Order Denying Defendant Lyft's Motion for Partial Summary
Judgment as to Plaintiff's Product Liabiltiy Claims (Counts VI-VIII)

Glen R. Goldsmith, Esq, 9500 S Dadeland Blvd, Suite 601, Miami, FL 33156, ggoldsmith@goldsmithpa.com,
Lchacon@goldsmithpa.com.

Jane Kreusler-Walsh, 501 S Flagler Dr, Suite 503, West Palm Beach, FL 33401, Janewalsh@kwvsappeals.com,
cservice@kwvsappeals.com, kwcvpa@gmail.com, cservice@kwcvpa.com.

Jeanmarte Whalen, 2401 PGA Blvd, Ste 140, Palm Beach Gardens, FL 33410, eservice@dcwlaw.com, jw@dcwlaw.com,
rrg@dcwlaw.com, msaunders@slawsonlaw.com.

Jens C. Ruiz, 80 Southwest 8th Street, Miami, FL 33130, jruiz@rumberger.com, jruizsecy@rumberger.com,
docketingmiami@rumberger.com.

Matthew Thomas Christ, mtc@dcwlaw.com, EService@dewlaw.com.

Rebecca Vargas, rvargas@kwvsappeals.com, cservice@kwvsappeals.com.

Scott M. Sarason##80 SW 8th St, Suite 3000 Brickell, Bayview Centre, Miami, FL 33130, ssarason@rumberger.com,
docketingmiami@rumberger.com, ssarasonsecy@rumberger.com.

Scott M. Sarason, ssarason@rumberger.com, ssarasonsecy@rumberger.com.

Mark Bideau, 777 South Flagler Drive, Suite 300 East, West Palm Beach, FL, 33416-0629, bideau@gtlaw.com,
FLService@gtlaw.com, thomasd@gtlaw.com.

Jaimie R. Goodman, Circuit Judge.

THIS CAUSE came before the Court for hearing on Defendant Lyft Inc. d/b/a Lyft Florida, Inc.'s (hereinafter referred to as
“Lyft” or “Defendant Lyft”) Motion for Partial Summary Judgment as to Plaintiff's product liability claims (Counts VI-VIII).
This Court has reviewed the Motion, the Response, the Reply, and all the supplemental memoranda and material submitted by
counsel. The Court also heard oral argument from counsel. Upon careful consideration of all the submissions and arguments
presented, the Court finds as follows:

1. Plaintiff Teresa Brookes (“Plaintiff”) was struck by a vehicle that was driven by Defendant Wilky Ilet (“Defendant Ilet”)
while he was a Lyft driver operating a rental vehicle through the Lyft Express Drive Program The vehicle driven by Defendant
Ilet utilized a Lyft digital application network. The application network was designed by Lyft.

2. Defendant Lyft seeks dismissal of Counts VI-VIII of Plaintiff's cause of action. This Court has previously denied Defendant's
Motion for Partial Summary Judgment as to proximate causation. (See Court Docket Entry No. 385). This Court found that
there was sufficient evidence in the summary judgment record for a jury to conclude whether the Lyft application distracted
Defendant Ilet and thereby caused the accident resulting in injury to Plaintiff.

3. Defendant Lyft maintains in this instant motion for summary judgment that the Lyft application is not a “product” that Lyft sold
to consumers and that this is a threshold prerequisite for a product liability claim Lyft argues that its application is a “service”.

4. Defendant Lyft is the designer, provider, and the sole distributor of the Lyft application. Lyft distributes the application into
the stream of commerce. Lyft profits from the distribution of its application into the marketplace.

5. This type of ride sharing software application network has been described as “a multi-faceted product of new technology”.
See McGillis v. Department of Economic Opportunity, 210 So, 3d 220, 223, (Fla, 3rd DCA 2017). While McGillis addressed
whether a driver who performed transportation services with Uber's software application network was an “employee” and not
whether the application was a “product” under product liability law, there was a recognition “regarding the changes rippling
through our society as a result of the technology at issue”, The appellate court in McGillis had to decide, albeit a different
context, “whether a multi-faceted product of new technology should be fixed into either the old square hole or the old round
hole of existing legal categories, when neither is a perfect fit”. Id.

6. The Lyft application is a technology platform that connects drivers with paying customers seeking transportation services.
Defendant Ilet had access to the Lyft technology known as the Lyft application through Lyft's express drive program. Count
VIII of Plaintiff's action is a strict liability claim wherein she claims that the Lyft application was unreasonably dangerous
because, as designed, it required Defendant Ilet to take his eyes off the road in order to search for Lyft passengers, and to
respond to requests delivered from the Lyft application. The essence of a strict liability action is that a manufacturer is liable
only when its product is used as intended. The focus is on the product itself. Counts VI and VII set forth direct negligence
claims predicated on the claim that the application as negligently designed by Lyft and that the negligent design in conjunction
with Lyft's business practices caused Defendant Ilet to be distracted while driving thereby causing the accident involving the
Plaintiff. Plaintiff maintains that the Lyft application itself is defective because of the way it habituates and distracts Lyft drivers
to constantly monitor the application,

*2 7., The question of whether the Lyft application is a product or a service for purposes of product liability law, is purely
a legal question, There is no Florida precedent that has directly addressed this question. A review of the case law in other
jurisdictions is sparse and is inconclusive as it relates to whether the Lyft application is deemed a product or service under
Florida product lability law.

8. A review of Florida case law leads this Court to the conclusion that the Lyft application at issue in this instant case, is a
product for purposes of Florida product liability law. It is undisputed that Lyft is the designer of the Lyft application and placed
the application into the marketplace. The Florida Supreme Court in West v. Caterpillar Tractor Co., 336 So. 2d 80, 86-87 (Fla.
1976) held that “strict liability should be imposed only when a product the manufacturer places on the market, knowing that it
is to be used without inspection for defects, proves to have a defect that causes injury to a human being”. In setting forth the
public policy rationale for the imposition of strict liability, the Florida Supreme Court in West found that “the cost of injuries
or damages, either to persons or property, resulting from defective products should be borne by the makers of the products who
put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect the
themselves”. Id. at 92.

9. The doctrine of strict product liability set forth in West has also been applied to commercial lessors who were in the business
of leasing a sailboat, the alleged defective product. The Florida Supreme Court held that those entities within the distributive
chain of a product who profit from the distribution of the product were deemed to be “in a better position to ensure the safety
of the products they market, to insure against defects in these products, and to spread the cost of any injuries resulting from a
defect”. See Samuel Friedland Family Enter. v. Amoroso, 630 So. 2d 1067, 1068, 1070-1071 (Fla. 1994).

10. The Florida Supreme Court has also found that the “public policy which protects the user and the consumer of a manufactured
article should also protect the innocent bystander”. The Court in West held that a manufacturer may be held liable under the
theory of strict liability for injury to a bystander. West, 336 So. 2d at 89. “This doctrine of strict liability applies when harm befalls
a foreseeable bystander who comes within range of the danger”. Id. at 92. This duty is also applied to bystanders in negligence
based on product liability claims, See Moffat v. U.S. Foundry & Mftg Corp., 551 So. 2d 592, 593 (Fla. 2nd DCA 1989).

11. The Plaintiff in this case maintains she was an innocent bystander while Defendant Ilet was driving a vehicle that utilized
the Lyft application. Lyft designed the application and distributed the application to be utilized in rental vehicles such as the
one driven by Defendant Ilet through the Lyft Express Drive Program

12. Lyft is the designer and sole distributor of the Lyft application. Lyft made the design choices for the application and
established the mass marketing and distribution of its application Lyft cannot credibly argue that it is insulated from product
liability claims of negligence and defective design because it uses its own product-the Lyft application-to provide a service.

*3 13. Lyft's reliance on a number of Florida cases to depict its application as a service and not a product, is misplaced. In
Porter v. Rosenberg, 650 So. 2d 79 (Fla. 4th DCA 1995), the plaintiff brought a product liability claim against a physician/plastic
surgeon who implanted a breast implant, The physician/ plastic surgeon who supplied the product (breast implant) to the patient /
plaintiff was not the designer or distributor of the product, The physician performed a medical service by placement of the
implant in the patient by exercising medical judgment. The provision of the product in Rosenberg was “integrally related to the
professional services and skill offered by the medical care provider”. Id. at 82. The use of the product in that case “was incidental
to the provision of medical services”. Id. The 4th DCA in Rosenberg found that distributing products was not part of the medical
care provider's business, Id. at 83. The physician in Rosenberg did not design, produce or distribute the product. The medical
care provider under these circumstances was not in a position to deter the distribution and production of the defective implant.
Id. at 82. It was in this context that the 4 th DCA held that a strict liability action was inapplicable against the plastic surgeon,

14. In this instant case, Lyft's connection to the application is not simply the use of it to provide a service. Lyft is the designer and
distributor of the application, Lyft's role is not akin to a doctor exercising his/her professional medical judgment and expertise
in selecting the appropriate implant and the surgery inserting the implant to the patient. Lyft should be responsible for any
harm caused by its digital application in the same way the designer of any defective physical product is held accountable. The
Plaintiffs claims in this case arise from the alleged defective design choices and the negligent design in conjunction with Lyft's
business practices, Lyft was in the best position to control the risk of harm associated with its digital application.

15. As set forth by the Florida Supreme Court in West and its progeny, product liability shifts the burden to ensure a safe, non-
defective product on the party who is most able to protect against the harm and bear the cost. See Aubin v. Union Carioid
Corp. 177 So. 3d 489, 502-503 (Fla. 2015). The principles set forth in West have been “applied for almost four decades to
cases involving a variety of products and contexts.” Id. at 503. There is no generally accepted definition of “product” that
prevails in the reported cases. The definition of “product” should be fluid to accommodate developments in technology and is
not susceptible to a “crabbed” definition. Decisions regarding what constitutes a “product” are reached in light of public policy
behind the imposition of strict product liability.

16. Lyft designed and distributed the Lyft application into the stream of commerce. Lyft derives revenue and profit from
distribution and the use of the Lyft application. In fact, Lyft has maintained in another case that the commissions it receives
from payment by Lyft riders constitutes a trade secret. In Cotter v. Lyft, 2016 WL 3654454 (ND Cal. June 23, 2016), the Federal

District Court held that “the total amount of commissions Lyft took from Prime Time payments, i.e. its revenue from this
product, is not a trade secret”. In addressing a similar case involving Uber's records as to the sum of money paid by Uber to
Broward County as a usage fee, the Fourth District Court of Appeals noted that The Federal District Court in Cotter “found
that Lyft's commissions and revenue from certain products were not trade secrets”. See Raiser-DC LLC v. B&L Serv., Inc., 237
So. 3d 374, 376 (Fla. 4th DCA 2018).

17. The Lyft application in This particular case is a “product” for purposes of Florida product liability law. This is consistent
with the Florida Supreme Court precedent in West and its progeny. The cases cited by Defendant from appellate courts in Florida
are all distinguishable, as Lyft is the designer and distributor of the Lyft application utilized in the vehicle driven by Defendant
Ilet. Lyft's business model is a transportation network company in which it connects riders with drivers. However, the Lyft
application is designed and distributed by Lyft to carry out that business model. Lyft also generates revenue and profits from the
application that it designs and distributes. Lyft was responsible for placing the Lyft application in the stream of commerce and
had the ability to control any risk or harm the design of the Lyft application might cause once put into the stream of commerce.
These factors are relevant in determining whether a strict liability claim can be brought against Lyft. See e.g. Rivera v. Baby
Trend, Inc., 914 So. 2d 1102, 1104-1105 (Fla. 4 th DCA 2005).

*4 18. Case law cited by Lyft from outside this jurisdiction does not change this Court's analysis. None of the California
Superior Court cases cited by Lyft apply or address Florida case law in product liability claims. Neither of the two cases cited
by Lyft are persuasive or provide meaningful direction to this Court as to the core issue of whether the Lyft application designed
and distributed by Lyft in the rental vehicle driven by Defendant Ilet that generated Lyft revenue, constitutes a product. These
cases did not address or mention Lyft's role as a designer and distributor of the Lyft application. These cases did not address or
mention Lyft's generation of revenue as a result of its distribution of the Lyft application. The California state court trial judge
did acknowledge that it did not find any legal authority determining whether the Uber application is a product or not.

19. Lyft also cites to a Federal District Court case in the State of Washington: Quinteros v. Innogames, 2022 WL 898560 at page
7 (W.D. Wash. Mareh 28, 2022). That case involved whether “Forge of Empires” and other online games are a “product” under
Washington's product liability law. The Federal District Court recognized that the term “product” is defined under Washington's
product liability statute. The court held, applying the statutory definition, that “Forge of Empires” software as a service, not
an object”, and therefore, the product liability law claims fails as a matter of law. Florida has no such statutory definition of
“product”. Further, one of the cases cited and relied upon in Quinteros is a Federal District Court decision in James v. Meow
Media Inc., 90 F. Supp. 2d 798, 811 (W.D. Ky. 2000) In James, the district court held that video games were not “products”
under product liability law and focused on “whether thoughts, ideas, and messages contained in a movie, video game, or website
material constitute a product for purposes of strict product liability law”. Id. at 809-810. The Court in James held only “that
intangible thoughts, ideas, and expressive content are not “products” under strict product liability doctrine. Id. at 811. The
Court in James distinguished between the physical or tangible properties of website materials, and the intangible properties -
i.e. the intangible thoughts, ideas, and messages contained with video games and websites. Product liability law is not geared
toward intangible thoughts, expressions, messages or ideas, whereas the tangible properties of websites can be subject to product
liability law. Id. at 810-811.

20. The line drawn was whether the properties of the website or software application that caused the harm to a plaintiff were
“tangible” or “intangible”. In Quinteros and James, it was not the design of the video game or website that caused the alleged
harm it was the thoughts, expressions, and ideas contained within the video games or website that caused the harm. The
distinction between tangible and intangible properties is also covered in the Restatement (Third) of Torts Section 19(1998)
comment d to Section 19(a). The comments section for Section 19 of the Restatement (Third) notes that courts have appropriately
refused to impose strict product liability in cases where the plaintiff's grievances were “with the information, not with the
tangible medium”. However, the tangible medium itself which delivers the information is “clearly a product”. Id. at comment
d. The Reporter's notes comments also reflect that “computer software might be considered a product for purposes of strict
liability in tort.” Id. at Reporter's Notes, comment d.

21. Plaintiff's claim in this instant case is not based on expressions or ideas transmitted by the Lyft application. It is based on the
design of the application itself that was designed and distributed by Lyft into the stream of commerce. Plaintiff's product liability
claim is based on defects in Lyft's mass produced technically designed application. The Plaintiff presented admissible evidence
that Lyft made design choices when it decided how, when and with what frequency the Lyft application requires of the driver's
attention. Lyft was in the best position to protect aginst any alleged risk of harm caused by those design choices. Plaintiffs
product liability claim arises from the defect in Lyft's application, not from the idea or expressions in the Lyft application.

*5 22. The Florida Supreme Court has made clear that the policy for imposing strict products liability on the designer or
manufacturer of a product is to protect the user and innocent bystanders from unreasonably dangerous products or products
fraught with unexpected dangers. West v. Caterpillar Tractor Co., 336 So. 2d 86-87. If Lyft had designed commercial laundry
machines and mass distributed them to laundromats operated by third-parties to provide a laundry service, Lyft could not
credibly argue that the laundry machine was a service and not a product under a product liability claim for a design defect with
the laundry machine. There is no rational basis to distinguish this Lyft application just because it involves enhanced technology
from a laundry machine or any tangible object designed and distributed by an entity that causes harm due to a defective design.
In both cases, the designer of the hypothetical Lyft laundry machine and the Lyft application placed into the stream of commerce
to derive a profit, is in the best position to protect the user and innocent bystander against the risk of harm associated with
any design defect.

23. The Restatement (Third) of Torts explanation on the distinction between a “product” and “service” under product liability
law, is also instuctive. In the Reporter's notes to comment (f), the Restatement notes set forth that strict liability does not extend
to professionally provided services such as medical or legal assistance. It also does not apply to individuals who install or repair
things. Id. at Reporter's notes, comment f. Each of these service providers provide an individualized service for customers,
and have not designed, or marketed the product. Unlike these services, Lyft's application is designed, distributed, and mass
marketed by Lyft.

24. The Lyft application is a product under Florida law for purpose of Plaintiffs product liability claims in this case. Lyft's
reliance on the Transportation Network Companies (TNC) statute, Section 627.748, Fla. Stat. is misplaced as it relates to its
argument that its application is not a product. The TNC statute does not make any mention of product liability claims. There
is no indication whatever in the statutory text of any intent to insulate Lyft or any other transportation network company from
product liability claims associated with the design of its application. While the TNC statute does define a digital network as any
“online technology application service, website or system”, this does not make a digital application a service and not a product
for purposes of product liability law. Lyft's argument runs contrary to clear statutory text of the TNC statute.

25. The TNC statute cannot possibly be read as an approval of the design of Lyft's application. There is no provision in the
TNC statute that sets forth that Lyft's application is safe and tree from defects. The TNC statute expressly addresses a broad
range of topics that relate to transportation network companies. The statute covers TNC drivers insurance requirements, TNC
insurance requirements, fare transparency, insurance disclosure and exclusions, digital advertising devices, zero tolerance for
alcohol or drug abuse, driver eligibility, nondiscrimination policies, requirements for determining whether a TNC driver is an
independent contractor, retention of records and preemption of county and municipal laws. There is no mention of “product
liability” in the statute. When a statute like this one is detailed and precise, the statutory text's plain meaning cannot logically be
read to impose a prohibition on product liability claims. The statutory text and structure of the TNC statute and precise. Product
liability claims are not preempted against TNC companies like Lyft due to an alleged defect in the Lyft application. When a
statute lists the areas to which it applies, it will be construed as excluding from its reach any areas not expressly listed. Brown
v. State, 263 So. 3d 48, 51 (Fla. 4 th DCA 2018).

26. It is also a clear rule of staturory construction that “a statute will not displace the common law unless the legislature expressly
indicates an intention to do so”. Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997). The Legislature did not express
an intention to displace the common law of product liability in the TNC statute or to define the nature of a TNC application
for purposes of product liability law.

*6 27. Lyft also contends that the 2020 Amendment to the TNC statutes bars Plaintiffs product liability claims. The 2020
Amendment became effective on June 23, 2020, after the date of the accident in this case and after Plaintiff filed this lawsuit.
There is nothing within the statutory text of the 2020 Amendment that suggests the Legislature intended that it apply to claims
brought before the 2020 Amendment.

28. Absent clear legislative intent, a law affecting substantive rights is presumed to apply prospectively. See Alamo Rent-A-Car
v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Substantive law “prescribes duties and rights and procedural law concerns the
means and methods to apply and enforce these rights and duties”. Id. An application of the principles makes it clear that the
2020 Amendment to the TNC statute affects substantive rights, liabilities and duties, and cannot be applied retroactively. See
Arrow Air Inc. v. Walsh, 645 So. 2d 422, 425 (Fla. 1994).

29. The 2020 Amendment is also not applicable to Plaintiff's claims against Lyft in Counts VI-VIII as these counts are not
vicarious liability claims. The 2020 Amendment concerns claims against TNC's for vicarious liability “by reason of owning,
operating, or maintaining the digital network accessed by a TNC driver or rider”. Section 627.74808} Fla. Stat. (2020). The
2020 Amendment is titled “Vicarious Liability”. Id. The statute also specifically provides that this subsection “does not alter or
reduce… the liability of any person other than the vicarious liability of a TNC as described in subsection (a)”. Id. at subsection
(b). The statutory text is clear that the 2020 Amendment applies to vicarious liability claims. A vicariously liable party engages
in no wrongful conduct. See Grobman v. Posey, 863 So. 2d 1230, 1236 (Fla. 4 th DCA 2003) cited in Mainstreet Entertainment,
Inc. v. Faircloth, 342 So. 3d 232, 236 (1st DCA 2022). Plaintiffs claim in Counts VI-VIII that Lyft is liable for its conduct in
the defective design of its application and its negligent conduct with respect to the design of the application and its business
practices.

30. Lyft also maintains that there is no summary judgment evidence that the Lyft application is defective or unreasonably
dangerous. Upon review of the summary judgment record, this Court disagrees with Lyft's position. There is sufficient evidence
presented for a jury to conclude whether the Lyft application distracted Defendant Ilet and thereby caused the accident resulting
in injury to Plaintiff. This Court has already found that the testimony of Dr. Mary Cummings is admissible and not speculative
or conjecture. The Court incorporates by reference the findings made by the Court as to Dr. Cummings' testimony in its Order
Denying Plaintiffs Motion for Partial Summary Judgment as to Plaintiffs product liability claims entered on February 24, 2022
(See Court Docket Entry No. 385-paragraphs 10-14 and 17-19 of the Order Denying Partial Summary Judgment).

31. The record evidence can support a conclusion that the Lyft application was defectively designed and unreasonably dangerous.
There is also sufficient evidence at summary judgment to allow a reasonable fact finder to conclude that Defendant Ilet monitored
the Lyft application as Lyft intended the application to be used. Plaintiff presented admissible evidence that Lyft designed the
application so that it can be monitored while driving without restriction. There is admissible evidence that Lyft's design of the
Lyft application caused Defendant Ilet to be distracted at the time of the accident, thereby causing injury to a bystander-in this
case, the Plaintiff.

*7 32. Lyft also maintains that it owed no legal duty to Plaintiff as it relates to the negligence based products liability claims.
Lyft's position is incorrect. The Florida Supreme Court has held that the legal duty element focuses on whether the defendant's
conduct foreseeably created a “broader zone of risk” that poses a general threat of harm to others. McCain v. Florida Power
Corp., 593 So. 2d 500, 502- 503 (Fa. 1993). A defendant whose conduct creates a foreseeable zone of risk has a duty to “either
lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses”. A “legal duty
will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others”. Id. at 503. The legal duty
requirement “is a minimal threshold legal requirement for opening the courtroom doors.” Id. at 502. The “trial and appellate
courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant”. Id. at 503.

33. A legal duty does require more than foreseeability alone. A duty requires that a party be in a position to “control the risk”.
Surloff v. Regions Bank, 179 So.3d 472, 475 (Fla. 4th DCA 2015). It was reasonably foreseeable that a pedestrian bystander

could be injured by a vehicle driven by a driver using the Lyft application. Plaintiff has presented admissible evidence from
Dr. Cummings that the Lyft application is defective because of its tendency to distract drivers from focusing on the road and
pedestrians. There is record evidence that the Lyft application required Defendant Ilet to make a decision within 15 seconds
whether to accept a ride request. Lyft also provided Defendant Ilet incentive to monitor and frequently scan the Lyft application
for ride requests and notifications.

34. There is record evidence that Lyft built into the design of its application functions and features that incentivized and
habituated drivers to focus and maintain attention to the Lyft application. It was reasonably foreseeable that a pedestrian could be
injured by a vehicle driven by a driver distracted by the Lyft application. There is record summary judgment evidence presented
that Lyft designed its application and its business model in a maimer that promoted distracted driving. Lyft was, as the designer
of the application, in a position to control any risk of harm to bystanders-pedestrians such as the Plaintiff. Lyft therefore had
a legal duty to Plaintiff.

For all the reasons set forth above, it is hereby

ORDERED and ADJUDGED that Defendant Lyft's Motion for Partial Summary Judgment as to Plaintiff's Product Liability
Claims-Counts VI-VIII is DENIED. As all dispositive motions have now been ruled upon and all discovery has been concluded,
lead trial counsel for the parties shall prepare a Joint Trial Report by October 7, 2022 as to any motions in limine that need to
be addressed and potential trial dates. Upon receipt of the Joint Trial Report, the Court

DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County, Florida.

50-2019-CA 004782-XXXX-MB 09/30/2022

Jamie R. Goodman Circuit Judge

50-2019-CA-004782-XXXX-MB 09/30/2022

Jaimie R. Goodman Circuit Judge

COPIES TO:

GLEN R. GOLDSMITH, ESQ 9500 S DADELAND BLVD ggoldsmith@goldsmithpa.com

SUITE 601 Lchacon@goldsmithpa.com

MIAMI, FL 33156

JANE KREUSLER-WALSH 501 S FLAGLER DR JANEWALSH@KWVSAPPE
ALS.COM

SUITE 503

WEST PALM BEACH, FL cservice@kwvsappeals.com

33401 kwcvpa@gmail.com

cservice@kwcvpa.com

JEANMARTE WHALEN 2401 PGA BLVD ESERVICE@DCWLAW.COM

STE 140 jw@dcwlaw.com

PALM BEACH GARDENS, FL 33410 rrg@dcwlaw.com

msaunders@slawsonlaw.com

JENS C. RUIZ 80 SOUTHWEST 8TH JRUIZ@RUMBERGER.COM

STREET jruizsecy@rumberger.com

MIAMI, FL 33130 docketingmiami@rumberger.com

MATTHEW THOMAS CHRIST No Address Available MTC@dcwlaw.com

EService@dewlaw.com

REBECCA VARGAS No Address Available rvargas@kwvsappeals.com

cservice@kwvsappeals.com

SCOTT M. SARASON 80 SW 8TH ST *8
SSARASON@RUMBERGER.COM

SUITE 3000 BRICKELL

BAYVIEW CENTRE docketingmiami@rumberger.com

MIAMI, FL 33130

ssarasonsecy@rumberger.com

SCOTT M. SARASON No Address Available ssarason@rumberger.com

ssarasonsecy@rumberger.com

MARK BIDEAU 777 SOUTH FLAGLER bideau@gtlaw.com

DRIVE FLService@gtlaw.com

SUITE 300 EAST thomasd@gtlaw.com

WEST PALM BEACH, FL

33416-0629

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 8
Caputo v. Brainard North Associates, LLC, Not Reported in Atl. Rptr. (2019)
68 Conn. L. Rptr. 721

2019 WL 3248546 *2 Counts two through four sound in breach of contract
stemming from Vermont Mutual's failure to pay the plaintiff
UNPUBLISHED OPINION. CHECK COURT RULES insurance benefits in accordance with its policy. Specifically,
BEFORE CITING. in count two, the plaintiff alleges that at the time of the
Superior Court of Connecticut, accident on July 25, 2016, the plaintiff was a third-party
Judicial District of Hartford at Hartford. beneficiary under an insurance policy issued by Vermont
Mutual. The Vermont Mutual insurance policy protects
Mark CAPUTO and provides medical coverage to invitees and third-parties
v. who are injured while on the defendant's property. As an
BRAINARD NORTH ASSOCIATES, LLC invitee and third-party beneficiary legally on the defendant's
premises at the time he was injured, the plaintiff would qualify
HHDCV186092061S under Vermont Mutual's policy. Despite Vermont Mutual's
| obligation to pay for the plaintiff's medical care pursuant to
June 7, 2019 their insurance policy, the defendant has refused to provide
the plaintiff with any payments or benefits.
Opinion

Peck, JTR Count three alleges that Vermont Mutual denied the
plaintiff's insurance benefits in bad faith. Based on Vermont
*1 The plaintiff, Mark Caputo, brings this lawsuit in four Mutual's insurance policy, the plaintiff was an intended
counts against the defendants, Brainard North Associates, third-party beneficiary, which created mutual obligations
LLC (Brainard North), and Vermont Mutual Insurance including requirements that the plaintiff report and submit
Company (Vermont Mutual). Count one alleges negligence medical expenses within one year of the date of the
based on premises liability against Brainard North. The accident and Vermont Mutual's subsequent obligation to pay
remaining three counts allege multiple claims of breach of those expenses, regardless of fault. Despite the plaintiff's
contract against Vermont Mutual. Pending before the court is compliance with his obligations under the policy, Vermont
Vermont Mutual's motion to strike counts two, three, and four Mutual continued to deny and/or withhold benefits. The
of the plaintiff's complaint. plaintiff alleges that Vermont Mutual and its agent's conduct
was deliberate and exercised in bad faith, with the purpose
In his complaint, filed on April 2, 2018, the plaintiff alleges of withholding the plaintiff's insurance payments. Although
the following facts as to each of the four counts. On July Vermont Mutual and its agents knew that the plaintiff fulfilled
25, 2016, the plaintiff was a tenant legally on the property his obligations under the policy, they still required the plaintiff
of the record owner Brainard North. As the owner of the to submit his medical expenses to Medicare for payment. At
property, it was Brainard North's duty to exercise reasonable that point, Vermont Mutual made it clear that they would only
care to maintain the premises for lawful entrants on the remain secondarily responsible for any remaining balance
property, including the plaintiff. On the date of the accident, after the Medicare payout. Vermont Mutual knew that such
and for some time leading up to the incident, the stairwell a precondition was not a prerequisite under the policy and
adjacent to the plaintiff's unit was in a dangerous and defective yet misrepresented and misapplied this requirement to excuse
condition, as the stairs were weathered, in disrepair, or payment of the plaintiff's medical expenses. Additionally,
were otherwise not in sufficient working condition. While Vermont Mutual refused to make any payments until the
attempting to use the stairs on July 25, 2016, the plaintiff fell plaintiff's legal claims against the insured party, Brainard
and suffered injuries, including severe and permanent injuries North, had been resolved, at which point Vermont Mutual
to his neck, right forearm, lower back, groin, hip, and right conveyed that they would still only pay for expenses not
knee, in addition to mental anguish and various bruises and covered by Medicare. Again, these requirements were not
abrasions. 1 The plaintiff's accident and subsequent injuries presently located anywhere within the insurance policy.
were directly caused by Brainard North's negligent and/or Vermont Mutual's continued misrepresentations were simply
aimed at curtailing the plaintiff's required disbursements. All
careless conduct. 2 The plaintiff has continued to suffer from
of Vermont Mutual's actions were conducted with a dishonest
these injuries, some of which are long-term and could result
in permanent disability.

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
Caputo v. Brainard North Associates, LLC, Not Reported in Atl. Rptr. (2019)
68 Conn. L. Rptr. 721

motive and with the intent of intentionally or purposefully the trial court ... [The court] construe[s] the complaint in the
denying the plaintiff's insurance benefits. manner most favorable to sustaining its legal sufficiency ...
Thus, [i]f facts provable in the complaint would support
Count four alleges that Vermont Mutual engaged in the a cause of action, the motion to strike must be denied ...
aforementioned behavior deliberately and maliciously, as It is fundamental that in determining the sufficiency of a
to avoid paying insurance proceeds under the policy. complaint challenged by a defendant's motion to strike, all
Specifically, the plaintiff argues that Vermont Mutual's well-pleaded facts and those facts necessarily implied from
conduct violated § 38A-816(1) of the Connecticut the allegations are taken as admitted ... Indeed, pleadings must
Unfair Insurance Practices Act (CUIPA), in that they be construed broadly and realistically, rather than narrowly
perpetuated false statements that misrepresented the benefits, and technically.” (Internal quotation marks omitted.) Geysen
advantages, conditions, or terms of the company's insurance v. Securitas Security Services USA, Inc., 322 Conn. 398, 398,
policy. Vermont Mutual also allegedly violated CUIPA § 142 A.3d 227 (2016). Under Practice Book § 11-3, “[t]he
38A-816(15) by failing to pay or reimburse the plaintiff, exclusive remedy for misjoinder of parties is by motion to
or his healthcare providers, within the requisite statutory strike.” “A motion to strike shall be used whenever any party
time frame. Additionally, the plaintiff maintains that Vermont wishes to contest ... (4) the joining of two or more causes
Mutual violated 42 U.S.C.A. § 1395y(B)(2)(a)(ii), as it of action which cannot properly be united in one complaint,
knowingly refused to pay the plaintiff's covered medical whether the same be stated in one or more counts ...” Practice
expenses on the premise that its policy was a secondary Book § 10-39(a).
repayment option to Medicare. This notion is in direct
contravention of the Medicare statute and contrary to the Vermont Mutual argues that counts two through four of the
public policy of preserving Medicare funds by ensuring that plaintiff's complaint are improperly joined with count one
accident-related medical expenses are paid for from primary because the plaintiff's complaint joins multiple causes of
insurance sources. Vermont Mutual actively violated the action that do not arise out of the same transaction, which
Connecticut Unfair Trade Practices Act (CUTPA), which could lead to prejudice and confusion. They further argue that
has resulted in a significant loss to the plaintiff and the count one pertains solely to a negligence action against the
commencement of this suit. property owner, Brainard North, while counts two through
four allege an entirely distinct breach of contract claim against
*3 On June 7, 2018, Vermont Mutual filed a motion to the property's insurer, Vermont Mutual. Moreover, Vermont
strike counts two through four of the plaintiff's complaint for Mutual argues that count one is grounded in a negligence
misjoinder. The motion has been fully briefed by the parties claim stemming from Brainard North's improper maintenance
and was argued before the court at short calendar on February of a faulty staircase, which resulted in the plaintiff's injury.
19, 2019. In support of the motion to strike, Vermont Mutual This claim, they contend, is wholeheartedly different than the
argues that the plaintiff improperly incorporated separate and plaintiff's breach of contract claim against Vermont Mutual.
distinct claims against two different defendants, which did not Instead, Vermont Mutual contends that counts two through
arise out of the same transaction, into a singular complaint. four of the complaint allege breach of contract violations
Vermont Mutual also contends that such a cohabitation of against the company for actions that occurred subsequent to
offenses will prejudice both of the defendants and has the the plaintiff's initial injury. Namely, that counts two through
potential to confuse the trier of fact. four arise out of Vermont Mutual's alleged mishandling of
the plaintiff's subsequent insurance claim, which does not
arise out of the same transaction as count one. Additionally,
Vermont Mutual asserts that encompassing all of these claims
DISCUSSION
into a single complaint could confuse jurors and should
“The purpose of a motion to strike is to contest ... the therefore be stricken. In response, the plaintiff counters that
legal sufficiency of the allegations of any complaint ... to the allegations set forth in the complaint arise out of the same
state a claim upon which relief can be granted.” (Internal transaction and should be tried together, as to further judicial
quotation marks omitted.) Fort Trumbull Conservancy, LLC economy and to prevent injustice that would occur if the
v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). plaintiff was required to plead essentially the same evidence
“[A] motion to strike challenges the legal sufficiency of a in two separate trials. The plaintiff's main contention is that all
pleading and, consequently, requires no factual findings by four counts represented in the complaint directly stem from

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2
Caputo v. Brainard North Associates, LLC, Not Reported in Atl. Rptr. (2019)
68 Conn. L. Rptr. 721

the plaintiff's initial injury, and are therefore rightly joined Restaurant, LLC, Superior Court, judicial district of Ansonia-
together in the present action. Milford, Docket No. CV-04-0084313-S (August 2, 2004,
Lager, J.) [37 Conn. L. Rptr. 659]. “The purpose of joinder
*4 “In any civil action the plaintiff may include in the

Case Info

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Barbara N. Bellis Track Judge’s New Case

Case No.

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Document Filed Date

January 05, 2024

Case Filing Date

January 24, 2023

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Parties

1153 EAST STREET SOUTH Attorney for the Defendant
177 WESTON STREET Attorney for the Defendant
CARMODY TORRANCE SANDAK & HENNESSEY LLP Attorney for the Defendant
EDDIE RODRIGUEZ Defendant
E. Q. INDIVIDUALLY AND AS NEXT FRIEND TO MINOR C.O. Plaintiff
KENNEDY JOHNSON SCHWAB & ROBERGE LLC Attorney for the Plaintiff
KENNEDY JOHNSON SCHWAB & ROBERGE PC Attorney for the Plaintiff
META PLATFORMS INC Defendant
PHV BELL LAUREN A 8/8/23 Attorney for the Defendant
PHV BERGMANN MATTHEW P 8/8/23 Attorney for the Plaintiff
PHV LOTTES SYDNEY 9/19/23 Attorney for the Plaintiff
PHV MAJOR JOHN B 1/10/24 Attorney for the Defendant
PHV SNEED DAVID 7/20/17 Attorney for the Defendant
REGINALD SHARP Defendant
SNAPCHAT LLC Defendant
SNAP INC Defendant
V. V. INDIVIDUALLY AND AS NEXT FRIEND TO MINOR C.O. Plaintiff
WIGGIN & DANA LLP Attorney for the Defendant
Michael Kennedy Attorney
Jonathan Beamon Attorney
James O'Brien Attorney
JOHN BARTON Attorney
Jonathan Harris Attorney
John Doody Attorney

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