Motion-Secondary: Michele Barry Plaintiff vs. Dolgencorp, LLC Defendant

• 
• 
• 
• 

						
                                
Preview
                                Filing # 20048271 Electronically Filed 10/31/2014 08:44:35 AM

IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY,
FLORIDA
CASE NO: CACE-13-024231

MICHELE BARRY,

Plaintiff,
vs.

DOLGENCORP, LLC d/b/a
DOLLAR GENERAL

Defendant.
/

DEFENDANT'S MEMORANDUM OF LAW REGARDING FABRE DEFENSE

1. This matter involves an alleged slip and fall, which occurred on or about
April 27, 2013 at Defendant's store which resulted in alleged personal injuries to
Plaintiff. Video evidence shows an individual kicking a soccer ball into a shelf, knocking
over a bottle of detergent. Moments before, this individual is seen walking with his
parent/guardian. Later in the store security video, the individual is seen with his
parent/guardian again as they check out, and then leave, together. During Plaintiff's
testimony, she indicated that the soccer ball-kicking individual appeared to be in his
teens—and at least more than six (6) years old.

2. Common law raised a presumption of incapacity for minors, and that
incapacity decreases with the progress of years. Thus, the older the minor, the more
capacity for liability. Based on the Florida Supreme Court's Decision in Swindell v.
Hellkamp, minors under six (6) years of age are presumed to be incapable of
committing contributory negligence. Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970),

attached hereto as exhibit "A."

Page 1 of 6

*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/31/2014 8:44:34 AM.****3. In the case sub judice, the minor who kicked the ball is clearly over six (6)
years old. As seen in the store security video, his clothing, mannerisms, and
independence from his parent/guardian indicate someone over six (6) years old. (See
store security video, exemplar screenshots attached hereto as composite exhibit "B")
Furthermore, "in cases where jurors could reasonably disagree, the issue of ultimate
fact in a negligence case should be submitted to the jury with proper instruction.”
Swindell at 710.

4. The standard jury instruction for Negligence of a Child (401.5) states:
"Reasonable care on the part of a child is the care that a reasonably careful child of the
same age, mental capacity, intelligence, training and experience would use under like
circumstances."

5. The juvenile in the present case showed a relatively high degree of these
factors because (a) his parent/guardian left him unsupervised, indicating that she
recognized his independence and ability to keep himself safe; (b) he had already
developed the gross motor skills and fine motor skills to manipulate the soccer ball and
had sufficient training to proficiently strike the ball and muscle development to have it
knock over a 1.3 gallon jug of detergent; (c) he was cognitively advanced enough to
comprehended the cause-and-effect connection between his actions and the spilled
detergent; and (d) he appeared to know what he did was wrong, as seen by the way he
fretted and wrung his hands after knocking over the bottle, then tried to return the bottle
of detergent upright to lessen the severity of his actions, looked over his shoulder to see
if anyone caught him, and he left the scene quickly. (See store security video, exemplar

screenshots attached hereto as composite exhibit "C")

Page 2 of 66. Thus, the demonstrated mental capacity, intelligence, training, and
experience on the part of this mature child borders on that of a young adult.

7. In 1973, Florida adopted the comparative negligence standard and
rejected contributory negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).
And, the Florida legislature enacted a comparative fault statute in 1986. Fla. Stat. §
768.81. (Supp. 1986). (Fla. Stat. § 768.81 (2013) attached hereto as exhibit "D"). That
statute provided for "judgment against each party liable on the basis of such party's
percentage of fault[.]" Id.

8. In 1993, the Florida Supreme Court applied this statute to two cases:
cases: Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and Allied-Signal, Inc. v. Fox, 623
So.2d 1180 (Fla. 1993), attached hereto as exhibit "E." These cases reiterated the
Florida Supreme Court's intent from Hoffman of "apportionment of the loss among

those whose fault contributed to the occurrence." Hoffman at 436. In Fabre, the

 

Florida Supreme Court stated, "we believe that the legislature [by the enactment of
768.81] intended that damages be apportioned among all participants to the
accident{.]" Fabre at 1185. Allied-Signal clarified the Florida Supreme Court's inclusive
language and inclusive intent further:

"[O]ur comparative fault statute required consideration by the jury of

all parties' comparative fault in order to determine a specific party's
percentage of fault, regardless of the fact that one of the other

parties may be immune from liability and not joined as a party

to the action." [Emphasis added.]

Y.H. Invs. v. Godales, 690 So.2d 1273, 1277 (Fla. 1997), attached hereto as exhibit "F."

Page 3 of 6Godales goes on to summarize the decisions in Fabre and Allied-Signal as "the
legislature intended that a judgment against a particular tort-feasor be based on ‘such
party's percentage of fault' in causing the claimant's damages.

9. Clearly, both judicial and legislative intent in Florida has been in
concurrence about all parties to a lawsuit should be apportioned for only their own
percentage of fault—whether a plaintiff or defendant; joined or a non-party; and/or
regardless of immunity from liability.

10. Thus, even though a minor may be immune from liability, his/her
comparative negligence must be factored into the allocation of fault to avoid holding
another party disproportionately negligent.

11. Additionally, the plain language of Fla. Stat. § 768.81 (2013) does not limit
apportionment of by age. (See exhibit "D"). The statute simply refers to the fault of any
"nonparty." (See exhibit "D"). Florida case law refers to "all tortfeasors," "unknown
tortfeasors," "phantom drivers," and "persons alleged to be negligent." It is difficult to
imagine how an "unknown" "phantom" person could be more at fault than a known
person, simply because of age. The 4th District Court of Appeal of Florida agrees.

12. In Cody v. Kernaghan, the 4th District Court of Appeal held a minor
child 35% negligent. Cody v. Kernaghan, 682 So.2d 1147 (Fla. 4th DCA 1996),
attached hereto as exhibit "G"), The minor was injured at a birthday party on a
trampoline. The minor's parents sued the Cody's for negligence and negligent
supervision. The jury returned a verdict in which they minor was 35% negligent. On
appeal, the 4th DCA held that, not only is the jury's verdict valid, both economic and

non-economic damages should be reduced by the minor's 35% fault.

Page 4 of 613. Moreover, the parent/guardian owed a duty to the patrons and employees
of Dollar General to control the minor, of whom she was in charge. As seen in the store
security video, the minor was well-behaved while the parent/guardian was regulating his
activity. (See store security video, exemplar screenshots attached hereto as composite
exhibit "H"). On the single occasion when the parent/guardian breached her duty by
releasing her governance of the minor, he kicked the ball and knocked over the
detergent. That breach of her duty is what caused the creation of the dangerous
condition which resulted in Plaintiff's injuries.

WHEREFORE, Defendant, DOLGENCORP, LLC d/b/a DOLLAR GENERAL,
based on Florida Statutes, case law, and the facts of this case is entitled to maintain its

Fabre defense as pertains to the minor who kicked the ball and his parent/guardian.

Page 5 of 6CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
4G
to all counsel listed below in the manner indicated, on this 30 day of October, 2014.

Raymond R. Dieppa, Esq.

Christopher Wadsworth, Esq
Wadsworth Huott, LLP

One Flagler Building

14N.E. 1° Avenue, 10" Floor

Miami, FL 33132

Primary email: rrd@wadsworth-law.com
Secondary: joand@wadsworth-law.com

Counsel for Plaintiff
Sent Via Florida Courts E-Filing Portal

HIGHTOWER, STRATTON, WILHELM
330 Clematis Street, Suite 201

West Palm Beach, Florida 33401
Telephone: (561) 833-2022

Facsimile:, (661) 833-2140

 

Primary email: wobservice@hightowerlaw.net
Secondary: tcharles@hightowerlaw.net

Page 6 of 6gndell y. Heiliamp

Supreme Court of Florida

November 25, 1970

No. 39609

Reporter
242 So. 2d 708; 1970 Fla. LEXIS 2287

Linda Sue SWINDELL, a minor, by and through her
mother and next friend, Nadine Swindell, and Nadine
Swindell, individually, Petitioners, y. Donald G.
HELLKAMP and Jesse Ramirez, a minor, Respondents

  

Counsel: {**1] John T. Carlon, Jr, of Coker &
Carlon, Fort Lauderdale, for Petitioners.

Dieter K. Gunther, of Carey, Dwyer, Austin, Cole &
Selwood, Fort Lauderdale, for Respondents.

Judges: Roberts, Justice. Ervin, C.J., and Drew, Carlton
and Boyd, JJ., concur.

Opinion by: ROBERTS
Opinion

[*708] This cause is before the court on writ of
certiorari following certification under {*709| Florida
Appellate Rule 4.5, subd. c(6), 32 FS.A. by the
District Court of Appeal for the Fourth District as
presenting a question of great public interest.

The minor plaintiff, Linda Sue Swindell, was struck
and injured on September 30, 1966 by an automobile
that was driven by the seventeen year old defendant,
Jesse Colberto Ramirez. The evidence indicated that
Linda ran across the street after having emerged from
behind a row of shrubs and was struck by the front of
the automobile. The case was tried before a jury on the
issue of liability only and the jury returned a verdict in
favor of the defendants.

From the decision of the District Court reported as,
Ly. Hellkamp. Fhuanp.. 232. S¢ 6

     

’The points presented by the appellants are, as
stated in their brief:

“Point 1. Whether [**2] a minor child 4 years,
7 months old can be guilty of contributory
negligence as a matter of law.

“Point 11. Whether the court erred in failing to
instruct the jury that a minor operating a motor
vehicle is held to adult standards in such
operation.

“Under Point 1 the appellants argue without
reference to any of the facts surrounding the
minor plaintiff and her accident that she is not
chargeable with contributory negligence
because as a matter of law a child four years
seven months of age cannot be guilty of
contributory negligence, With this as a premise,
the appellants assert that the trial judge
committed reversible error in not granting
their motion for a directed verdict as to the
issue of the child’s contributory negligence
which was pled as an affirmative defense.
Basically what the plaintiffs are asking this
court to do is to lay down arule as a matier of
policy which would have the effect of
exempting from contributory negligence all
children four years seven months of age.

“Plaintiffs’ approach has been rejected in
Turner.y. Seegar. 1942, 151 Fla. 643. 10. So.2d
. In that case the Florida Supreme Court
held that it was proper for the trial court to
have {**3} allowed the jury to determine
whether or not a child ’nearing six years’ was
contributorily negligent. The court there said,
quoting the earlier case of Dup Heider.

1934 679152 So, 65¢

  

 
   
 

 

“Age is not the determining factor
always on the question of the
capability of exercising care. If a
person is capable, by reason of
mentality, intelligence, experience,
training, discretion, alertness, of
exercising care in a given situation, he
is amenable to the consequences of
his contributory negligence in a
transaction resulting in his injury.”

oy

AY“Under this rule the duty of the trial court in
dealing with the issue of a child’s contributory
negligence is to determine by reference to the
criteria mentioned above whether or not a jury
of reasonable men could reasonably differ on
the question of the child’s capacity for
exercising any self-protective care with respect
to the particular circumstances before the
court. If it appears that the child
unquestionably had no capacity for exercising
such care in the circumstances, then of course
the trial judge may take the issue from the jury
and decide it as a matter of law; however,
where jurymen could |**} reasonably disagree
on the point, the issue, like any other issue of
ultimate fact in a negligence case, should be
submitted to the jury with proper instructions.
Of necessity, the trial court’s handling of this
issue cannot be reversed by an appellate court
unless error is clearly shown. Such is not the
case here. The present record indicates that the
minor plaintiff had received instructions from
her mother regarding the hazards of traffic;
therefore, a jury could reasonably have
concluded that she had some capacity for
exercising care. The question as to whether or
not she exercised {710} that degree of care
which the law requires of a child was properly
for the jury.

kae

“Likewise we see no merit in the second point
which the appellants raise. The trial court
instructed the jury properly on the standard of
adult care which was applicable to the
defendant Ramirez in the operation of the
automobile. Had the trial judge charged the
jury that a minor is held to an adult standard in
operating an automobile this would have been
nothing but surplusage even though the
underlying proposition of law is correct as an
abstract principle.

’The judgment appealed from is affirmed.”

st
And from the dissenting opinion, inter alia:

“Since the application of the doctrine of
contributory negligence is the result of public

 

policy in order that all individuals may
remember their own situations and be
responsible for their own acts, the doctrine
should have no application to a child of tender
years under the age of seven, since it is not
compelled by public policy prior to this time
to become an active, discerning and intelligent
member of our society through the learning
process.

“I would reverse the judgment of the lower
court and hold that as a matter of law a child
under seven years of age is incapable of
contributory negligence.”

We have been asked to clarify this area of law which
has been in this and other jurisdictions one of difficulty
and confusion. On one hand we are asked to follow the
common law in criminal cases, i.e., a child under the
age of seven is conclusively presumed to be incapable
of committing a crime. The common law rule raises a
presumption of incapacity of an infant between the
ages of seven and fourteen, and the presumption is that
the incapacity after seven years of age decreases with
the progress of his years. Cf. [**6] © Lute.
Fla. 204, 196 So. 462 (1940). On the other hand, we
are cited to the proposition that in cases where jurors
could reasonably disagree, the issue of ultimate fact in
a negligence case should be submitted to the jury with
Proper instruction. Here there is no complaint against
the instruction given, which is taken from “Standard
Jury Instruction 4.4, Negligence of a Child:”

  

EB

 

 

“Reasonable care on the part of a child is that
degree of care which a reasonably careful
child of the same age, mental capacity,
intelligence, training and experience would
use under like circumstances.”

In Florida, we have held, “A three year old child is
incapable of committing contributory negligence.”
‘i Ou 634 (1949), But in
1 Pha 6
this court held that it was re the jury to determine
whether a child within nineteen days of six years was
guilty of contributory negligence but that decision was
based on the reasoning, quoted in Dupuiy deider.
113. Pla. 679. (82 So. 659 (1944) which involved the
alleged contributory negligence of a thirteen year old
boy.

  

2d 320,
232!In the absence of a legislative declaration, it {**7| is
our opinion and we so hold, that the child herein
involved and any other child under six years of age is
conclusively presumed to be incapable of committing
contributory negligence. This holding is compatible
with the common law tule that a child under seven is
conclusively presumed to be incapable of committing
a crime inasmuch as a child must lear individual
safety at an early age but social consciousness comes
at a somewhat later age. Compare the following cases
in which the conclusive presumption of incapacity has
been recognized: Beliak v. Plants, 84 Ariz. 211, 326
P.2d 36 (1958) (5 1/2 year old boy - struck by
automobile while backing from driveway); Duffy v.
Cortesi, 2 Tll.2d 511, 119 N.E.2d 241 (1954) (5 year
old girl - struck by car while crossing street); Lever
Brothers Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d
1002 (1950) (6 {*71!] year old boy - struck while
running across street); Nagy v. Balogh, 337 Mich. 691,
61 N.W.2d 47 (1953) (4 years and 10 months - struck
by car while in street); Cox v. Hugo, 52 Wash.2d 815,
329 P.2d 467 (1958) (under six years of age); Shaske
v. Hron, 266 Wis. 384, 63 N.W.2d 706 (1954) (five and
a half years old); Romine v. City of Watseka, |*°8}

341 Tll.App. 370, 91 N.E.2d 76 (1950) (five and a half
year old boy); Gilligan v. City of Butte, 118 Mont.
350, 166 P.2d 797 (1946) (five years and 9 months).

In view of the foregoing the case sub judice must be
considered on the negligence vel non of the defendant
and finding none that would support a verdict against
him, the trial court was correct in entering judgment
for the defendant. In this posture the trial court’s
giving the instruction it did as to contributory
negligence was harmless error.

The second question was properly answered in the
decision under review.

No reversible error appearing, the decision is revised
to conform to the views hereinabove expressed, and
the

Writ of certiorari heretofore issued is discharged.
It is so ordered.

ERVIN, C.J., and DREW, CARLTON and BOYD, JJ.,
concur,352x240"

a
—

4/27/2013
ae EL

SEVP OLA)

4/27/2013
yd352x240

4/27/2013
(SS Sad4/29/2013
Lea)4/29/2013
6:45:20 PM§ 768.81. Comparative fault.

(1) Definitions. — As used in this section, the term:

(a) “Accident” means the events and actions that relate to the incident as well as those events and
actions that relate to the alleged defect or injuries, including enhanced injuries.

(b) “Economic damages” means past lost income and future lost income reduced to present value;
medical and funeral expenses; lost support and services; replacement value of lost personal
property; loss of appraised fair market value of real property; costs of construction repairs,
including labor, overhead, and profit; and any other economic loss that would not have occurred
but for the injury giving rise to the cause of action.

(©) “Negligence action” means, without limitation, a civil action for damages based upon a theory
of negligence, strict liability, products liability, professional malpractice whether couched in
terms of contract or tort, or breach of warranty and like theories. The substance of an action, not
conclusory terms used by a party, determines whether an action is a negligence action.

(d) “Products liability action” means a civil action based upon a theory of strict liability,
negligence, breach of warranty, nuisance, or similar theories for damages caused by the
manufacture, construction, design, formulation, installation, Preparation, or assembly of a
product. The term includes an action alleging that injuries received by a claimant in an accident
were greater than the injuries the claimant would have received but for a defective product, The
substance of an action, not the conclusory terms used by a Party, determines whether an action is
a products liability action.

(2) Effect of contributory fault. — In a negligence action, contributory fault chargeable to the claimant
diminishes proportionately the amount awarded as economic and noneconomic damages for an injury
attributable to the claimant’s contributory fault, but does not bar recovery.

(3) Apportionment of damages. — Ina negligence action, the court shall enter judgment against each
party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of

joint and several liability.

(a)

1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the
fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or
describe the nonparty as specifically as practicable, either by motion or in the initial
responsive pleading when defenses are first presented, subject to amendment any time
before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed
nonparty on the verdict form for purposes of apportioning damages, a defendant must Prove
at trial, by a preponderance of the evidence, the fault of the nonparty in causing the
plaintiff's injuries.

(b) In a products liability action alleging that injuries received by a claimant in an accident were
enhanced by a defective product, the trier of fact shall consider the fault of all persons who

vFila. Stat. § 768.81

contributed to the accident when apportioning fault between or among them. The jury shall be
appropriately instructed by the trial judge on the apportionment of fault in products liability
actions where there are allegations that the injuries received by the claimant in an accident were
enhanced by a defective product. The rules of evidence apply to these actions.

(4) Applicability, — This section does not apply to any action brought by any person to recover actual
economic damages resulting from pollution, to any action based upon an intentional tort, or to any
cause of action as to which application of the doctrine of joint and several liability is specifically
provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895.

(5) Medical malpractice. — Notwithstanding anything in law to the contrary, in an action for damages
for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort,
if an apportionment of damages pursuant to this section is attributed to a teaching hospital as defined
in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party’s
percentage of fault and not on the basis of the doctrine of joint and several liability,Supreme Court of Florida

Augusi 26, 1993, Decided

No, 80.181

Reporter

623 So. 2d 1180; 1993 Fla. LEXIS 1342; 18 Fla. L, Weekly S 455
ALLIED-SIGNAL, INC., etc., Appellant, v. KEVIN The federal appeals court outlined the circumstances

FOX, Appellee.

Prior History: {**1] Certified Question of Law from
the United States Court of Appeals for the Eleventh
Circuit - Case No. 91-5587.

Counsel: Kathleen M. O’Connor of Thornton, David,
Murray, Richard & Davis, P.A., Miami, Florida, for
Appellant.

G. William Bissett of Hardy & Bissett, PA., Miami,
Florida, for Appellee.

Marguerite H. Davis of Katz, Kutter, Haigler,
Alderman, Davis & Marks, P.A., Tallahassee, Florida,
Amicus Curiae for American Insurance Association.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton,
Meadow, Olin & Perwin, P.A., Miami, Florida, Amicus
Curiae for the Academy of Florida Trial Lawyers.

Sharon Lee Stedman of De Ciccio & Associates, P.A.,
Orlando, Florida, Amicus Curiae for the Florida
Defense Lawyers Association

Judges: GRIMES, OVERTON, McDONALD, SHAW,
HARDING, BARKETT, KOGAN

Opinion by: GRIMES
Opinion

[*118t| GRIMES, J.

Pursuant to section 25.31, Florida Statutes (1987), and
Florida Rule of Appellate Pe Jury:_9.150, the United
States Court of Appeals for the Eleventh Circuit has
certified to this Court a question concerning the
interpretation of s 768.813), Corida Statutes
(1989). Fox ». Aflied-Signal, Inc. 966 F.2d 626 Ith
1992), [*#2] We have jurisdiction under

section 3(b)(6) of the Florida Constitution,

   

  
   

 

  

 

  

  

giving rise to certification as follows:

On March 9th, 1990, plaintiffappellee Kevin
Fox was working for Eastern Airlines as a
technician performing maintenance and
overhaul on the electrical systems of airplanes.
Fox was servicing an aircraft fan, Allied fan
model 73 FA18, when his fingers were caught
in the rotating blades of the fan. The fan did
not have a safety screen at that particular
moment. Allied’s maintenance and service
manual did not indicate that a safety screen or
guard needed to be used over the fan while it
was being serviced. Moreover, Eastern Airlines
and its employee, Kevin Fox, failed to place a
guard or screen over the fan. Eastern Airlines
was nonetheless aware of the OSHA
requirement that guarding be placed over
rotating machines to protect operators from
hazards, 29 C.E.R. § [910.212 (199i). Further,
Eastern had established a system for using
safety screens, it had instructed its employees
on the use of such screens, and it had regularly
scheduled maintenance programs to educate
its employees on these procedures. Apparently,
{**3] this accident occurred during a strike
against Eastern, and Mr. Fox, as well as other
employees, had only been engaged in this type
of work for a short period of time. As “new
hires,” these individuals were given some
training, but there is a serious question about
its adequacy and what was in fact covered.
Eastern Airlines was immune from suit
pursuant to the Workers’ Compensation Act,
As a result of the accident, Mr. Fox received
permanent physical injuries: four fingers of
his left hand were injured, two of which were
amputated. He was able to return to work four

wmonths after the accident. Mr. Fox alleged that
Allied was negligent in failing to instruct that
the fan should be serviced with a safety
screen, and in failing to warn of the fan’s
suction. The trial court denied Allied’s request
to allow the jury to consider and assess
nonparty Eastern’s percentage of fault, if any,
under Florida’s Tort Reform Act, Ela. Sta’, §
768.81 (1989). The court interpreted the statute
to allow apportionment of fault only among
the parties to the suit.

The jury found Allied to be seventy percent
(70%) negligent and Mr. Fox thirty percent
(30%) comparatively negligent. Mr. [**4]

Fox was awarded a total amount of $
350,000.00 in damages. Thus, the amended
final judgment was $ 245,000.00. The [*i182]
district court denied Allied’s motion for a new
trial.

£ox..906 F.2d at 626-27.

The court phrased the question for certification as
follows:

WHETHER THE INTERPRETATION OF
FIA. STAT § 708.8167) (1989) REQUIRES
CONSIDERATION BY THE JURY OF A
NONPARTY’S COMPARATIVE FAULT IN
ORDER TO DETERMINE A PARTY’S
LIABILITY?

(d_a\_62"8. As a reason for the certification, the court
noted the conflicting opinions on the subject in
Mewsene.

(Fla. 220 vO. ed (7
(Fla. 1992), and Fabre v. Marin, 597 So. 2d 883 (Fla.
3d DCA 1992).

On the authority of our decision in Hh. Marin
1993 bia DLP AIS |. 453, Nos.

 

 

79,869 and 79,870 (Fla. Aug. 26, 1993), we answer the
certified question in the affirmative. In Fabre we
adopted the rationale of Messmer, holding that
768.31(3), Florida St-tutes (1989), requires that liability
be apportioned to all participants in an [**5} accident
in order to determine a defendant’s percentage of fault.
In support of our decision we cited several cases with
facts similar to those in the instant case in which it was
necessary to consider the percentage of fault of the
plaintiff's employer even though the employer was

cUON

 

 

  

 

immune from tort liability under workers’
compensation laws. ! Cory, 817 F.2d
L176, (Sth Cig fn, &
i ks, G66 F.2d 1223 (8th Cir. 1981); DaFonte v.

   

UpRight, Inc., 2 Cal, 4th 593, 7 Cal. Rptr, 2d 238, 828
P.2d 140 (Cal. 1992); Connar v. West Shore Equip., 68
Wis. 2d 42, 227 N.W.2d 660 (Wis. 1975).

Having answered the certified question, we return the
record to the United States Court of Appeals for the
Eleventh Circuit.

It is so ordered.

OVERTON, McDONALD, SHAW and HARDING,
JJ., concur.

BARKETT, C.J., dissents with an opinion, in which
KOGAN, J., concurs.

Dissent by: BARKETT
Dissent

BARKETT, C.J., dissenting.

I dissent for the reasons I stated in Kujo s. Mourin.
1903 Va | PXES_ 1343.18 01

 

79,869 & 79,870 (Fla. Aug. 26, 1993) (Barkett, C.I.,
dissenting).

 

{**6] KOGAN, J., concurs.Supreme Court of Florida

March 27, 1997, Decided
No. 87.504

Reporter

690 So. 2d 1273; 1997 Fla. LEXIS 324; 22 Fla. L. Weekly $ 153

Y.H. INVESTMENTS, INC., Petitioner, v. RAQUEL
GODALES, individually, and as guardian of
ARMANDO RODRIGUEZ, a minor, Respondent.

Prior History: |**1} Application for Review of the
Decision of the District Court of Appeal - Certified
Great Public Importance Third District - Case No.
95-1178 (Dade County).

Disposition: Certified question answered in the
affirmative. Decision under review quashed, remanded.

Counsel: G. Bart Billbrough and Geoffrey B. Marks
of Walton, Lantaff, Schroeder & Carson, Miami,
Florida, for Petitioner.

John M. Cooney and Robert L. Parks of Haggard,
Parks & Stone, P.A., Coral Gables, Florida, for
Respondent.

Tracy Raffles Gunn of Fowler, White, Gillen, Boggs,
Villareal & Banker, P.A., Tampa, Florida, for
Nationwide Mutual Fire Insurance Company and
Florida Defense Lawyers’ Association, Amicus Curiae.

Betsy E. Gallagher of Gallagher & Howard, Tampa,
Florida, for United Services Automobile Association
and USAA Casualty Insurance Company, Amicus
Curiae.

James K. Clark of James K. Clark & Associates,
Miami, Florida, for State Farm Mutual Automobile
Insurance Company, Amicus Curiae.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton,
Meadow, Olin & Perwin, P.A., Miami, Florida, for The
Academy of Florida Trial Lawyers, [**2] Amicus
Curiae.

Judges: OVERTON, GRIMES, HARDING and
ANSTEAD, JJ., concur. WELLS, J., dissents with an
opinion, in which KOGAN, C.J., concurs. SHAW, J.,
dissents.

Opinion

 

i] PER CURIAM.

  

We have for review Code!es vy. Yl investments, lac.
€o7 So. 2d 871 la. 34 DCA 1996). We accepted
jurisdiction to answer the following question which
was certified to be of great public importance:

   

CT 708.81. EF ORIDA
(1993), REQUIRE THAT A
MINOR CHILD PLAINTIFF’S AWARD BE
REDUCED BY THE NEGLIGENCE OF A
NONPARTY PARENT OR GUARDIAN,
AND TO THE BENEFIT OF THE
DEFENDANT TORTFEASOR?

 

667 S 3. We have jurisdiction pursuant to

by) of th a Cons, 1,

   

 

For the reasons expressed below, we rephrase the
question and, as rephrased, answer the question in the
affirmative and quash the decision under review. We
rephrase the question as follows:

 

LON O88. FLORIDA
(1993), PERMIT THE
CONSIDERATION OF THE NEGLIGENCE
OF A  NON-PARTY PARENT OR
GUARDIAN IN DETERMINING THE
CAUSE OF A MINOR’S INJURY IN A
NEGLIGENCE ACTION AGAINST A
THIRD PARTY TORTFEASOR?

 

MATERIAL FACTS

Two-year old Armando Rodriguez (Armando) [**3]
and his mother, petitioner Raquel Godales (Godales),
were sitting on the stairs connecting the first and
second floors of their apartment building, owned and
managed by respondent Y.H. Investments, Inc. (Y.H.).

“Ee' While trying to put his shoe on, Armando fell
backwards beneath the lower guardrail of the open
staircase and hit the ground five feet below, fracturing
his skull. Godales brought a negligence action against
Y.H. on her son’s behalf and on her own derivative
claim, alleging negligent maintenance of the premises
by reason of the guardrail. Y.H. asserted in defense
that Godales was also at fault in the accident by reason
of her negligent supervision of her child, and that Y.H.
should only be held liable for the percentage of
damages it actually caused.

On the day of trial, Godales withdrew her derivative
claim. During the trial, it was established that the
opening between the tread of the steps and the lower
guardrail [**4] was in violation of the six-inch
maximum width mandated by the South Florida
Building Code. The court instructed the jury that Y.H.
was negligent as a matter of law, leaving only the
issues of whether and the extent to which Y.H.’s
negligence was a legal cause of Armando’s injury. The
court also instructed the jury to determine whether
Godales was negligent for failing to provide adequate
supervision of the child, and whether such negligence
was a legal cause of Armando’s injury. The verdict
form listed both Y.H. and Godales, with interrogatories
to determine the percentage of any negligence
attributable to them. The jury returned a verdict
finding Y.H. and Godales each to be fifty percent
negligent in causing the accident and awarding
Armando $ 42,500 in damages for pain and suffering.
Accordingly, pursuant to the provisions of s¢
TABS. wida Stu:utes (1993), the trial court entered
a final judgment against Y.H. for the percentage of
damages attributable to its negligence, i.e., fifty percent
of the total damages, or $ 21,250.

 

 

on

  

‘The facts are largely taken from the district court’s opinion. (67 So. 2d

On appeal, the Third District reversed and remanded
for a new trial. The district court held that the trial
court erred in allowing the jury to consider |**5] the
negligence of Armando’s mother and in directing that
Armando recover only fifty percent of the jury’s
assessed damages from Y.H. Gud«! p67 S
1°1275|_873. * The district court also certified the
question referred to above.

  

LAW AND ANALYSIS

This case presents us with a straightforward issue
concerning the application of the comparative fault
statute, section 768.81(3), Florida Statutes (1993). >
However, before addressing the statute’s application
here, we will briefly review the case law on
comparative negligence.

‘| In the landmark decision in //offir. Jones,
280 So, 2d 431 (Fla. 1979), we abolished the harsh and
judicially created doctrine of contributory negligence,
which completely barred recovery by a claimant
whose own negligence may have contributed only
slightly to an accident. * Under that doctrine a claimant
found to be only five percent at fault was barred from
recovering any part of her damages from a tort-feasor
that may have been ninety-five percent at fault in
causing those damages. In abolishing the doctrine, we
reasoned that “today it is almost universally regarded
as unjust and inequitable to vest an entire accidental
loss on one of the parties whose negligent conduct
combined with the negligence of the other party to
produce the loss.” 280 S In place of such
a harsh doctrine we adopted the doctrine of comparative
negligence and its premise that fault was the basis of
liability. We found that “apportionment of the loss

 

    

 

 

2 ‘The Third District also held that a new trial was warranted because the jury's award of zero damages for medical expenses was
inconsistent with its finding of $ 42,500 for past pain and suffering. Id.

3 We have revisited the statute several times since 1")
1996, See Nuvh VW. ls Lerge Finer Service s dnt. O78 So,

 

 

Savin, 73 S0. 714
461 164 Ob

Ehi_1993), was decided, most recently in
J9¢9) (holding “that in order to include a nonparty

 

 

 

on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and
specifically identify the nonparty”). We note that Nash had not yet been decided when the case before us was litigated. Furthermore,

Godales has not argued that a Nash issue exists wherein specific pleading, notice, and proof requirements are predicates to a jury
126-

instruction on apportionment of fault which includes non-litigants to the action. 673 So. 2d

before us and will not be considered in this opinion.

a

   

Voie otic UY

 

See, e.g., Lnivilio & Nashyille RRs

Therefore, that issue is not

 

70/_(1°*6), Legal historians trace the rule that contributory negligence

was an absolute bar to recovery to the English case of Butterfield v. Forrester, 11 Bast 60, 103 Eng. Rep. 926 (K.B. 1809).among those whose fault contributed to the occurrence
is more consistent” with that underlying policy. Jd.

[**7] Shortly thereafter we extended fault
apportionment to joint tort-feasors, allowing
contribution among them for the first time in
Lincenherg v. bssen, 318. pla. 1975). In

 

So. 2d 386 (FI
receding from another judicially created doctrine, *
found “no equitable justification for recognizing the
right of the plaintiff to seek recovery on the basis of
apportionment of fault while denying the right of fault
allocation as between negligent defendants.” /d._ it
391. However, recognizing that the legislature had
recently passed sec FOR.31. Florida Stxtues (1975),
the Uniform Contribution Among Joint Tortfeasors
Act, we declined consideration of the abrogation of
joint and several liability in deference to legislative
attention to these issues, © 2d at 393.94,

        

318 So.

 

[**8] In 1987, in a case involving a 1971 accident, 7
we again deferred to the legislature and declined to
abrogate the doctrine of joint and several Hability i in its
entirety. Walt Disney Worll Co. So. 2d
198 (la. 1987). Despite the jury’s verdict that
defendant Disney was only one percent at fault, while
the plaintiff and her fiance were fourteen percent and
eighty-five percent negligent, [*1276{ respectively,
we affirmed a judgment against Disney for eighty-six
percent of the damages, based upon the existing
doctrine of joint and several liability. Ad 2t 199.
Disney contended that it was patently unfair for a party
only one percent at fault to have to pay eighty-six
percent of the damages. While conceding the logic of

     

Disney’s argument that “a defendant should only be
held responsible to the extent of his fault in the same
way as a plaintiff under comparative negligence,” we
determined that the public policy issues involved
should be resolved in the legislature rather than by
judicial action. fat 200, 202. Indeed, following the
district court decision in Welt Disney World Co.
Woud, 489 So. 2d 61 (Fla, 4th DCA 1986), approved,
SIS So. 2d 198 (Fla. 1987), [9] the Florida legislature
did enact a comparative fault statute, seciinn 768.81.
Eh statutes (Supp. 1986), that squarely directed
that any judgment against a defendant be based on the
defendant’s percentage of fault in causing any damage
and not on joint and several liability. § Scetior
768.8113) provides:

 

 

 

 

 

 

 

In cases to which this section applies, the
court shall enter judgment against each party
liable i0| on the basis of such party’s
percentage of fault and not on the basis of the
doctrine of joint and several liability; provided
that with respect to any party whose percentage
of fault equals or exceeds that of a particular
claimant, the court shall enter judgment with
respect to economic damages against that
party on the basis of the doctrine of joint and
several liability.

 

(Emphasis added.) Hence, the legislature, in essence,
acted to do what we declined to do in Walt Disney
World Co, v. Wood. ° |**11, Under section 768.81
defendants like Walt Disney would no longer have to
pay damages in excess of the amount their conduct

5 The principle of denying contribution among joint tort-feasors originated in another English case, Merryweather v. Nixan, 8

Term. Rep. 186, 101 Eng. Rep. 1337 (K.B. 1799). This Court adopted the principle in / 7:

© This Court adopted the principle of joint and several liability in # yuisv il

9th

7 The accident in Wic-t i

 

Wid Disney

 

 

 

  

2G 2 Ls SON 189).

337.

   
   

rile Ruilro:

 

 

Ath DCs 181), took place on November 27, 1971.

The lengthy course of litigation included an initial trial, an appeal to the Fourth District which reversed and remanded the case, a

retrial, another appeal, and finally, review by this Court.

® ‘The Fourth District’s decision in Disney was rendered on April 9, 1986.
on or after July 1, 1986, and does not apply to any cause of action arising before that date.”

1986).

ection Zo8.81 only applies to “causes of action arising
Seeti 2), Fla, Seu, (Supp.

  

  

° While not directly evaluating the statute, we did acknowledge its passage in our Disney decision by noting that:

In 1986 the legislature substantially modified the doctrine of joint and several liability as part of its comprehensive tort

  

reform law.

 

tat, (Supp. 1986). The fact that the new statute did not entirely abolish the doctrine but

provided for apportionment of fault only under certain circumstances further indicates the complexity of the problemactually caused. In subsection (3), clause one, the
legislature totally abolished joint and several liability
for noneconomic damages, i.e., pain and suffering,
while retaining such liability in clause two for
economic damages !° for “any party whose percentage
of fault equals or exceeds that of a particular claimant,”
albeit with several other enumerated exceptions. See §
768.81(4)(b), (5), Fla. Stat. (1993).

In August of 1993, we applied section 768.81
cases: Marin, 023

   
 

 

Fabre v,

   

1993). Echoing ‘the original po policy concerns expressed
in Hoffman about “apportionment of the loss among
those whose fault contributed to the occurrence”, 280
So. 2d at 436, we held that the major thrust of the
statute was to apportion a tort-feasor’s liability for a
claimant’s damages on the basis of the particular
tort-feasor’s “percentage of fault” in causing the
damages,

In Fabre, Mrs. Marin was injured when the car her
husband was driving swerved into a guardrail after
allegedly being cut off by a car driven by Mrs. Fabre.
623 So. 2d at 1183. At the jury charge conference, the
court denied the Fabres’ request that the verdict form
allow the jury to apportion fault between the two
drivers, Mrs. Fabre and Mr. Marin, a non-litigant. ''
623 So. 2d st 1183. However, to forestall a possible
retrial on the issue, Mrs. Marin, the plaintiff, agreed to
have the issue of Mr. Marin’s [**12] negligence
submitted to the jury subject to the court’s post-trial
determination of whether any affirmative |*1277}

finding would reduce Mrs. Marin’s recovery. Although
the jury returned a verdict finding Mrs. Fabre and Mr.
Marin each fifty percent at fault, the court entered
judgment against Mrs. Fabre for the entire $ 350,000
award of noneconomic damages. Jd. On appeal, the
Third District upheld the judgment.

 

 

 

We quashed the Third District’s decision, stating that
“we believe that the legislature [by the enactment of
768.81] intended that damages be apportioned among
all participants to the accident” 673 So. 2d «1185, and
that “liability is to be determined on the basis of the
percentage of fault of each participant to the accident
and not on the basis of solvency or amenability to suit
of other potential |**13] defendants.” fd _s1_ L186.
Accordingly, we remanded the case with directions
that the judgment against Fabre be entered on the basis
of Mrs. Fabre’s fifty percent of fault as determined by
the jury. /el._at 1187.

 

In the companion case of Allied-Signal, we employed
the same reasoning where one of the joint tort-feasors
enjoyed employer immunity under the workers’
compensation law. In answering a certified question
from the Eleventh Circuit, we held that our comparative
fault statute required consideration by the jury of all
parties’ comparative fault in order to determine a
specific party’s percentage of fault, regardless of the
fact that one of the other parties may be immune from
liability and not joined as a party to the action,
Miied-Signal, 673 So. 2d 2" LI8?. The gist of the
decisions in Fabre and Allied-Signal was our holding
that the legislature intended that a judgment against a
particular tort-feasor be based on “such party’s
percentage of fault” in causing the claimant’s damages.

   

Hence, under section 768.81, a tort-feasor who is
determined to have been only ten percent at fault in
causing an injury will only be liable for ten percent of
the damages, {**1+] That is a simple and rather
straightforward proposition and represents a legislative
policy choice to apportion liability for damages based
upon a party’s fault in causing the damage. '? It
appears to be based upon the same considerations of
fairness that were responsible for our decision in
Hoffman that claimants have their damages reduced
only by their percentage of fault.

and suggests there may be no one resolution of the issue which will satisfy the competing interests involved.

10 E.g., lost income, medical expenses, etc.

"1 At the time of the accident, Mrs. Marin could not sue her husband because of the doctrine of interspousal immunity,

 

Subsequently, we abolished that doctrine in {ici

‘? The parties acknowledge that this issue has been repeatedly debated in the legislature in recent years, but the legislature has

taken no action to amend s.sion 268.81.THIS CASE
As noted previously, this case presents a
straightforward application of section 768.81(3), much
like our application of the statute in Fabre and
Allied-Signal. We hold here, just as we did in Fabre
and Allied-Signal, that the fact that Godales enjoyed
immunity from liability was no bar to the jury’s
consideration of her fault in causing the accident. For
example, our Fabre opinion expressly anticipated
participants such as Godales [**i5] when we reasoned
that “the only means of determining a party’s
percentage of fault is to compare that party’s percentage
to all of the other entities who contributed to the
accident, regardless of whether they have been or
could have been joined as defendants.” 623 _S». at
1185 (emphasis added). Indeed, had Armando been in
the care of a hired baby-sitter or an unrelated adult, it
is apparent that the fault of the baby-sitter or adult
could be properly considered in determining the cause
of the accident and the percentage of fault of the
responsible parties. Similarly, had Godales, like Mr.
Marin, been found to be fifty percent at fault in
causing an automobile accident in which Armando
was injured, it is apparent that her percentage of fault
could be properly considered as Mr. Marin’s fault was
considered in Fabre.
Godales falls into that category of participants to an
accident who is immune from suit from either her
child, Ard 1.414 So. 2d 1066, 1067 (Fla. 1982)
(holding that “if the parent is without liability insurance
. then parental immunity is not waived and the child
cannot sue the parent”), or the co-tort-feasor due to her
lack of liability coverage. [**16| Ju: west Ald
So. 24 1063, 1064 5 (Ea. 2) (disallowing
contribution against co-tort-feasor parent if parent
lacks liability insurance), However, including Godales’
name on the verdict form is consistent with Fabre and
Allied-Signalwherein we approved similar inclusions
for jury consideration despite interspousal and
employer/employee |*!278] immunity, respectively.
Our decision today simply applies section _768.81 in
the parent/child context just like it was applied in the
husband/wife context in Fabre.
Godales’ negligence is not “imputed” to her child any
more than Mr. Marin’s negligence was “imputed” to

 

 

 

 
 

 

    

 

 

his wife. Rather, section 768.81 provides that Y.H. will
be held liable only for its own fault, and not have to
pay for the fault of Godales too. Further, and contrary
to the inference from the phrasing of the certified
question, in no way does this fault apportionment
reduce or preclude the child’s recovery of damages;
rather, the child is entitled to a judgment for damages
against the non-parent tort-feasor “on the basis of such
party’s percentage of fault”, as expressly provided in
section 768.81. Since there is no dispute about the
jury’s determination that [**17] Y.H. was only fifty
percent at fault in causing Armando’s injuries, any
judgment against Y.H. must be entered, under section
768.81, for fifty percent of Armando’s damages.

 

 

In summary, we answer the certified question in the
affirmative and hold that the name of the parent of a
minor child plaintiff alleged to be at fault may be
included on the jury verdict form in a personal injury
case, provided that there is sufficient evidence of fault,
and irrespective of whether the parent is immune from
suit by the child, the cotort-feasor, or both. Thus, we
quash the decision under review and remand for
further proceedings consistent with this opinion. '*
Further, as it was not a subject of our review, we do not
disturb that part of the Third District’s holding that
remanded for a new trial based on its treatment of the
issue of the jury’s failure to award damages for
Armando Rodriguez’s medical expenses.

1**18] It is so ordered.

OVERTON, GRIMES, HARDING and ANSTEAD,
JJ., concur.

WELLS, J., dissents with an opinion, in which
KOGAN, C.J., concurs.

SHAW, J., dissents.

Dissent by: WELLS

Dissent

WELLS, J., dissenting.

The majority’s reversal of the district court’s decision
writes into Florida law an unforeseen consequence of

‘3 We decline to address Godales’ argument that Y.H. was strictly liable for its violation of the building code ordinance. The Third

District did not address the issue in its opinion.Suu (1995), which is
brought about by this Court’s construction of that
statute in Fabie s. Aierin, 623. No, 2d 1187 (la, 1993),
A confluence of this Court’s decisions now effectively
leaves an unemancipated minor to suffer the total
consequences of a tort with no effective means to
recover full damages for the child’s injuries.

  

 

The opinions coming together to bring about this result
are: Fabre, which effectively allows a child’s intangible
damages to be reduced by the percentage of fault
attributable to the child’s parent(s); /
G lovee: ace Con. So. 2d
1020 (Fla. 1991), which upholds family exclusions in
liability and uninsured motorist insurance policies; and
Ard v. Ard, 414 So. 2d 1066 U-la, 1982), which allows
a child to sue a parent to recover damages for torts but
only to the extent [**19] of available liability insurance;
and if the parent is without liability insurance or if a
policy contains an exclusion clause for household or
family members, then parental immunity is not waived
and a child cannot sue a parent. The reality is that
virtually every liabilit