Preview
Filing# 137769515 E-Filed 11/02/2021 05:14:23 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-013907
MARK CATES,
Plaintiff,
V
B HOTELS AND RESORTS, LLC, A FLORIDA
LIMITED LIABILITY COMPANY, AND
CRP/INSITE CLIPPER, LLC, A FOREIGN
LIMITED LIABILITY COMPANY,
Defendants.
i
NOTICE OF FILING
Defendants, CRP/INSITE CLIPPER, LLC, A FOREIGN CORPORATION, AND B
HOTELS AND RESORTS, LLC., A FLORIDA CORPORATION, by and through the
undersigned counsel, hereby files this Notice of FilingCase Law in Support of its Motion for
Summary Judgment.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy ofthe foregoing
was sent via emaiFeportal
onlyon this 2ndday
ofNovember 2021 to: Eric M. Tinstman, Esq.,The Tinstman Law Finn,P.A, 2665 S. BayshoreDr.,Ste.
601, Grand Bay Plaza,Miami, FL 33133, Attomqfbr Plaint#Tat
email: eric@thetinstmanlawfirm.com
/s/CHARISE MORGAN-JOSEPH
Charise Morgan-Joseph, Esq.
Florida Bar #- 102316
charise.morganjoseph@zurichna.com
LAW OFFICE OF MARK C. BURTON
Employees ofZurich Ins. Group
Presidential Circle,Suite 430-N
4000 Hollywood Boulevard
Hollywood, FL 33021
Telephone: (954) 967-6471
E-service: usz.slftl@zurichna.com
Attorneys
forDqfendants,
B HOTELS AND RESORTSLLCand
CRP/INSITE CLIPPER, L.L.C., a foreign limited liability
company
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/02/2021 05:14:21 PM.****
Krouse v. Avis Rent-A-Car System, Inc.
Court of Appeal of Florida, Third District
November 20, 1984
No. 84-925
Reporter
459 So. 2d 1132 *; 1984 Fla. App. LEXIS 15873 **; 9 Fla. L. Weekly 2471
STEVEN J. KROUSE, Personal Representative ofthe Estate
The plaintiffsdecedent argues that genuine issues of material
of JeffreyB. Krouse, a minor, deceased, Appellant, v. AVIS
fact are raised as to whether the defendant David Signore had
RENT-A-CAR SYSTEM, INC., etc., DAVID SIGNORE,
sufficient time to avoid the accident in question. The driver
NANCY SIGNORE, et al.,Appellees
of the motor vehicle who was travelingbehind the Signore
vehicle [*1133] estimates that it took, at most, from five to
Prior History: [**1] An Appeal from the Circuit Court for
ten seconds for the plaintiffvehicle to show signs of losing
Dade County, Leonard Rivkind, Judge.
control and then come across to the wrong side of the road.
Even if correct, it is pure speculationto conclude that the
Counsel: Rosenblatt, Arnowitz & Roth and Domingo
Signore vehicle could have done anything during that time to
Rodriguez, for Appellant.
avoid the collision. The arguments made by the plaintiffs
George, Hartz, Burt & Lundeen and Michael I. Goldberg;
decedent that perhaps the Signore vehicle was travelingtoo
Dube & Wright and Richard Gale, for Appellees.
fast under existing weather conditions and that perhaps he
might have had enough time to avoid the accident had he not
Judges: Schwartz, C.J. and Hubbart and Ferguson, JJ.
been travelingat that rate of speed are also pure conjecture.
The Signore vehicle was travelingwithin [+ '3] the speed
Opinion by: PER CURIAM
limit in its lane of travel and was suddenly struck nearly head-
on by a car coming in the oppositedirection;nothing in this
Opinion
record remotely suggests that Signore could have done
anything to avoid this accident.
See Rawls v. Ziegler, 107
So.2d 601, 608 (Fla. 1958); Johnson v. Gulf Life Insurance
Co., 429 So.2d 744, 746 (Fla. 3d DCA 1983); Colon v. Lara,
[*1132] After carefullyconsideringthe record and briefs in
389 So.2d 1070, 1072 (Fla. 3d DCA 1980); compare Lee v.
this wrongful death case, we conclude that the trial court
Dunnigan, 384 So.2d 165, 166 (Fla. 2d DCA 1980) (positive
committed no error in (1) entering the final summary
testimony of twenty to thirtyseconds reaction time under
judgment under review in favor of the defendant David
similar conditions raises a genuine issue of fact).
Signore and the defendant Avis Rent-A-Car System, Inc., and
(2) subsequently denying the plaintiffSteven J. Krouse's
Second, we think the trial court was well within its discretion
petitionfor rehearing. We reach this conclusion for two
in denying the plaintiffsmotion for rehearing and in rejecting
reasons.
the affidavit filed in connection therewith. The affidavit was
untimely filed and was, in any event, entirelyspeculative.
The
First, we are convinced that only speculative,rather than
trial court
therefore committed no error in denying the
genuine,issues of material fact are raised by this record. The
petition for
rehearing.
See
Coffman Really, Inc. v.
evidence is undisputed that on August 24, 1980, the defendant
Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982),
David Signore was operatinga motor vehicle, which he had
adopting,381 So.2d 1164 (Fla.5th DCA 1980); Stolzenberg
rented from the defendant Avis Rent-A-Car System, Inc.; he
v. Forte Towers South, Inc.,430 So.2d 558, 559 (Fla.3d DCA
was driving within the speed limit in his lane of travel on state
1983), Morgan v. Continental Casualty t 4]
Co., 382
road 60 in Polk County, Florida. A motor vehicle, in which
So.2d 351, 353 (Fla.3d DCA 1980); Gulewicz v. Cziesla, 366
the plaintiffsdecedent [**2] was ridingas a passenger, was
So.2d 507, 508 (Fla. 2d DCA 1979). The final summary
travelingin the opposite direction in the adjoining lane, on the
judgment under review is in all respects
same highway.
The plaintiffsvehicle, without dispute,
suddenly swerved into the lane of travel of the defendant
Affirmed.
David Signore, resulting almost immediately in the fatal
automobile collision herein.
Page 2 of 2
459 So. 2d 1132, *1133; 1984 Fla. App. LEXIS 15873, **4
End of Document
Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez
Court of Appeal of Florida, Third District
September 12, 2012, Opinion Filed
No. 3Dll-1357
Reporter
98 So. 3d 1198 *; 2012 Fla. App. LEXIS 15239 **; 37 Fla. L. Weekly D 2197; 2012 WL 3965041
because of their defective condition-rather than on the
Mount Sinai Medical Center of Greater Miami, Inc., etc.,
sidewalk adjacent to the bus stop, and thus failed to show that
Appellant, vs. Rosalia Gonzalez, as Personal Representative
Mount Sinai's alleged negligence was a legal cause of the
ofthe Estate ofAntonio Gonzalez, deceased, Appellee.
accident, we reverse.
Subsequent History: Released for Publication November 01,
I
2012.
The sum
1**l
total of Mrs. Gonzalez's
[
2] claim was that her
Rehearing denied by Mount Sinai Med. v. Gonzalez, 2012
husband was injured as a result of the hazardous condition of
Fla. App. LEXIS 19506 (Fla. Dist. Ct. App. 3d Dist., Nov. 1,
the
1
1
hospital steps.
The record, however, confirms the
2012)
absence of probativeevidence upon which the jury could have
Review denied by Gonzalez v. Mount Sinai Med. Ctr.,2013
concluded that the accident took place on the steps and that,
Fla. LEXIS 620 (Fla.,Apr. 8, 2013)
Prior History: [**1] An Appeal from the Circuit Court for
1 Her complaint alleged:
Miami-Dade County. Lower Tribunal No. 09-59900. Israel
4.
That
on or about February 13,2009, ANTONIO
Reyes, Judge.
GONZALEZ, deceased, while on the premises owned, operated
and in control of the Defendant, MOUNT SINAI MEDICAL
Counsel: Falk, Waas, Hernandez, Cortina, Solomon &
CENTER, and located at 4300 Alton Road, Miami Beach,
Bonner and Norman M. Waas; Greenberg Traurig and Elliot
Florida 33140, was caused to tripand fall,after not being able
H. Scherker and Julissa Rodriguez, for appellant.
to negotiate the second of three steps. This was caused as a
result of a
Peter P.
missing yellow stripe,which should have been at
Sotolongo; Goldberg & Rosen and Judd Rosen; Joel
hand to indicate the presence of the second step. Tile location
S. Perwin, for appellee.
of the steps in question is located at the bus stop in said
premises
of the Defendant, MOUNT SINAI MEDICAL
Judges: Before WELLS, C.J., and FERNANDEZ, J.,and
CENTER.
SCHWARTZ, Senior Judge.
5. That the Defendant, MOUNT SINAI MEDICAL CENTER,
Opinion by: SCHWARTZ
had knowledge that in the exercise of reasonable care should
have known that said condition as stated in paragraph 4 above,
Opinion
in
said premises of Defendant, constituted a hazard and
presented an unreasonable
[**3]risk of injury and harm to
persons who was legallyon the premises.
6.
That by maintaining said premises in those conditions
[*1200] SCHWARTZ, Senior Judge.
constituted negligence on the part of the Defendant, which
Rosalia Gonzalez sued Mount Sinai hospitalfor the wrongful
proximately resulted
in
his
serious
personal injury and
subsequent death. Defendant, MOUNT SINAI MEDICAL
death of her husband, Antonio Gonzalez. She claimed that, as
she and her husband descended steps at Mount Sinai's main
CENTER, knew or should have noticed at the time of the
accident of the hazardous condition, had the duty of correcting
bus stop, he fell and broke his hip, as a result of which he
this defect,and failed to do so.
passed away a few weeks later. The jury returned a large
verdict for the plaintiff,upon which judgment was entered
7.
As a result of the aforementioned negligence of the
after it was reduced by an uncontested remittitur. Because the
Defendant, ANTONIO GONZALEZ, deceased, was injured,
plaintiff
did not present competent evidence that her husband
said injurieswere pennanent and subsequently led to his death
and the loss of future enjoyment of his life.
even fell on or down the steps-let alone that he did so
8
Page 2 of 4
98 So. 3d 1198, *1200; 2012 Fla. App. LEXIS 15239, **3
therefore, their condition was even related to the accident.
II
Indeed, it shows justthe opposite:
On the "other side" of the issue, we find is only empty
The only probative,direct testimony on the issue was that of
evidentiaryspace.
driver Fausto Manzo, who was sittingin his bus, awaiting
passengers. He testified that he saw the fall itself and that the
1.
Her primary reliance is on her own testimony, which
although it contains statements that support her claim, was on
Gonzalezes had already reached the sidewalk when it
occurred. He stated:
analysis,no more than speculativeand conclusory and thus
valueless. On direct examination, Mrs. Gonzalez admitted that
Q. What were you doing when this incident happened?
she did not [**6] see her husband fall,but rather, after the
A. Well, when the gentleman fell,I had pulled in at
fact,deduced what had occurred:
Mount Sinai and the passengers got off. The gentleman, I
I was on the other one Istep] already. But upon coming
remember, [*1201] he was coming down. Afterwards,
down I don't know what happened to him. I was looking
he was on the sidewalk and he rushed to the bus and he
at him. What I'm deducing from this is that he instead of
ten Ie.s.].He was with his [**4] wife. I believe it was
steppingon the other step, went towards the sidewalk.
his wife.
On cross examination, Mrs. Gonzalez stated that she was only
...
speculatingas to what had occurred:
Q. You said they came down. What did they come
Q. I was asking you before the break where your
down?
husband's feet were when he fell. You do not know
A. Well they came down the steps. There were a couple
where his feet were at the time that he tipped, correct?
of steps there.
A. I just saw that he was looking to balance himself or
Q. And they had competed Isic.]coming down the steps
something. So then I quickly see him on the floor, so I
when you saw this gentleman fall down?
was lookingat him or his feet.
A. Yes, sir.
...
Q. Was he walking on the sidewalk?
Q. Mrs. Gonzalez, even as we sit here today, you don't
know why your husband fell,do you?
A. Yes. When he felldown, he was on the sidewalk, sir
A. Well, I didn't see it,but I would imagine-I imagine
He confirmed this account in a call to his dispatcher
that he-on that step, he didn't see it or he stepped on it,
23
immediately after the accident had occurred.Z,
on the very edge of it and slippedIe.s.].
[*1202] Indeed, Mrs. Gonzalez confirmed that she returned
to the scene of the accident the next day,justto try and figure
2 We disagree with appellee's argument that this testimony was
out how the accident happened, stating"I went back there to
impeached in any material way by the cross examination of Mr.
see and to-how he fell and how it would have been."
Manzo or by a video which showed him pointing to the place on the
V*,7] Opposing counsel clarified:
steps where Mr. Gonzalez's head came to rest (as opposed to where
Q. You just don't know. These are things that you're
the fall actuallyoccurred).In any event, even impeached unfavorable
guessing at?
testimony does not thereby become favorable evidence. It could not
A. [Mrs. Gonzalez] Yes, I do suppose that because I was
result in the creation of an issue for the jury as to causation in the
looking toward what I was doing. I wasn't looking at
absence of any other such evidence.
him.
3 While we think it likely,we need not directlydecide if Mr. Manzo's
testirnony brought the case within the rule that even otherwise
This testimony falls directlyunder the holding in Gooding v
sufficient circumstantial evidence is insufficient to create an issue of
University Hospital Building, Inc., 445 So. 2d 1015, 1018
fact in the face of unrebutted direct
[**5] testimony. See e.g.,
(Fla. 1984) (quoting Prosser, Law of Torts § 41) (footnotes
Realauction.com, LLC v. Grant Street Grp., Inc., 82 So. 3d 1056,
omitted), that "la] mere possibilityof... causation is not
1059 (Fla. 4th DCA 2011) ("In light of the unrebutted direct
enough; and when the rnatter remains one of pure speculation
testimony offered by Realauction and the mere speculativetestimony
or conjecture,or the probabilitiesare at best evenly balanced,
offered by Grant Street,it was unreasonable for the court or jury to
it becomes the duty of the court to direct a verdict for the
'infer'
that
the negotiations were terminated because of the
defendant." See Palmas Y Bambu, S.A. v. E.I. Dupont De
Realauction email. See Kam Seafood Co. v. State, 496 So. 2d 219
(Fla. 1st DCA 1986) (reversingtrial judge's ruling which was based
on an inference that was unreasonable because it contradicted clear
principlethat a fact cannot be established by circumstantial evidence
direct evidence).");Alan & Alan, Inc. v. Gulfstream Car Wash, Inc.,
which is perfectlyconsistent with direct,uncontradicted, reasonable
385 So. 2d 121, 123 (Fla. 3d DCA 1980) ("It is a well-settled
and unimpeached testimony that the fact does not exist.").
Page 3 of 4
98 So. 3d 1198, *1202; 2012 Fla. App. LEXIS 15239, **7
Nemours & Co., 881 So. 2d 565, 569 (Fla. 3d DCA 2004)
therefore, of no evidentiaryvalue whatsoever."); see, e.g.,
(affirming directed verdict in part "because the nurseries
Cedars Med. Ctr.,Inc. v. Ravelo, 738 So. 2d 362,369 (Fla.3d
failed to establish causation").
DCA 1999) ("[W]ithout [**10] a predicate for the opinion
which Ravelo sought to elicit,the trial court correctlyruled
2.
The plaintiffsreliance on her engineering expert is
that the expert'sopinion could not be put before the jury.");
likewise misplaced. His testimony was arguably sufficient as
Rodriguez v. Pino, 634 So. 2d 681, 686 (Fla. 3d DCA 1994)
to whether the steps were properly constructed, see, e.g.,
("It is clear, then, that Idoctors'] opinions regarding Mrs.
Millar v. Tropical Gables Corp., 99 So. 2d 589,590 (Fla.3d
Pino's
competency amount to mere speculation.Expert
DCA 1958) (concluding expert's"testimony would be helpful testimony of this kind may not be given weight.").
in order to determine whether the premises were constructed
and maintained
[**8] in accordance with reasonably safe
3. Finally,the appelleepoints to the obviously hearsay (but
construction and engineering standards"), and, although with
unobjected to) contents of a treatingphysician'sreport in the
less certainty,whether those defects could be deemed the
hospitalrecords apparently referringto the now deceased's
legalcause of Mr. Gonzalez's otherwise unexplained falling account of the accident:
upon and down the steps. See Wong v. Crown Equip. Corp.,
676 So. 2d
This
981, 983
is an
(Fla. 3d DCA 1996) (Schwartz, J.
86-year-old male who was walking off the bus
with his wife and then, after the third step, he caught the
dissenting)("In my opinion,it is clear that these undisputed
facts
edge of his foot and was unable to get his balance, falling
give rise to an eminently reasonable inference that he
with severe pain and discomfort in his left hip. Ie.s.]
fell from the equipment at least partlybecause of the absence
of those safetydevices."); Majeske v. Palm Beach Kennel
Even puttingaside the fact that no findingmay be based even
Club, 117 So. 2d 531, 533 (Fla. 2d DCA 1959) ("IT]he
on unchallenged hearsay alone, see Rothe v. State, 76 So. 3d
question
of whether
Idefendanfs]
negligence
was the
1010, 1011 (Fla. 1st DCA 2011) ("[A] court may not relyonly
proximate cause of the plaintiffsinjury could be proven as
on hearsay evidence to find a violation of community
conclusivelyby circumstantial as by parolevidence.");but see
control."); Perry v. Bradshaw, 43 So. 3d 180, 181 (Fla. 4th
FFong, 676 So. 2d at 983 ("[N]o evidence exists to sustain
DCA 2010) ("IT]he trial court erred in relyingon nothing but
plaintiffsburden as to how the accident happened. In the
inadmissible hearsay."); [ '11] Velilla v. Williams Island,
absence of this evidence, plaintiffscause of action must
705 So. 2d 1044, 1045 (Fla.3d DCA 1998) (rejectingfinding
fail.").
His testimony on the key issue of causation, however,
"based upon pure hearsay which is directlycontrary to the
was decidedly not. He stated as follows:
only direct testimony on the point"),this evidence is also
1VIy opinion is there's a high engineering probabilitythat
markedly deficient. This is because while the report says that
this was the cause of such a misstep. As long as that
the accident occurred as he was walking oy the bus, the
condition [**9] existed, ifs a dangerous condition and
account was not only contrary to the established historical
facts, but to the showing the plaintiff
herself attempted to and
the likelycause ofmissteps.
It is obvious that this testimony was not only well beyond the
was required to make: that the accident occurred as Mr.
witness's supposed expel-tisebut totally"conclusory ill nature
Gonzalez was going allclfell down the steps as a result of their
defective condition.
and... unsupported by any discernible, factually-basedchain
of underlying reasoning." Div. of Admin. v. Samter, 393 So.
IV
2d 1142, 1145 (Fla. 3d DCA 1981) (concluding "no weight
may be accorded" such testimony).As Arkin Construction
All of this was confirmed by a partialsummary judgment
Co. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957), explains:
granted in the hospital'sfavor some eight months before trial,
It is elementary that the conclusion or opinion of an
in which the trial court correctlyconcluded:
expert witness based on facts or inferences not supported
The Court makes the following findings of fact: 1)
by the evidence in a cause has no evidential value. It is
Decedent was 86 years of age at the time of fall; 2)
equally well settled that the basis for a conclusion cannot
Decedent had a historyof 2 priorfalls;3) Decedent had
be deduced or inferred from the conclusion itself. The
prior complaints of dizziness; 4) in the ER the record
opinion of the expert cannot constitute proof of the
reflected that the nurse noted that the Decedent fell
existence of the facts necessary to the support of the
within the last 6
opinion.
months; 5) at time of incident Decedent
and his wife were on their way to the bus after the wife's
See Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050, 1056
appointment; 6) Mrs. Gonzalez was not looking at her
(Fla. 3d DCA 2009) ("IT]he 'expert'testimony in this case
husband [**121 at the time he fell, as she was not
[*1203] findling]no factual support in the record and [was],
looking towards him [e.s.];7) Mrs. Gonzalez does not
Page 4 of 4
98 So. 3d 1198, *1203; 2012 Fla. App. LEXIS 15239, **12
know why the Decedent fell;8) Decedent did not tell
Mrs. Gonzalez how he fell,he didn't say anything; 9)
Decedent fell right in front of the bus; 10) Mr. Manzo
End of Document
saw Decedent approach the bus before he fell;11) Mr.
Manzo does not recall the Decedent on the steps, he
recalled that he fell a little after the steps; 12) Decedent
fell between the steps and the bus.
Notwithstanding these findings,however, the court gave Mrs.
Gonzalez the opportunity to prove her claim to a jury,
concluding "[tlheonly issue for the jury is whether the steps
or some other factor caused the Decedent's fall." She did not
carry that burden. Instead, Mrs. Gonzalez failed to provide
evidence from which a jury could reasonably conclude that,
more likely than not, the hospital steps were a substantial
factor in bringing about her husband's fall. As Gooding, 445
So. 2d at 1018, states:
[*1204] In negligence actions Florida courts follow the
more likelythan not standard of causation and require
proof that the negligence probably caused the plaintiffs
injury.See Tampa Electric Co. v. Jones, 138 Fla. 746,
190 So. 26 (1939); Greene v. Flewelling,366 So. 2d 777
(Fla.2d DCA 1978), [**13] cert. denied, 374 So. 2d 99
(Fla.1979); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla.
1st DCA 1977), cert. denied, 365 So. 2d 710 (Fla. 1978).
Prosser exploredthis standard of proof as follows:
On the issue of the fact of causation, as on other issues
essential to his cause of action for negligence, the
plaintiff,
in general,has the burden of proof. He must
introduce evidence which affords a reasonable basis for
the conclusion that it is more likely than not that the
conduct of the defendant was a substantial factor in
at 1145; Arkin Constr. Co., 99 So. 2d at 561; Trumbull Ins. Co., 2
bringing about the result.
So. 3d at 1056.
Prosser, Law of Torts § 41
(4th Ed. 1971) (footnotes
omitted).
Second, the trial court erred in admitting evidence of a prior slipand
See Claire's Boutiques v. Locastro, 85 So. 3d 1192, 1195 (Fla.
fall at the scene which was not similar to the one in question here.
4th DCA 2012); accord Fetterman & Assocs., P.A. v.
That ruling was made as as a purported "sallction" for an alleged
Friedrich, 69 So. 3d 965,968 (Fla. 4th DCA 2011); Murphy
discovery violation by the defendant. We have severe doubts as to
v. Sarasota Ostrich Fann/Ranch, Inc., 875 So. 2d 767, 769
whether a harmful violation occurred at all,see Mercer v. Raine, 443
(Fla. 2d DCA 2004); Prom v. Graham, 788 So. 2d 393, 396
So. 2d 944, 946 (Fla. 1983), but even if it did, there was no
justification--and we have found no authority to support-the
(Fla. 5th DCA 2001); see also Wroy v. N. Miami Med. Ctr.,
admission of concededly otherwise inadmissible testimony, such as
Ltd., 937 So. 2d 1116, 1117 (Fla.3d DCA 2006).
this to pollutethe fair detennination of issues before the jury. Thus,
the punishment was way out of proportion to the alleged offense. See
The judgment under review is therefore reversed for entry of
Gen. Motors Corp. v. Porritt,891 So. 2d 1056, 1059 (Fla. 2d DCA
judgment in the hospital'sfavor.4
2004) ("'[A]judge cannot simply 'use his discretion to decide that
despite a plain lack of substantial similarityin conditions he will,
nevertheless,admit the evidence.' State v. Arroyo, 422 So.2d 50,53
4 In the interests of adjudicating the substantial issues presented to
(Fla. 3d DCA 1982) [**15] (quoting Love v. State, 457 P. 2d 622,
us, we also find that, for two
[**14]reasons, a new trial would be
628 (Alaska 1969))."); see also Ford Motor Co. v. Hall-Edwards,
required even if a directed verdict is not.
971 So. 2d 854, 860 (Fla.3d DCA 2007) (holding that the trial court
abused its discretion in admitting evidence of past accidents where a
First,the trial court erroneously admitted the unsupported expert
substantial similaritybetween the accident at issue and the past
testimony to which we have already referred. See Samter, 393 So. 2d
accidents had not been established).
Gooding v. University Hospital Bldg., Inc.
Supreme Court of Florida
January 19, 1984
No. 62,828
Reporter
445 So. 2d 1015 *; 1984 Fla. LEXIS 2545 **
certified the following questions:
EMILY GOODING, as personal representativeof the Estate
1.
WHETHER PLAINTIFF IN A WRONGFUL
of T. Hagood Gooding, deceased, Petitioner, v.
DEATH ACTION MUST PROVE THAT MORE
UNIVERSITY HOSPITAL BUILDING, INC., d/Wa
MEMORIAL
LIKELY THAN NOT THE DEATH WAS CAUSED
HOSPITAL OF JACKSONVILLE, etc.,
BY DEFENDANT'S NEGLIGENCE.
Respondent
2.
WHETHER A THEORY OF RECOVERY FOR
LOSS OF A CHANCE TO SURVIVE PREDICATED
Subsequent History: [**1]
Rehearing Denied March 22,
UPON ALLEGED MEDICAL MALPRACTICE IS
1984.
ACTIONABLE IN FLORIDA; AND, IF SO, (A)
WHETHER THE TRIAL COURT PROPERLY
Prior History: Applicationfor Review of the Decision of the
INSTRUCTED ON SAME, AND (B) WHAT IS THE
District Court of Appeal - Certified Great Public Importance.
APPROPRIATE MEASURE OF DAMAGES?
First District - Case No. VV-93.
Id. at 1115. We have jurisdictionunder article V, section
Counsel: Richard W. Ervin, Brian S. Duffy and Robert King
3(b)(4) of the Florida Constitution.
We answer the first
High, Jr.,of Ervin, Varn, Jacobs, Odom & Kitchen,
question in the affirmative, the second question in the
Tallahassee, Florida; and V. James Facciolo of Searcy &
negative,and approve the decision under review.
Facciolo, Jacksonville, Florida, for Petitioner.
Bruce
On
S. Bullock and Robert M. Sharp of Bullock, Sharp,
the afternoon of October 14, 1976 T. Hagood Gooding
Childs, Mickler & Cohen, Jacksonville, Florida, for
suffered lower abdominal pain and fainted at home.
Mr.
Respondent.
Gooding's
wife
called
the
office
of
Mr.
Gooding's
gastroenterologist,
Dr. Borland, to inform Dr. Borland of
Larry Klein, West Palm Beach, Florida, for Academy of
these
symptoms.
Mr. Gooding was transported to the
Florida Trial Lawyers, Amicus Curiae.
emergency room of Memorial Hospital of Jacksonville. The
Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg,Eaton,
emergency room staff failed to take a historyor to examine
Meadow & Olin, Miami, Florida, for Dade County Trial
Mr. Gooding in the belief that Dr. Borland, who was in the
Lawyers Association, Amicus Curiae.
hospitaland aware that Mr.
[**3] Gooding was coming to
the emergency room, would arrive shortly. Dr. Borland did
James E. Cobb and Jack W. Shaw, Jr. of Mathews, Osborne,
not respond to repeated paging. Mr. Gooding complained of
McNatt, Gobelman & Cobb, Jacksonville, Florida; and John
increasing abdominal pain and asked to use a bedpan. Soon
E. Thrasher, Jacksonville, Florida, for Florida Medical
after strainingon the bedpan, Mr. Gooding could not catch his
Association, Amicus Curiae.
breath. Dr. Borland arrived in the emergency room when Mr.
Judges: McDonald, J. Alderman, C.J., Boyd, Overton and
Gooding went into cardiac arrest. Mr. Gooding died about
forty-five
minutes after arrivingat the hospital.The autopsy
Shaw, JJ.,concur. Adkins, J.,dissents.
revealed that he died from a ruptured abdominal aortic
Opinion by: McDONALD
aneurysm which caused massive internal bleeding.
Emily Gooding, personal representativeof Mr. Gooding's
Opinion
estate, brought a wrongful death action against the hospital
allegingnegligence by the emergency room staff in not taking
an adequate history,in failingto physically examine Mr.
[*1016]
This case is before us to review a district court
Gooding, and in not ordering the laboratory tests necessary to
decision, UniversityHospital Building Inc. v. Gooding [**2]
diagnose and treat Mr. Gooding's abdominal aneurysm before
419 So.2d 1111
,
(Fla.
[*1017]
1st DCA 1982), which
he Med out and went into cardiac arrest. Mrs. Gooding's
Page 2 of 4
445 So. 2d 1015, *1017; 1984 Fla. LEXIS 2545, **3
expert witness, Dr. Charles Bailey, a cardiologist,
testified
than not standard of causation and require proof that the
that the inaction
of the emergency room staff violated
negligence probably caused the plaintiffs
injury. See Tampa
accepted medical standards.
Dr. Bailey, however, failed to
Electric Co.
v.
Jones, 138 Fla. 746, 190 So. 26 (1939);
testify that
immediate
diagnosis and
surgery
more
Greene v. Flewelling,366 So.2d 777 (Fla. 2d DCA 1978),
likely[**4] than not would have enabled Mr. Gooding to
cert. denied, 374 So.2d 99 (Fla.1979); Bryant v. Jax Liquors,
survive. Even so, the trial court denied the hospital'smotion
352 So.2d 542 (Fla. 1 st DCA 1977), cert. denied, 365 So.2d
for directed verdict on causation. In addition to the standard
710 (Fla. 1978). Prosser explored this standard of proof as
jury instruction on negligence and over the hospital's follows:
objection, the trial court instructed the jury that they could
On the issue of the fact of causation, as on other issues
find for Gooding if the hospitaldestroyed Mr. Gooding's
essential to his cause of action for negligence, the
chance to survive. 1 The jury found the hospitalliable and
plaintiff,
in general,has the burden of proof. He must
awarded $300,000 in compensatory damages to Gooding's
introduce evidence which affords a reasonable basis for
estate.
the conclusion that it is more likelythan not that the
[**5] The hospitalappealed. The district court reversed on
conduct of the defendant was a substantial factor in
the grounds that the trial court should have directed a verdict
bringing about the result.
A mere possibilityof such
in favor of the hospital because Mr. Gooding's chances of
causation is not enough; and when the matter remains
survival under the best of conditions were no more than even.
one of pure speculationor conjecture,or the probabilities
The plaintiff,therefore, could not meet the more likely
are at best evenly balanced, it becomes [**7] the duty of
[*1018]
than not test for causation. The district court
the court to direct a verdict for the defendant.
certified the questions above and recognized the apparent
conflict between this decision and the decisions of the third
Prosser, Law qfTorts § 41 (4th Ed. 1971) (footnotes omitted).
and fourth districts in Hernandez v. Clinica Pasteur, Inc.,293
Mrs.
Gooding first contends that the estate presented
So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352
sufficient expert testimony for a jury to find the hospital's
So.2d 1200 (Fla.4th DCA 1977).
negligence more likely than not constituted a substantial
factor in Mr. Gooding's death.
She claims that the district
To prevail in a medical malpractice case a plaintiffmust
court impermissibly reweighed the evidence and substituted
establish the following:the standard of care owed by the
defendant, the defendant's breach of the standard of care, and
its own judgment in place of the jury verdict. This is not so.
Our review of the evidence convinces us that the
that said breach
testimony
proximately caused the damages claimed.
Wale v. Barnes, 278 So.2d 601, 603 (Fla. 1973). In this case
established a no better than even chance for Mr. Gooding to
survive, even had there been an immediate diagnosis of the
Dr. Bailefs testimony established the standard of care and the
aneurysm and emergency surgery. Therefore, a jury could not
hospital'sbreach of that standard when its emergency room
reasonably find that but for the negligent failure to properly
staff failed to diagnose and treat Mr. Gooding. The critical
diagnose and treat Mr. Gooding he would not have died.
issue here is whether the district court correctlydecided that
the hospital[**6] was entitled to a directed verdict because
Mrs.
Gooding also contends that Florida courts have
the plaintifffailed to prove causation. We hold that it did and
recognized a cause of action for loss of a chance to survive,
approve the decision of the district court.
even where the patienfs chances of survival were evenly
In
balanced or less than
negligence actions Florida courts follow the more likely
likelyin decisions of the third and fourth
district courts of appeal in Hernandez v. Clinica Pasteur, Inc.
and Dawson v. Weems. In Hernandez [**8] the wrongful
1 The actual causation instructions given are as follows:
death action was based upon the defendanfs failure to
diagnose and treat a heart condition when prompt diagnosis
"Negligence is a legalcause of death and damages if it directly
and treatment would have given the patienta better chance to
and in natural and continuous sequence produces or contributes
live. The district court reversed a directed verdict in favor of
substantiallyto producing such death, so that it can reasonably
the defendants, on the grounds that the plaintiffintroduced
be said that,but for the negligence, the death would not have
sufficient evidence to create a jury question on causation.
occurred.
Ifyou find that Hagood Gooding had a significant
chance of survival and ifyoufind that negligence on the part of
The issue of proximate cause was as to whether
the defendant, its agents or servants, destroyed Mr. Gooding's
appellees'malpractice contributed to the cause of death.
chances for survival, then the negligence of that defendant or
In
this
connection,
the
testimony that appellant's
defendants -- that defendant is a legal cause of injury".
decedent would have had a better chance to survive if he
(Emphasis added.) In our view the trial judge erred in adding
had received prompt medical attention was sufficient to
this change to the standard jury charges on legalcause.
Page 3 of 4
445 So. 2d 1015, *1018; 1984 Fla. LEXIS 2545, **8
form a basis for the submission of the issue to the jury.
furnishes a basis for the fact-finder to go further and find
that such increased risk was in turn a substantial factor in
bringing
about
the
resultant
harm;
the
necessary
proximate cause will have been made out if the jury sees
293 So.2d at 750. In Dawson v. Weems the fourth district
fit to find cause in fact.
cited Hernandez to support [*1019] a holding that a jury
could properly find that a hospitalcaused a patient'sdeath by
giving him bank blood instead of the fresh blood requested,
thereby deprivingthe patientof his "best chance" to survive,
Id. at 272, 392 A.2d at 1288 (footnote omitted). The plaintiff
notwithstanding the plaintiffsfailure to prove this deprivation
in Hamd also [**11] met the more likelythan not standard
either contributed to the patienfs death or made his survival
with expert testimony that the patienthad a seventy-five
unlikely. 352 So.2d at 1203. These [**9] cases suggest a
percent chance of recovery with prompt treatment. Id. Other
standard we cannot accept.
jurisdictionshave allowed recovery even where the chance of
survival was less than even. See James v. United States, 483
Neither Hernandez nor Dawson contains any reasoning or
F. Supp. 581 (hI.D.Cal. 1980) (negligent diagnosis which
authority to support a rule relaxing the more likelythan not
destroys even the smallest chance to prolong life or reduce
standard of causation in medical malpractice actions although
suffering may be actionable); Kallenberg v. Beth Israel
they do hold that a plaintiff
may go to the jury on proximate
Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508 (hI.Y.App.Div.
cause merely by showing that the defendant decreased the
1974), affirmed, 31 N.Y.2d 719, 374 N.Y.S.2d 615, 337
chances for survival, no matter how small. Those cases are
N.E.2d 128 (1975) *roximate cause is a jury questionwhere
antithetical
to
our concept of proximate cause and are
evidence indicates that the patient had a twenty to forty
disapproved.
percent chance of survival with proper treatment); Herskovits
There is some authorityfor the loss of a chance to survive
v.
Group Health Cooperative, 99 Wash.2d 609,664 P.2d 474
tlleoryfrom otller jurisdictions. The reasoning bellmd this
(1983) (negligentdiagnosisthat recluced a patiellt's
chance of
theory was perhaps best stated in Hicks v. United States, 368
survival from thirty-nineto twenty-five percent created jury
F.2d 626, 632 (4th Cir. 1966) as follows:
question on proximate cause).
When a defendant's negligent action or inaction has
Relaxing the causation requirement might correct a perceived
unfaimess to some plaintiffswho could prove the possibility
effectivelyterminated a person's chance of survival, it
does not
that the medical
lie in the defendant's mouth to raise conjectures
malpractice caused an injurybut could not
as to the measure of the chances that he has put beyond
prove the probabilityof causation, but [**12] at the same
the possibilityof realization. If there was any substantial
time could create an injustice.Health care providers could
find themselves
possibility
of survival and the defendant has destroyedit,
defending cases simply because a patientfails
he is answerable. Rarely is it possibleto demonstrate to
to
improve or where serious disease processes are not
[*10201
arrested because another course of action could
an absolute certainty what would have happened in
circumstances tllat tlle wrongdoer [**10] did not allow
possibly bring a better result.
No other professional
to come to pass.
The law does not in the existing malpracticedefendant carries this burden of liability
without
circumstances
the
require the plaintiffto show to a certainty
requirement that plaintiffsprove the alleged negligence
that
the
patient would
have
lived
had she been
probably rather than possibly caused the injury. See e.g
Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975)
hospitalizedand operatedon promptly.
(plaintiff
in legalmalpractice action must show that, but for
the attorney'snegligence, the plaintiffhad a good cause of
2
action in the underlying suit).
We cannot approve the
The plaintiffin Hicks, however, also met the more likelythan
substitution of such an obvious inequityfor a perceivedone.
not test because expert testimony established that the patient
"would have survived" with prompt diagnosisand surgery. Id.
[**13] We believe the better course would be to retain the
more
In Hamd
likely than not standard of causation in medical
v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the
Supreme Court of Pennsylvania approved the loss of a chance
theory, citingHicks and section 323(a) of the Restatement
2 We have also held that a person convicted of crime is not entitled to
(Second) of Torts (1965). The Hamil court held that
relief from his conviction because of ineffective assistance of his
once a plaintiffhas demonstrated that defendant's acts or
counsel unless he could show that this deficient conduct likely
omissions, in a situation to which Section 323(a) applies, affected the outcome of court proceedings. Knight v. State, 394
have increased the risk of harm to another, such evidence
So.2d 997 (Fla.1981).
Page 4 of 4
445 So. 2d 1015, *1020; 1984 Fla. LEXIS 2545, **13
malpracticeactions, as stated by the Supreme Court of Ohio
other words, the plaintiffmust show that what was done or
as follows:
failed to be done probably would have affected the outcome.
In
an action for wrongful death, where medical
In the case under review Mrs. Gooding failed to meet this test
malpracticeis alleged as the proximate cause of death,
by presenting evidence of a greater than even chance of
and plaintiffsevidence indicates that a failure to
survival for Mr. Gooding in the absence of negligence. The
diagnose the injury prevented the patient from an
district court properly ruled that the trial court should have
opportunityto be operated on, which failure eliminated
grantedthe hospital's
motion for directed verdict.
any chance of the patient'ssurvival, the issue of
For the reasons stated
proximate cause can be submitted to a jury only if there
above, we approve the decision under
review
and answer the first certified
is
sufficient
evidence
showing
that
with
proper
question in the
affirmative allcl retain the more
diagnosis, treatrrlellt allcl surgery the patient probably
likely tllail [*1021]
not
standard of causation in medical malpractice actions.
We
would have survived.
answer the second questionon allowing recovery for the loss
of a chance to survive in the negative. We leave the question
of a proper instruction and measure of damages to a future
Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio
ease meeting the standard for recovery.
St.2d 242, 253-54, 272 N.E.2d 97, 104 (1971). In Cooper, as
It is so ordered.
in the case at bar, the plaintiffsued a hospitaland other health
care providers for failing to properly diagnose and treat a
ALDERMAN, C.J., BOYD, OVERTON and SHAW, JJ.,
patient in the hospital'semergency room. The patient in
Concur.
Cooper later died of a skull fracture which caused intracranial
pressure and hemorrhage.
The plaintiffs expert witness
ADKINS, J.,Dissents.
testified that the patientwould have had about a fiftypercent
chance of survival [**14] with surgery. The Cooper court
affirmed a directed verdict for the defendants, rejecting the
End of Document
plaintiffsarguments for a lesser standard of causation in loss
of a chance cases.
Lesser standards of proof are understandably attractive in
malpractice cases where physical well being, and life
itself,are the subjectof litigation.The strong intuitive
sense of humanity tends to emotionallydirect us toward
a conclusion that in an action for wrongful death an
injuredperson should be compensated for the loss of any
chance
for
survival,
regardless of its remoteness.
However, we have trepidationsthat such a rule would be
so loose that it would produce more injustice than
justice.
Id., at 251-52, 272 N.E.2d at 103. Cooper has been followed
in other jurisdictions,see Hiser v. Randolph, 126 Ariz. 608,
617 P.2d 774 (Ct.App. 1980); Morgenroth v. Pacific Medical
Center, Inc., 54 Cal.App.3d 521, 126 Cal.Rptr. 681 (Ct.App.
1976),
and reflects the majority rule of jurisdictions
consideringthis issue.
We agree with the majority rule as enunciated in Cooper and
hold that a plaintiff
in a medical malpracticeaction must show
more than a decreased chance r**1
[ '15] of survival because of a
defendant's conduct.
The plaintiffmust show that the injury
more likelythan not resulted from the defendant's negligence
in order to establish a jury question on proximate cause. In
Silver Springs Moose Lodge No. 1199 v. Orman
Court of Appeal of Florida, Fifth District
January 14, 1994, Filed
CASE Nos. 93-1390, 93-1985
Reporter
631 So. 2d 1119 *; 1994 Fla. App. LEXIS 77 **; 19 Fla. L. Weekly D 121
5:30 P.M.
SILVER SPRINGS MOOSE LODGE NO. 1199, etc.,
Appellant, v. MARION ORMAN and KARL ORMAN,
When they arrived at the "bingo entrance," Orman and
Appellees.
Hensley noticed that rainwater coming from an overhang had
caused a pu(idleto accumulate outside the building.Patrons
Subsequent History: [**1] Petition for Rehearing Denied
had to step over the puddle to enter the bingo hall. Once
February 16, 1994. Released for Publication March 7, 1994.
inside, there were no signs or cones warning patrons that the
floor was slipperyor wet. No workers were mopping up any
Prior History: Appeal from the Circuit Court for Marion
water or givingverbal warnings as to any danger.Also, there
County, Thomas D. Sawaya, Judge.
was no umbrella stand at the entrance, so bingo players
carried their umbrellas with them across the hall to their seats.
Disposition: REVERSED.
Orman testified that she observed between 25 and 30 people
Counsel: Matthew R. Danahy of Shofi, Smith, Hennen,
already inside when she entered the hall. Hensley estimated
Jenkins, Stanley& Gramovot, P.A., Tampa, for Appellant.
the number to be between 35 and 40. Some were in the front
Keith H. Lefevre and John Sanders of Jacobs & Goodman,
of the hall purchasing admission tickets, while others were
P.A., Altamonte Springs,for Appellees.
along the side in the nonsmoking area or back, playing cards
and socializing.
Judges: GOSHORN, PETERSON, GRIFFIN
Both Orman and Hensley testified that, as they walked into
Opinion by: GOSHORN
the hall, they did not notice any water on the floor inside the
door. Orman and Hensley walked approximately 35 to 40 feet
Opinion
inside the bingo hall, made a right turn at the [**3] third or
fourth row of tables and while rounding the next turn, Orman
lost her footingand fell. Orman did not know how the liquid
on which she fell got onto the floor, nor could she say how
[*1119] GOSHORN, J.
long it had been there before the fall. There were no smudges,
streaks, tracks, or scuff marks which would indicate that it
Silver
Springs Moose Lodge No.
1199 (Moose Lodge)
had been on the floor for a considerable amount oftime.
appeals the final judgment
[*1120]
entered in favor of
Marion and Karl Orman stemming from Marion Orman's slip The only other witness who testified as to the circumstances
and fall accident that occurred inside the Moose Lodge. The
surrounding the liquidwas Hensley. She stated that what she
Moose Lodge argues that the trial court improperly submitted
saw appeared to be "drops of water" and speculated that
this
case to the jury because the Ormans presented no
possiblythey had dripped off of someone's umbrella or shoes.
evidence that the slippery condition existed for a sufficient
She did not see a puddle of water, nor did she see a trail from
period of time to place the Moose Lodge on constructive
the entrance leading toward the spot where Orman fell. No
notice of its existence. We reverse.
evidence was presentedas to the originof the water drops or
the length of time they were on the floor before Orman's
Orman and her sister,Jean Hensley, regularlyattended bingo
accident occurred.
games held at the Moose Lodge. Usually, they arrived at the
bingo hall well before the startingtime in order to purchase
Moose Lodge made a motion for a directed verdict at the
bingo packets,have a cup of coffee, visit with their friends,
close of the plaintiffscase and again at the close of all the
and set up their boards. However, because it was rainingon
evidence. The trial court reserved ruling on these motions
this [**2] particularafternoon, they delayed their departure
until the jury rendered its verdict. After the jury ruled in favor
by approximately 15 minutes, and arrived between 5:25 and
Page 2 of 4
of the Ormans, Moose Lodge made a motion for judgment
there for a sufficient periodof time for the Moose Lodge to be
notwithstanding the verdict [**4]
(JNOV). Thereafter, the
charged with
constructive
knowledge of a potentially
court denied Moose Lodge's motions for directed verdict and
dangerous condition. Thus, as in Marcotte, because there was
JNOV. Moose Lodge appeals.
no evidence of actual or constructive knowledge, the trial
court should have granted the defendanfs motion for a
We agree with the Moose Lodge tllat the Olmans failed to directed verdict. See also Wal-Mart Stores, Inc. v. King, 592
present any evidence demonstrating that Moose Lodge had
So. 2d 705 (Fla. 5th DCA 1991), review denied, 602 So. 2d
constructive notice 1 of the liquidon its floor priorto Orman's
942 (Fla. 1992) (holdingthat without some evidence of the
accident The duty to learn of dangerous conditions in
length of time the condition existed, liabilitycannot be
premises liabilitycases was set forth by this court in Winn-
deterrnined and summary judgment is proper).
Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA
1989). In Marcotte, a customer sued a supermarket after she
We recognize that in appropriate cases, constructive
slipped and fell on a slipperysubstance on the supermarkefs
knowledge may be proven by circumstantial evidence.
floor. The customer failed to produce any evidence that the
Newalk v. Florida Supermarkets, Inc., 610 So. 2d 528, 529
supermarkefs agents or employees caused the substance to be
(Fla.3rd DCA 1992); [**7]
Teate v. Winn-Dixie Stores, Inc.,
on the floor or that they had actual or constructive knowledge
524 So. 2d 1060, 1061 (Fla. 3rd DCA 1988). In an attempt to
of its existence before the incident occurred. This court, in
apply this principle,the Ormans argue that the jury could
discussing the
legal duty
commonly referred to
as
infer that the water had come from a drippingumbrella used
"constructive notice," stated:
by one of the patrons. Based on that inference, the jury could
further infer that because the hall opened at 4:30 P.M. and 30
If a reasonable inspection would have revealed the
or so patrons were already there when Onnan arrived, the
dangerous condition in question,and if the dangerous
water that inferentiallydripped from an umbrella could have
condition existed prior [*1121] to the injury a length of
been on the floor for one hour before Orman's fall. These
time in excess of the time between reasonably spaced
multiple inferences would then enable the jury to conclude
inspections,then the trier of fact [**5] should find that
that the dangerous condition existed for a sufficient length of
the possessor neglected his duty and is liable for any
time before the accident to charge IVIoose Lodge with
injury legallycaused by that neglect. On the other halld,
constructive notice thereof.
if the injured invitee fails to prove these matters, and
specifically
fails to prove that the dangerous condition
The Florida
Preview
Filing# 137769515 E-Filed 11/02/2021 05:14:23 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-19-013907 MARK CATES, Plaintiff, V B HOTELS AND RESORTS, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND CRP/INSITE CLIPPER, LLC, A FOREIGN LIMITED LIABILITY COMPANY, Defendants. i NOTICE OF FILING Defendants, CRP/INSITE CLIPPER, LLC, A FOREIGN CORPORATION, AND B HOTELS AND RESORTS, LLC., A FLORIDA CORPORATION, by and through the undersigned counsel, hereby files this Notice of FilingCase Law in Support of its Motion for Summary Judgment. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy ofthe foregoing was sent via emaiFeportal onlyon this 2ndday ofNovember 2021 to: Eric M. Tinstman, Esq.,The Tinstman Law Finn,P.A, 2665 S. BayshoreDr.,Ste. 601, Grand Bay Plaza,Miami, FL 33133, Attomqfbr Plaint#Tat email: eric@thetinstmanlawfirm.com /s/CHARISE MORGAN-JOSEPH Charise Morgan-Joseph, Esq. Florida Bar #- 102316 charise.morganjoseph@zurichna.com LAW OFFICE OF MARK C. BURTON Employees ofZurich Ins. Group Presidential Circle,Suite 430-N 4000 Hollywood Boulevard Hollywood, FL 33021 Telephone: (954) 967-6471 E-service: usz.slftl@zurichna.com Attorneys forDqfendants, B HOTELS AND RESORTSLLCand CRP/INSITE CLIPPER, L.L.C., a foreign limited liability company *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/02/2021 05:14:21 PM.**** Krouse v. Avis Rent-A-Car System, Inc. Court of Appeal of Florida, Third District November 20, 1984 No. 84-925 Reporter 459 So. 2d 1132 *; 1984 Fla. App. LEXIS 15873 **; 9 Fla. L. Weekly 2471 STEVEN J. KROUSE, Personal Representative ofthe Estate The plaintiffsdecedent argues that genuine issues of material of JeffreyB. Krouse, a minor, deceased, Appellant, v. AVIS fact are raised as to whether the defendant David Signore had RENT-A-CAR SYSTEM, INC., etc., DAVID SIGNORE, sufficient time to avoid the accident in question. The driver NANCY SIGNORE, et al.,Appellees of the motor vehicle who was travelingbehind the Signore vehicle [*1133] estimates that it took, at most, from five to Prior History: [**1] An Appeal from the Circuit Court for ten seconds for the plaintiffvehicle to show signs of losing Dade County, Leonard Rivkind, Judge. control and then come across to the wrong side of the road. Even if correct, it is pure speculationto conclude that the Counsel: Rosenblatt, Arnowitz & Roth and Domingo Signore vehicle could have done anything during that time to Rodriguez, for Appellant. avoid the collision. The arguments made by the plaintiffs George, Hartz, Burt & Lundeen and Michael I. Goldberg; decedent that perhaps the Signore vehicle was travelingtoo Dube & Wright and Richard Gale, for Appellees. fast under existing weather conditions and that perhaps he might have had enough time to avoid the accident had he not Judges: Schwartz, C.J. and Hubbart and Ferguson, JJ. been travelingat that rate of speed are also pure conjecture. The Signore vehicle was travelingwithin [+ '3] the speed Opinion by: PER CURIAM limit in its lane of travel and was suddenly struck nearly head- on by a car coming in the oppositedirection;nothing in this Opinion record remotely suggests that Signore could have done anything to avoid this accident. See Rawls v. Ziegler, 107 So.2d 601, 608 (Fla. 1958); Johnson v. Gulf Life Insurance Co., 429 So.2d 744, 746 (Fla. 3d DCA 1983); Colon v. Lara, [*1132] After carefullyconsideringthe record and briefs in 389 So.2d 1070, 1072 (Fla. 3d DCA 1980); compare Lee v. this wrongful death case, we conclude that the trial court Dunnigan, 384 So.2d 165, 166 (Fla. 2d DCA 1980) (positive committed no error in (1) entering the final summary testimony of twenty to thirtyseconds reaction time under judgment under review in favor of the defendant David similar conditions raises a genuine issue of fact). Signore and the defendant Avis Rent-A-Car System, Inc., and (2) subsequently denying the plaintiffSteven J. Krouse's Second, we think the trial court was well within its discretion petitionfor rehearing. We reach this conclusion for two in denying the plaintiffsmotion for rehearing and in rejecting reasons. the affidavit filed in connection therewith. The affidavit was untimely filed and was, in any event, entirelyspeculative. The First, we are convinced that only speculative,rather than trial court therefore committed no error in denying the genuine,issues of material fact are raised by this record. The petition for rehearing. See Coffman Really, Inc. v. evidence is undisputed that on August 24, 1980, the defendant Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982), David Signore was operatinga motor vehicle, which he had adopting,381 So.2d 1164 (Fla.5th DCA 1980); Stolzenberg rented from the defendant Avis Rent-A-Car System, Inc.; he v. Forte Towers South, Inc.,430 So.2d 558, 559 (Fla.3d DCA was driving within the speed limit in his lane of travel on state 1983), Morgan v. Continental Casualty t 4] Co., 382 road 60 in Polk County, Florida. A motor vehicle, in which So.2d 351, 353 (Fla.3d DCA 1980); Gulewicz v. Cziesla, 366 the plaintiffsdecedent [**2] was ridingas a passenger, was So.2d 507, 508 (Fla. 2d DCA 1979). The final summary travelingin the opposite direction in the adjoining lane, on the judgment under review is in all respects same highway. The plaintiffsvehicle, without dispute, suddenly swerved into the lane of travel of the defendant Affirmed. David Signore, resulting almost immediately in the fatal automobile collision herein. Page 2 of 2 459 So. 2d 1132, *1133; 1984 Fla. App. LEXIS 15873, **4 End of Document Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez Court of Appeal of Florida, Third District September 12, 2012, Opinion Filed No. 3Dll-1357 Reporter 98 So. 3d 1198 *; 2012 Fla. App. LEXIS 15239 **; 37 Fla. L. Weekly D 2197; 2012 WL 3965041 because of their defective condition-rather than on the Mount Sinai Medical Center of Greater Miami, Inc., etc., sidewalk adjacent to the bus stop, and thus failed to show that Appellant, vs. Rosalia Gonzalez, as Personal Representative Mount Sinai's alleged negligence was a legal cause of the ofthe Estate ofAntonio Gonzalez, deceased, Appellee. accident, we reverse. Subsequent History: Released for Publication November 01, I 2012. The sum 1**l total of Mrs. Gonzalez's [ 2] claim was that her Rehearing denied by Mount Sinai Med. v. Gonzalez, 2012 husband was injured as a result of the hazardous condition of Fla. App. LEXIS 19506 (Fla. Dist. Ct. App. 3d Dist., Nov. 1, the 1 1 hospital steps. The record, however, confirms the 2012) absence of probativeevidence upon which the jury could have Review denied by Gonzalez v. Mount Sinai Med. Ctr.,2013 concluded that the accident took place on the steps and that, Fla. LEXIS 620 (Fla.,Apr. 8, 2013) Prior History: [**1] An Appeal from the Circuit Court for 1 Her complaint alleged: Miami-Dade County. Lower Tribunal No. 09-59900. Israel 4. That on or about February 13,2009, ANTONIO Reyes, Judge. GONZALEZ, deceased, while on the premises owned, operated and in control of the Defendant, MOUNT SINAI MEDICAL Counsel: Falk, Waas, Hernandez, Cortina, Solomon & CENTER, and located at 4300 Alton Road, Miami Beach, Bonner and Norman M. Waas; Greenberg Traurig and Elliot Florida 33140, was caused to tripand fall,after not being able H. Scherker and Julissa Rodriguez, for appellant. to negotiate the second of three steps. This was caused as a result of a Peter P. missing yellow stripe,which should have been at Sotolongo; Goldberg & Rosen and Judd Rosen; Joel hand to indicate the presence of the second step. Tile location S. Perwin, for appellee. of the steps in question is located at the bus stop in said premises of the Defendant, MOUNT SINAI MEDICAL Judges: Before WELLS, C.J., and FERNANDEZ, J.,and CENTER. SCHWARTZ, Senior Judge. 5. That the Defendant, MOUNT SINAI MEDICAL CENTER, Opinion by: SCHWARTZ had knowledge that in the exercise of reasonable care should have known that said condition as stated in paragraph 4 above, Opinion in said premises of Defendant, constituted a hazard and presented an unreasonable [**3]risk of injury and harm to persons who was legallyon the premises. 6. That by maintaining said premises in those conditions [*1200] SCHWARTZ, Senior Judge. constituted negligence on the part of the Defendant, which Rosalia Gonzalez sued Mount Sinai hospitalfor the wrongful proximately resulted in his serious personal injury and subsequent death. Defendant, MOUNT SINAI MEDICAL death of her husband, Antonio Gonzalez. She claimed that, as she and her husband descended steps at Mount Sinai's main CENTER, knew or should have noticed at the time of the accident of the hazardous condition, had the duty of correcting bus stop, he fell and broke his hip, as a result of which he this defect,and failed to do so. passed away a few weeks later. The jury returned a large verdict for the plaintiff,upon which judgment was entered 7. As a result of the aforementioned negligence of the after it was reduced by an uncontested remittitur. Because the Defendant, ANTONIO GONZALEZ, deceased, was injured, plaintiff did not present competent evidence that her husband said injurieswere pennanent and subsequently led to his death and the loss of future enjoyment of his life. even fell on or down the steps-let alone that he did so 8 Page 2 of 4 98 So. 3d 1198, *1200; 2012 Fla. App. LEXIS 15239, **3 therefore, their condition was even related to the accident. II Indeed, it shows justthe opposite: On the "other side" of the issue, we find is only empty The only probative,direct testimony on the issue was that of evidentiaryspace. driver Fausto Manzo, who was sittingin his bus, awaiting passengers. He testified that he saw the fall itself and that the 1. Her primary reliance is on her own testimony, which although it contains statements that support her claim, was on Gonzalezes had already reached the sidewalk when it occurred. He stated: analysis,no more than speculativeand conclusory and thus valueless. On direct examination, Mrs. Gonzalez admitted that Q. What were you doing when this incident happened? she did not [**6] see her husband fall,but rather, after the A. Well, when the gentleman fell,I had pulled in at fact,deduced what had occurred: Mount Sinai and the passengers got off. The gentleman, I I was on the other one Istep] already. But upon coming remember, [*1201] he was coming down. Afterwards, down I don't know what happened to him. I was looking he was on the sidewalk and he rushed to the bus and he at him. What I'm deducing from this is that he instead of ten Ie.s.].He was with his [**4] wife. I believe it was steppingon the other step, went towards the sidewalk. his wife. On cross examination, Mrs. Gonzalez stated that she was only ... speculatingas to what had occurred: Q. You said they came down. What did they come Q. I was asking you before the break where your down? husband's feet were when he fell. You do not know A. Well they came down the steps. There were a couple where his feet were at the time that he tipped, correct? of steps there. A. I just saw that he was looking to balance himself or Q. And they had competed Isic.]coming down the steps something. So then I quickly see him on the floor, so I when you saw this gentleman fall down? was lookingat him or his feet. A. Yes, sir. ... Q. Was he walking on the sidewalk? Q. Mrs. Gonzalez, even as we sit here today, you don't know why your husband fell,do you? A. Yes. When he felldown, he was on the sidewalk, sir A. Well, I didn't see it,but I would imagine-I imagine He confirmed this account in a call to his dispatcher that he-on that step, he didn't see it or he stepped on it, 23 immediately after the accident had occurred.Z, on the very edge of it and slippedIe.s.]. [*1202] Indeed, Mrs. Gonzalez confirmed that she returned to the scene of the accident the next day,justto try and figure 2 We disagree with appellee's argument that this testimony was out how the accident happened, stating"I went back there to impeached in any material way by the cross examination of Mr. see and to-how he fell and how it would have been." Manzo or by a video which showed him pointing to the place on the V*,7] Opposing counsel clarified: steps where Mr. Gonzalez's head came to rest (as opposed to where Q. You just don't know. These are things that you're the fall actuallyoccurred).In any event, even impeached unfavorable guessing at? testimony does not thereby become favorable evidence. It could not A. [Mrs. Gonzalez] Yes, I do suppose that because I was result in the creation of an issue for the jury as to causation in the looking toward what I was doing. I wasn't looking at absence of any other such evidence. him. 3 While we think it likely,we need not directlydecide if Mr. Manzo's testirnony brought the case within the rule that even otherwise This testimony falls directlyunder the holding in Gooding v sufficient circumstantial evidence is insufficient to create an issue of University Hospital Building, Inc., 445 So. 2d 1015, 1018 fact in the face of unrebutted direct [**5] testimony. See e.g., (Fla. 1984) (quoting Prosser, Law of Torts § 41) (footnotes Realauction.com, LLC v. Grant Street Grp., Inc., 82 So. 3d 1056, omitted), that "la] mere possibilityof... causation is not 1059 (Fla. 4th DCA 2011) ("In light of the unrebutted direct enough; and when the rnatter remains one of pure speculation testimony offered by Realauction and the mere speculativetestimony or conjecture,or the probabilitiesare at best evenly balanced, offered by Grant Street,it was unreasonable for the court or jury to it becomes the duty of the court to direct a verdict for the 'infer' that the negotiations were terminated because of the defendant." See Palmas Y Bambu, S.A. v. E.I. Dupont De Realauction email. See Kam Seafood Co. v. State, 496 So. 2d 219 (Fla. 1st DCA 1986) (reversingtrial judge's ruling which was based on an inference that was unreasonable because it contradicted clear principlethat a fact cannot be established by circumstantial evidence direct evidence).");Alan & Alan, Inc. v. Gulfstream Car Wash, Inc., which is perfectlyconsistent with direct,uncontradicted, reasonable 385 So. 2d 121, 123 (Fla. 3d DCA 1980) ("It is a well-settled and unimpeached testimony that the fact does not exist."). Page 3 of 4 98 So. 3d 1198, *1202; 2012 Fla. App. LEXIS 15239, **7 Nemours & Co., 881 So. 2d 565, 569 (Fla. 3d DCA 2004) therefore, of no evidentiaryvalue whatsoever."); see, e.g., (affirming directed verdict in part "because the nurseries Cedars Med. Ctr.,Inc. v. Ravelo, 738 So. 2d 362,369 (Fla.3d failed to establish causation"). DCA 1999) ("[W]ithout [**10] a predicate for the opinion which Ravelo sought to elicit,the trial court correctlyruled 2. The plaintiffsreliance on her engineering expert is that the expert'sopinion could not be put before the jury."); likewise misplaced. His testimony was arguably sufficient as Rodriguez v. Pino, 634 So. 2d 681, 686 (Fla. 3d DCA 1994) to whether the steps were properly constructed, see, e.g., ("It is clear, then, that Idoctors'] opinions regarding Mrs. Millar v. Tropical Gables Corp., 99 So. 2d 589,590 (Fla.3d Pino's competency amount to mere speculation.Expert DCA 1958) (concluding expert's"testimony would be helpful testimony of this kind may not be given weight."). in order to determine whether the premises were constructed and maintained [**8] in accordance with reasonably safe 3. Finally,the appelleepoints to the obviously hearsay (but construction and engineering standards"), and, although with unobjected to) contents of a treatingphysician'sreport in the less certainty,whether those defects could be deemed the hospitalrecords apparently referringto the now deceased's legalcause of Mr. Gonzalez's otherwise unexplained falling account of the accident: upon and down the steps. See Wong v. Crown Equip. Corp., 676 So. 2d This 981, 983 is an (Fla. 3d DCA 1996) (Schwartz, J. 86-year-old male who was walking off the bus with his wife and then, after the third step, he caught the dissenting)("In my opinion,it is clear that these undisputed facts edge of his foot and was unable to get his balance, falling give rise to an eminently reasonable inference that he with severe pain and discomfort in his left hip. Ie.s.] fell from the equipment at least partlybecause of the absence of those safetydevices."); Majeske v. Palm Beach Kennel Even puttingaside the fact that no findingmay be based even Club, 117 So. 2d 531, 533 (Fla. 2d DCA 1959) ("IT]he on unchallenged hearsay alone, see Rothe v. State, 76 So. 3d question of whether Idefendanfs] negligence was the 1010, 1011 (Fla. 1st DCA 2011) ("[A] court may not relyonly proximate cause of the plaintiffsinjury could be proven as on hearsay evidence to find a violation of community conclusivelyby circumstantial as by parolevidence.");but see control."); Perry v. Bradshaw, 43 So. 3d 180, 181 (Fla. 4th FFong, 676 So. 2d at 983 ("[N]o evidence exists to sustain DCA 2010) ("IT]he trial court erred in relyingon nothing but plaintiffsburden as to how the accident happened. In the inadmissible hearsay."); [ '11] Velilla v. Williams Island, absence of this evidence, plaintiffscause of action must 705 So. 2d 1044, 1045 (Fla.3d DCA 1998) (rejectingfinding fail."). His testimony on the key issue of causation, however, "based upon pure hearsay which is directlycontrary to the was decidedly not. He stated as follows: only direct testimony on the point"),this evidence is also 1VIy opinion is there's a high engineering probabilitythat markedly deficient. This is because while the report says that this was the cause of such a misstep. As long as that the accident occurred as he was walking oy the bus, the condition [**9] existed, ifs a dangerous condition and account was not only contrary to the established historical facts, but to the showing the plaintiff herself attempted to and the likelycause ofmissteps. It is obvious that this testimony was not only well beyond the was required to make: that the accident occurred as Mr. witness's supposed expel-tisebut totally"conclusory ill nature Gonzalez was going allclfell down the steps as a result of their defective condition. and... unsupported by any discernible, factually-basedchain of underlying reasoning." Div. of Admin. v. Samter, 393 So. IV 2d 1142, 1145 (Fla. 3d DCA 1981) (concluding "no weight may be accorded" such testimony).As Arkin Construction All of this was confirmed by a partialsummary judgment Co. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957), explains: granted in the hospital'sfavor some eight months before trial, It is elementary that the conclusion or opinion of an in which the trial court correctlyconcluded: expert witness based on facts or inferences not supported The Court makes the following findings of fact: 1) by the evidence in a cause has no evidential value. It is Decedent was 86 years of age at the time of fall; 2) equally well settled that the basis for a conclusion cannot Decedent had a historyof 2 priorfalls;3) Decedent had be deduced or inferred from the conclusion itself. The prior complaints of dizziness; 4) in the ER the record opinion of the expert cannot constitute proof of the reflected that the nurse noted that the Decedent fell existence of the facts necessary to the support of the within the last 6 opinion. months; 5) at time of incident Decedent and his wife were on their way to the bus after the wife's See Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050, 1056 appointment; 6) Mrs. Gonzalez was not looking at her (Fla. 3d DCA 2009) ("IT]he 'expert'testimony in this case husband [**121 at the time he fell, as she was not [*1203] findling]no factual support in the record and [was], looking towards him [e.s.];7) Mrs. Gonzalez does not Page 4 of 4 98 So. 3d 1198, *1203; 2012 Fla. App. LEXIS 15239, **12 know why the Decedent fell;8) Decedent did not tell Mrs. Gonzalez how he fell,he didn't say anything; 9) Decedent fell right in front of the bus; 10) Mr. Manzo End of Document saw Decedent approach the bus before he fell;11) Mr. Manzo does not recall the Decedent on the steps, he recalled that he fell a little after the steps; 12) Decedent fell between the steps and the bus. Notwithstanding these findings,however, the court gave Mrs. Gonzalez the opportunity to prove her claim to a jury, concluding "[tlheonly issue for the jury is whether the steps or some other factor caused the Decedent's fall." She did not carry that burden. Instead, Mrs. Gonzalez failed to provide evidence from which a jury could reasonably conclude that, more likely than not, the hospital steps were a substantial factor in bringing about her husband's fall. As Gooding, 445 So. 2d at 1018, states: [*1204] In negligence actions Florida courts follow the more likelythan not standard of causation and require proof that the negligence probably caused the plaintiffs injury.See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling,366 So. 2d 777 (Fla.2d DCA 1978), [**13] cert. denied, 374 So. 2d 99 (Fla.1979); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So. 2d 710 (Fla. 1978). Prosser exploredthis standard of proof as follows: On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general,has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in at 1145; Arkin Constr. Co., 99 So. 2d at 561; Trumbull Ins. Co., 2 bringing about the result. So. 3d at 1056. Prosser, Law of Torts § 41 (4th Ed. 1971) (footnotes omitted). Second, the trial court erred in admitting evidence of a prior slipand See Claire's Boutiques v. Locastro, 85 So. 3d 1192, 1195 (Fla. fall at the scene which was not similar to the one in question here. 4th DCA 2012); accord Fetterman & Assocs., P.A. v. That ruling was made as as a purported "sallction" for an alleged Friedrich, 69 So. 3d 965,968 (Fla. 4th DCA 2011); Murphy discovery violation by the defendant. We have severe doubts as to v. Sarasota Ostrich Fann/Ranch, Inc., 875 So. 2d 767, 769 whether a harmful violation occurred at all,see Mercer v. Raine, 443 (Fla. 2d DCA 2004); Prom v. Graham, 788 So. 2d 393, 396 So. 2d 944, 946 (Fla. 1983), but even if it did, there was no justification--and we have found no authority to support-the (Fla. 5th DCA 2001); see also Wroy v. N. Miami Med. Ctr., admission of concededly otherwise inadmissible testimony, such as Ltd., 937 So. 2d 1116, 1117 (Fla.3d DCA 2006). this to pollutethe fair detennination of issues before the jury. Thus, the punishment was way out of proportion to the alleged offense. See The judgment under review is therefore reversed for entry of Gen. Motors Corp. v. Porritt,891 So. 2d 1056, 1059 (Fla. 2d DCA judgment in the hospital'sfavor.4 2004) ("'[A]judge cannot simply 'use his discretion to decide that despite a plain lack of substantial similarityin conditions he will, nevertheless,admit the evidence.' State v. Arroyo, 422 So.2d 50,53 4 In the interests of adjudicating the substantial issues presented to (Fla. 3d DCA 1982) [**15] (quoting Love v. State, 457 P. 2d 622, us, we also find that, for two [**14]reasons, a new trial would be 628 (Alaska 1969))."); see also Ford Motor Co. v. Hall-Edwards, required even if a directed verdict is not. 971 So. 2d 854, 860 (Fla.3d DCA 2007) (holding that the trial court abused its discretion in admitting evidence of past accidents where a First,the trial court erroneously admitted the unsupported expert substantial similaritybetween the accident at issue and the past testimony to which we have already referred. See Samter, 393 So. 2d accidents had not been established). Gooding v. University Hospital Bldg., Inc. Supreme Court of Florida January 19, 1984 No. 62,828 Reporter 445 So. 2d 1015 *; 1984 Fla. LEXIS 2545 ** certified the following questions: EMILY GOODING, as personal representativeof the Estate 1. WHETHER PLAINTIFF IN A WRONGFUL of T. Hagood Gooding, deceased, Petitioner, v. DEATH ACTION MUST PROVE THAT MORE UNIVERSITY HOSPITAL BUILDING, INC., d/Wa MEMORIAL LIKELY THAN NOT THE DEATH WAS CAUSED HOSPITAL OF JACKSONVILLE, etc., BY DEFENDANT'S NEGLIGENCE. Respondent 2. WHETHER A THEORY OF RECOVERY FOR LOSS OF A CHANCE TO SURVIVE PREDICATED Subsequent History: [**1] Rehearing Denied March 22, UPON ALLEGED MEDICAL MALPRACTICE IS 1984. ACTIONABLE IN FLORIDA; AND, IF SO, (A) WHETHER THE TRIAL COURT PROPERLY Prior History: Applicationfor Review of the Decision of the INSTRUCTED ON SAME, AND (B) WHAT IS THE District Court of Appeal - Certified Great Public Importance. APPROPRIATE MEASURE OF DAMAGES? First District - Case No. VV-93. Id. at 1115. We have jurisdictionunder article V, section Counsel: Richard W. Ervin, Brian S. Duffy and Robert King 3(b)(4) of the Florida Constitution. We answer the first High, Jr.,of Ervin, Varn, Jacobs, Odom & Kitchen, question in the affirmative, the second question in the Tallahassee, Florida; and V. James Facciolo of Searcy & negative,and approve the decision under review. Facciolo, Jacksonville, Florida, for Petitioner. Bruce On S. Bullock and Robert M. Sharp of Bullock, Sharp, the afternoon of October 14, 1976 T. Hagood Gooding Childs, Mickler & Cohen, Jacksonville, Florida, for suffered lower abdominal pain and fainted at home. Mr. Respondent. Gooding's wife called the office of Mr. Gooding's gastroenterologist, Dr. Borland, to inform Dr. Borland of Larry Klein, West Palm Beach, Florida, for Academy of these symptoms. Mr. Gooding was transported to the Florida Trial Lawyers, Amicus Curiae. emergency room of Memorial Hospital of Jacksonville. The Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg,Eaton, emergency room staff failed to take a historyor to examine Meadow & Olin, Miami, Florida, for Dade County Trial Mr. Gooding in the belief that Dr. Borland, who was in the Lawyers Association, Amicus Curiae. hospitaland aware that Mr. [**3] Gooding was coming to the emergency room, would arrive shortly. Dr. Borland did James E. Cobb and Jack W. Shaw, Jr. of Mathews, Osborne, not respond to repeated paging. Mr. Gooding complained of McNatt, Gobelman & Cobb, Jacksonville, Florida; and John increasing abdominal pain and asked to use a bedpan. Soon E. Thrasher, Jacksonville, Florida, for Florida Medical after strainingon the bedpan, Mr. Gooding could not catch his Association, Amicus Curiae. breath. Dr. Borland arrived in the emergency room when Mr. Judges: McDonald, J. Alderman, C.J., Boyd, Overton and Gooding went into cardiac arrest. Mr. Gooding died about forty-five minutes after arrivingat the hospital.The autopsy Shaw, JJ.,concur. Adkins, J.,dissents. revealed that he died from a ruptured abdominal aortic Opinion by: McDONALD aneurysm which caused massive internal bleeding. Emily Gooding, personal representativeof Mr. Gooding's Opinion estate, brought a wrongful death action against the hospital allegingnegligence by the emergency room staff in not taking an adequate history,in failingto physically examine Mr. [*1016] This case is before us to review a district court Gooding, and in not ordering the laboratory tests necessary to decision, UniversityHospital Building Inc. v. Gooding [**2] diagnose and treat Mr. Gooding's abdominal aneurysm before 419 So.2d 1111 , (Fla. [*1017] 1st DCA 1982), which he Med out and went into cardiac arrest. Mrs. Gooding's Page 2 of 4 445 So. 2d 1015, *1017; 1984 Fla. LEXIS 2545, **3 expert witness, Dr. Charles Bailey, a cardiologist, testified than not standard of causation and require proof that the that the inaction of the emergency room staff violated negligence probably caused the plaintiffs injury. See Tampa accepted medical standards. Dr. Bailey, however, failed to Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); testify that immediate diagnosis and surgery more Greene v. Flewelling,366 So.2d 777 (Fla. 2d DCA 1978), likely[**4] than not would have enabled Mr. Gooding to cert. denied, 374 So.2d 99 (Fla.1979); Bryant v. Jax Liquors, survive. Even so, the trial court denied the hospital'smotion 352 So.2d 542 (Fla. 1 st DCA 1977), cert. denied, 365 So.2d for directed verdict on causation. In addition to the standard 710 (Fla. 1978). Prosser explored this standard of proof as jury instruction on negligence and over the hospital's follows: objection, the trial court instructed the jury that they could On the issue of the fact of causation, as on other issues find for Gooding if the hospitaldestroyed Mr. Gooding's essential to his cause of action for negligence, the chance to survive. 1 The jury found the hospitalliable and plaintiff, in general,has the burden of proof. He must awarded $300,000 in compensatory damages to Gooding's introduce evidence which affords a reasonable basis for estate. the conclusion that it is more likelythan not that the [**5] The hospitalappealed. The district court reversed on conduct of the defendant was a substantial factor in the grounds that the trial court should have directed a verdict bringing about the result. A mere possibilityof such in favor of the hospital because Mr. Gooding's chances of causation is not enough; and when the matter remains survival under the best of conditions were no more than even. one of pure speculationor conjecture,or the probabilities The plaintiff,therefore, could not meet the more likely are at best evenly balanced, it becomes [**7] the duty of [*1018] than not test for causation. The district court the court to direct a verdict for the defendant. certified the questions above and recognized the apparent conflict between this decision and the decisions of the third Prosser, Law qfTorts § 41 (4th Ed. 1971) (footnotes omitted). and fourth districts in Hernandez v. Clinica Pasteur, Inc.,293 Mrs. Gooding first contends that the estate presented So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352 sufficient expert testimony for a jury to find the hospital's So.2d 1200 (Fla.4th DCA 1977). negligence more likely than not constituted a substantial factor in Mr. Gooding's death. She claims that the district To prevail in a medical malpractice case a plaintiffmust court impermissibly reweighed the evidence and substituted establish the following:the standard of care owed by the defendant, the defendant's breach of the standard of care, and its own judgment in place of the jury verdict. This is not so. Our review of the evidence convinces us that the that said breach testimony proximately caused the damages claimed. Wale v. Barnes, 278 So.2d 601, 603 (Fla. 1973). In this case established a no better than even chance for Mr. Gooding to survive, even had there been an immediate diagnosis of the Dr. Bailefs testimony established the standard of care and the aneurysm and emergency surgery. Therefore, a jury could not hospital'sbreach of that standard when its emergency room reasonably find that but for the negligent failure to properly staff failed to diagnose and treat Mr. Gooding. The critical diagnose and treat Mr. Gooding he would not have died. issue here is whether the district court correctlydecided that the hospital[**6] was entitled to a directed verdict because Mrs. Gooding also contends that Florida courts have the plaintifffailed to prove causation. We hold that it did and recognized a cause of action for loss of a chance to survive, approve the decision of the district court. even where the patienfs chances of survival were evenly In balanced or less than negligence actions Florida courts follow the more likely likelyin decisions of the third and fourth district courts of appeal in Hernandez v. Clinica Pasteur, Inc. and Dawson v. Weems. In Hernandez [**8] the wrongful 1 The actual causation instructions given are as follows: death action was based upon the defendanfs failure to diagnose and treat a heart condition when prompt diagnosis "Negligence is a legalcause of death and damages if it directly and treatment would have given the patienta better chance to and in natural and continuous sequence produces or contributes live. The district court reversed a directed verdict in favor of substantiallyto producing such death, so that it can reasonably the defendants, on the grounds that the plaintiffintroduced be said that,but for the negligence, the death would not have sufficient evidence to create a jury question on causation. occurred. Ifyou find that Hagood Gooding had a significant chance of survival and ifyoufind that negligence on the part of The issue of proximate cause was as to whether the defendant, its agents or servants, destroyed Mr. Gooding's appellees'malpractice contributed to the cause of death. chances for survival, then the negligence of that defendant or In this connection, the testimony that appellant's defendants -- that defendant is a legal cause of injury". decedent would have had a better chance to survive if he (Emphasis added.) In our view the trial judge erred in adding had received prompt medical attention was sufficient to this change to the standard jury charges on legalcause. Page 3 of 4 445 So. 2d 1015, *1018; 1984 Fla. LEXIS 2545, **8 form a basis for the submission of the issue to the jury. furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees 293 So.2d at 750. In Dawson v. Weems the fourth district fit to find cause in fact. cited Hernandez to support [*1019] a holding that a jury could properly find that a hospitalcaused a patient'sdeath by giving him bank blood instead of the fresh blood requested, thereby deprivingthe patientof his "best chance" to survive, Id. at 272, 392 A.2d at 1288 (footnote omitted). The plaintiff notwithstanding the plaintiffsfailure to prove this deprivation in Hamd also [**11] met the more likelythan not standard either contributed to the patienfs death or made his survival with expert testimony that the patienthad a seventy-five unlikely. 352 So.2d at 1203. These [**9] cases suggest a percent chance of recovery with prompt treatment. Id. Other standard we cannot accept. jurisdictionshave allowed recovery even where the chance of survival was less than even. See James v. United States, 483 Neither Hernandez nor Dawson contains any reasoning or F. Supp. 581 (hI.D.Cal. 1980) (negligent diagnosis which authority to support a rule relaxing the more likelythan not destroys even the smallest chance to prolong life or reduce standard of causation in medical malpractice actions although suffering may be actionable); Kallenberg v. Beth Israel they do hold that a plaintiff may go to the jury on proximate Hospital, 45 A.D.2d 177, 357 N.Y.S.2d 508 (hI.Y.App.Div. cause merely by showing that the defendant decreased the 1974), affirmed, 31 N.Y.2d 719, 374 N.Y.S.2d 615, 337 chances for survival, no matter how small. Those cases are N.E.2d 128 (1975) *roximate cause is a jury questionwhere antithetical to our concept of proximate cause and are evidence indicates that the patient had a twenty to forty disapproved. percent chance of survival with proper treatment); Herskovits There is some authorityfor the loss of a chance to survive v. Group Health Cooperative, 99 Wash.2d 609,664 P.2d 474 tlleoryfrom otller jurisdictions. The reasoning bellmd this (1983) (negligentdiagnosisthat recluced a patiellt's chance of theory was perhaps best stated in Hicks v. United States, 368 survival from thirty-nineto twenty-five percent created jury F.2d 626, 632 (4th Cir. 1966) as follows: question on proximate cause). When a defendant's negligent action or inaction has Relaxing the causation requirement might correct a perceived unfaimess to some plaintiffswho could prove the possibility effectivelyterminated a person's chance of survival, it does not that the medical lie in the defendant's mouth to raise conjectures malpractice caused an injurybut could not as to the measure of the chances that he has put beyond prove the probabilityof causation, but [**12] at the same the possibilityof realization. If there was any substantial time could create an injustice.Health care providers could find themselves possibility of survival and the defendant has destroyedit, defending cases simply because a patientfails he is answerable. Rarely is it possibleto demonstrate to to improve or where serious disease processes are not [*10201 arrested because another course of action could an absolute certainty what would have happened in circumstances tllat tlle wrongdoer [**10] did not allow possibly bring a better result. No other professional to come to pass. The law does not in the existing malpracticedefendant carries this burden of liability without circumstances the require the plaintiffto show to a certainty requirement that plaintiffsprove the alleged negligence that the patient would have lived had she been probably rather than possibly caused the injury. See e.g Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975) hospitalizedand operatedon promptly. (plaintiff in legalmalpractice action must show that, but for the attorney'snegligence, the plaintiffhad a good cause of 2 action in the underlying suit). We cannot approve the The plaintiffin Hicks, however, also met the more likelythan substitution of such an obvious inequityfor a perceivedone. not test because expert testimony established that the patient "would have survived" with prompt diagnosisand surgery. Id. [**13] We believe the better course would be to retain the more In Hamd likely than not standard of causation in medical v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the Supreme Court of Pennsylvania approved the loss of a chance theory, citingHicks and section 323(a) of the Restatement 2 We have also held that a person convicted of crime is not entitled to (Second) of Torts (1965). The Hamil court held that relief from his conviction because of ineffective assistance of his once a plaintiffhas demonstrated that defendant's acts or counsel unless he could show that this deficient conduct likely omissions, in a situation to which Section 323(a) applies, affected the outcome of court proceedings. Knight v. State, 394 have increased the risk of harm to another, such evidence So.2d 997 (Fla.1981). Page 4 of 4 445 So. 2d 1015, *1020; 1984 Fla. LEXIS 2545, **13 malpracticeactions, as stated by the Supreme Court of Ohio other words, the plaintiffmust show that what was done or as follows: failed to be done probably would have affected the outcome. In an action for wrongful death, where medical In the case under review Mrs. Gooding failed to meet this test malpracticeis alleged as the proximate cause of death, by presenting evidence of a greater than even chance of and plaintiffsevidence indicates that a failure to survival for Mr. Gooding in the absence of negligence. The diagnose the injury prevented the patient from an district court properly ruled that the trial court should have opportunityto be operated on, which failure eliminated grantedthe hospital's motion for directed verdict. any chance of the patient'ssurvival, the issue of For the reasons stated proximate cause can be submitted to a jury only if there above, we approve the decision under review and answer the first certified is sufficient evidence showing that with proper question in the affirmative allcl retain the more diagnosis, treatrrlellt allcl surgery the patient probably likely tllail [*1021] not standard of causation in medical malpractice actions. We would have survived. answer the second questionon allowing recovery for the loss of a chance to survive in the negative. We leave the question of a proper instruction and measure of damages to a future Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio ease meeting the standard for recovery. St.2d 242, 253-54, 272 N.E.2d 97, 104 (1971). In Cooper, as It is so ordered. in the case at bar, the plaintiffsued a hospitaland other health care providers for failing to properly diagnose and treat a ALDERMAN, C.J., BOYD, OVERTON and SHAW, JJ., patient in the hospital'semergency room. The patient in Concur. Cooper later died of a skull fracture which caused intracranial pressure and hemorrhage. The plaintiffs expert witness ADKINS, J.,Dissents. testified that the patientwould have had about a fiftypercent chance of survival [**14] with surgery. The Cooper court affirmed a directed verdict for the defendants, rejecting the End of Document plaintiffsarguments for a lesser standard of causation in loss of a chance cases. Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself,are the subjectof litigation.The strong intuitive sense of humanity tends to emotionallydirect us toward a conclusion that in an action for wrongful death an injuredperson should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidationsthat such a rule would be so loose that it would produce more injustice than justice. Id., at 251-52, 272 N.E.2d at 103. Cooper has been followed in other jurisdictions,see Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct.App. 1980); Morgenroth v. Pacific Medical Center, Inc., 54 Cal.App.3d 521, 126 Cal.Rptr. 681 (Ct.App. 1976), and reflects the majority rule of jurisdictions consideringthis issue. We agree with the majority rule as enunciated in Cooper and hold that a plaintiff in a medical malpracticeaction must show more than a decreased chance r**1 [ '15] of survival because of a defendant's conduct. The plaintiffmust show that the injury more likelythan not resulted from the defendant's negligence in order to establish a jury question on proximate cause. In Silver Springs Moose Lodge No. 1199 v. Orman Court of Appeal of Florida, Fifth District January 14, 1994, Filed CASE Nos. 93-1390, 93-1985 Reporter 631 So. 2d 1119 *; 1994 Fla. App. LEXIS 77 **; 19 Fla. L. Weekly D 121 5:30 P.M. SILVER SPRINGS MOOSE LODGE NO. 1199, etc., Appellant, v. MARION ORMAN and KARL ORMAN, When they arrived at the "bingo entrance," Orman and Appellees. Hensley noticed that rainwater coming from an overhang had caused a pu(idleto accumulate outside the building.Patrons Subsequent History: [**1] Petition for Rehearing Denied had to step over the puddle to enter the bingo hall. Once February 16, 1994. Released for Publication March 7, 1994. inside, there were no signs or cones warning patrons that the floor was slipperyor wet. No workers were mopping up any Prior History: Appeal from the Circuit Court for Marion water or givingverbal warnings as to any danger.Also, there County, Thomas D. Sawaya, Judge. was no umbrella stand at the entrance, so bingo players carried their umbrellas with them across the hall to their seats. Disposition: REVERSED. Orman testified that she observed between 25 and 30 people Counsel: Matthew R. Danahy of Shofi, Smith, Hennen, already inside when she entered the hall. Hensley estimated Jenkins, Stanley& Gramovot, P.A., Tampa, for Appellant. the number to be between 35 and 40. Some were in the front Keith H. Lefevre and John Sanders of Jacobs & Goodman, of the hall purchasing admission tickets, while others were P.A., Altamonte Springs,for Appellees. along the side in the nonsmoking area or back, playing cards and socializing. Judges: GOSHORN, PETERSON, GRIFFIN Both Orman and Hensley testified that, as they walked into Opinion by: GOSHORN the hall, they did not notice any water on the floor inside the door. Orman and Hensley walked approximately 35 to 40 feet Opinion inside the bingo hall, made a right turn at the [**3] third or fourth row of tables and while rounding the next turn, Orman lost her footingand fell. Orman did not know how the liquid on which she fell got onto the floor, nor could she say how [*1119] GOSHORN, J. long it had been there before the fall. There were no smudges, streaks, tracks, or scuff marks which would indicate that it Silver Springs Moose Lodge No. 1199 (Moose Lodge) had been on the floor for a considerable amount oftime. appeals the final judgment [*1120] entered in favor of Marion and Karl Orman stemming from Marion Orman's slip The only other witness who testified as to the circumstances and fall accident that occurred inside the Moose Lodge. The surrounding the liquidwas Hensley. She stated that what she Moose Lodge argues that the trial court improperly submitted saw appeared to be "drops of water" and speculated that this case to the jury because the Ormans presented no possiblythey had dripped off of someone's umbrella or shoes. evidence that the slippery condition existed for a sufficient She did not see a puddle of water, nor did she see a trail from period of time to place the Moose Lodge on constructive the entrance leading toward the spot where Orman fell. No notice of its existence. We reverse. evidence was presentedas to the originof the water drops or the length of time they were on the floor before Orman's Orman and her sister,Jean Hensley, regularlyattended bingo accident occurred. games held at the Moose Lodge. Usually, they arrived at the bingo hall well before the startingtime in order to purchase Moose Lodge made a motion for a directed verdict at the bingo packets,have a cup of coffee, visit with their friends, close of the plaintiffscase and again at the close of all the and set up their boards. However, because it was rainingon evidence. The trial court reserved ruling on these motions this [**2] particularafternoon, they delayed their departure until the jury rendered its verdict. After the jury ruled in favor by approximately 15 minutes, and arrived between 5:25 and Page 2 of 4 of the Ormans, Moose Lodge made a motion for judgment there for a sufficient periodof time for the Moose Lodge to be notwithstanding the verdict [**4] (JNOV). Thereafter, the charged with constructive knowledge of a potentially court denied Moose Lodge's motions for directed verdict and dangerous condition. Thus, as in Marcotte, because there was JNOV. Moose Lodge appeals. no evidence of actual or constructive knowledge, the trial court should have granted the defendanfs motion for a We agree with the Moose Lodge tllat the Olmans failed to directed verdict. See also Wal-Mart Stores, Inc. v. King, 592 present any evidence demonstrating that Moose Lodge had So. 2d 705 (Fla. 5th DCA 1991), review denied, 602 So. 2d constructive notice 1 of the liquidon its floor priorto Orman's 942 (Fla. 1992) (holdingthat without some evidence of the accident The duty to learn of dangerous conditions in length of time the condition existed, liabilitycannot be premises liabilitycases was set forth by this court in Winn- deterrnined and summary judgment is proper). Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989). In Marcotte, a customer sued a supermarket after she We recognize that in appropriate cases, constructive slipped and fell on a slipperysubstance on the supermarkefs knowledge may be proven by circumstantial evidence. floor. The customer failed to produce any evidence that the Newalk v. Florida Supermarkets, Inc., 610 So. 2d 528, 529 supermarkefs agents or employees caused the substance to be (Fla.3rd DCA 1992); [**7] Teate v. Winn-Dixie Stores, Inc., on the floor or that they had actual or constructive knowledge 524 So. 2d 1060, 1061 (Fla. 3rd DCA 1988). In an attempt to of its existence before the incident occurred. This court, in apply this principle,the Ormans argue that the jury could discussing the legal duty commonly referred to as infer that the water had come from a drippingumbrella used "constructive notice," stated: by one of the patrons. Based on that inference, the jury could further infer that because the hall opened at 4:30 P.M. and 30 If a reasonable inspection would have revealed the or so patrons were already there when Onnan arrived, the dangerous condition in question,and if the dangerous water that inferentiallydripped from an umbrella could have condition existed prior [*1121] to the injury a length of been on the floor for one hour before Orman's fall. These time in excess of the time between reasonably spaced multiple inferences would then enable the jury to conclude inspections,then the trier of fact [**5] should find that that the dangerous condition existed for a sufficient length of the possessor neglected his duty and is liable for any time before the accident to charge IVIoose Lodge with injury legallycaused by that neglect. On the other halld, constructive notice thereof. if the injured invitee fails to prove these matters, and specifically fails to prove that the dangerous condition The Florida