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Pembroke Lakes Mall Ltd. v. McGruder
Citations: 137 So. 3d 418; 2014 WL 714706; 2014 Fla. App. LEXIS 2578Docket: No. 4D11-4005
Court: District Court of Appeal of Florida; February 25, 2014; Florida; State Appellate Court
Pembroke Lakes Mall Ltd. and Millard Mall Services, LLC appeal a final judgment of $269,049.50 awarded to June McGruder after a slip and fall incident. They raise four issues: (1) the trial court's denial of their motion for directed verdict; (2) the court's refusal to apply section 768.0755, Florida Statutes (2010), retroactively; (3) the denial of a motion for mistrial; and (4) the denial of a post-verdict motion to conduct juror interviews. McGruder cross-appeals, asserting error in the trial court's refusal to hold Pembroke Lakes jointly and severally liable for the jury's findings of negligence against Millard. The court upheld the trial court’s denial of the directed verdict and the mistrial motion, affirmed the decision against retroactive application of section 768.0755, and certified conflict with the Third District on that issue. However, the court reversed the denial of juror interviews and the cross-appeal, remanding the case to allow interviews. In 2008, McGruder fell at the mall owned by Pembroke Lakes, which had contracted Millard for maintenance. She sued for negligence, alleging failure to warn about a slippery substance and inadequate maintenance. Before trial, Pembroke Lakes and Millard sought to apply the 2010 statute retroactively, but the court ruled that the 2008 statute would govern. The jury found both defendants negligent, assigning equal liability and awarding damages for McGruder's medical expenses and suffering, while concluding she was not comparatively negligent. The defendants contested the verdict on several grounds, including the lack of evidence for knowledge of the spill and the appropriateness of the applied statutes. Pembroke Lakes and Millard sought juror interviews, claiming certain jurors failed to disclose prior litigation involvement. Records revealed that juror Angel did not disclose four eviction and small claims cases, juror Rhonda omitted a 1991 civil case as a defendant, juror Jorge failed to disclose various legal matters including personal injury protection and domestic violence cases, and juror Audrey did not disclose her role as a defendant in civil and small claims cases from 2008 and 1998, respectively. The trial court denied their post-verdict motion without a hearing. McGruder moved for Pembroke Lakes to be jointly and severally liable for Millard's negligence, asserting Pembroke Lakes had a non-delegable duty of care and could not minimize its liability through a contract with Millard for mall maintenance. The court denied this motion and evenly split the verdict, requiring Pembroke Lakes and Millard to pay McGruder $134,524.75 each. Pembroke Lakes appealed the denial of its post-verdict motion. The appellate court affirmed the trial court’s decisions on the directed verdict and mistrial. The document also addresses the retroactive application of section 768.0755 of the Florida Statutes, noting that whether a statute applies retroactively is a legal question reviewed de novo. It outlines that all premises owners owe a duty of reasonable care to maintain safe conditions for invitees. Prior to 2001, slip and fall plaintiffs had to prove the owner's knowledge of a dangerous condition. The Florida Supreme Court's 2001 ruling established a rebuttable presumption of negligence when a transitory foreign substance caused a fall, shifting the burden to the defendant to prove reasonable care. In response to this ruling, the Florida Legislature enacted section 768.0710 in 2002, defining the duty of care owed by those in possession of business premises regarding transitory foreign substances. In civil negligence actions related to loss, injury, or damage to business invitees resulting from transitory foreign objects on business premises, the claimant must prove that: 1) The business premises' owner or controller owed a duty to the claimant; 2) They acted negligently by failing to exercise reasonable care in maintenance, inspection, repair, or warning regarding the premises; and 3) Their negligence was a legal cause of the loss, injury, or damage, with no requirement to prove actual or constructive notice of the foreign object. This statute, 768.0710, Fla. Stat. 2008, removed the burden-shifting from the Owens decision, reinstating the plaintiff's burden of proving negligence while maintaining the absence of a notice requirement. In 2010, the statute was repealed and replaced with section 768.0755, which states that a person injured by a transitory foreign substance must prove the business had actual or constructive knowledge of the hazardous condition. Constructive knowledge can be established through circumstantial evidence showing the condition existed long enough to have been noticed or that it was foreseeable. The new statute does not alter the common law duty of care owed by business owners and significantly changes the notice requirement, now mandating that plaintiffs must prove knowledge of the dangerous condition. The applicability of section 768.0755 retroactively was examined in Kenz v. Miami-Dade County, where the Third District Court concluded it applies retroactively. However, the author disagrees with this conclusion, referencing the Florida Supreme Court's two-prong test for retroactive application, which requires clear legislative intent and consideration of constitutional principles. Legislative intent regarding the retroactive application of section 768.0755 is absent, indicating the statute was not meant to apply retroactively. Procedural and remedial statutes, however, can be applied to pending cases to fulfill legislative intent, as established in prior Florida case law. The distinction between substantive and procedural laws is critical; substantive laws define rights and duties, while procedural laws dictate how those rights and duties are enforced. Retroactive application raises constitutional issues, particularly if it impacts vested rights or imposes new obligations. A cause of action that has accrued is deemed a vested property right, which cannot be retroactively negated. The Florida Supreme Court has previously ruled against retroactive application if it would abolish existing rights, as seen in the American Optical case related to asbestos exposure claims. The Third District Court analyzed section 768.0755 and concluded that it does not change the prima facie case for negligence claims. Thus, a plaintiff with an accrued cause of action under the previous statute retains that cause under the new statute, with the requirement of actual or constructive knowledge being an evidentiary matter rather than a new element of the case. The Kenz court's conclusion is contested, as the 2010 statute, section 768.0755, reinstates the knowledge requirement for slip and fall claims, altering plaintiffs' substantive rights. The 2002 statute (section 768.0710) did not require proof of actual or constructive notice of a transitory foreign object, allowing claims based solely on negligence in maintenance or operation. In contrast, the 2010 statute mandates that plaintiffs prove the business had knowledge of the dangerous condition, effectively blocking claims that could have succeeded under the previous law. The retroactive application of section 768.0755 would eliminate the causes of action for plaintiffs injured prior to the statute's enactment, which is constitutionally impermissible. Consequently, the court affirms the trial court's decision to apply the 2002 statute and certifies conflict with the Kenz decision. Regarding the trial court's denial of a motion for post-verdict juror interviews, the standard of review is abuse of discretion. Such interviews are rarely permitted to protect the jury's sanctity and privacy, but may be allowed if there are reasonable grounds to suspect material fact concealment. However, allegations must not be based on mere speculation; they must provide a credible basis for the need to conduct juror interviews. In Rodgers v. After School Programs, Inc., the court emphasized that a request for post-trial juror interviews, based on alleged nondisclosure during voir dire, must meet the three-part De La Rosa test. This test requires the moving party to establish: 1) the concealed information was relevant and material to jury service; 2) the juror concealed this information during questioning; and 3) the nondisclosure was not due to the complaining party's lack of diligence. The case referenced involved jurors who failed to disclose prior litigation, prompting a motion for interviews supported by Westlaw printouts and court records. The trial court denied the motion, citing insufficient evidence linking the jurors to the records and the remoteness of the prior lawsuits. Upon appeal, the court reversed this decision, asserting that reasonable grounds existed to suspect juror misconduct. In a subsequent case, the court clarified that a motion for juror interviews could be denied if the allegations did not satisfy the De La Rosa criteria. In the current matter, the trial court was found to have abused its discretion by denying the motion for juror interviews, as there was adequate evidence suggesting potential nondisclosure of material information. Although post-verdict interviews are generally disfavored, they are warranted when there is sufficient proof of juror nondisclosure. McGruder argued that the allegations did not meet the De La Rosa test, reiterating the necessity of demonstrating entitlement to a new trial. The first prong of the De La Rosa test evaluates whether a juror's nondisclosure of prior litigation is relevant and material to the current case. While prior litigation is relevant, it is not automatically deemed material; materiality is assessed based on specific circumstances, including the potential influence on the moving party's ability to challenge the juror. Factors considered include the timing of the prior litigation, its nature and similarity to the current case, and the juror’s involvement. In this instance, prior litigation was potentially material due to a juror, Jorge, having been involved in a personal injury protection lawsuit relevant to the case at hand. Most of the undisclosed litigation occurred within four years of the trial, and while there were uncertainties about the jurors' specific involvement, county clerk records can support a motion to interview jurors. The court found it necessary to conduct juror interviews to preserve the integrity of the voir dire process, leading to a reversal of the denial of a new trial and a remand for further hearings. The second prong concerns juror concealment of information asked during jury selection, which is satisfied if a juror fails to truthfully respond when directly questioned. In this case, the jurors were clearly asked about any litigation involvement beyond divorces and all four denied such involvement. The third prong assesses whether the complaining party is at fault for failing to elicit the information; if a juror discloses prior litigation and the party does not inquire further, they cannot later request a new trial based on undisclosed details. Jurors who categorically deny prior litigation involvement do not require follow-up inquiries from counsel, as established in Taylor, 911 So.2d at 1270. The due diligence requirement does not mandate that the complaining party complete a records check before a verdict is rendered, per Roberts, 814 So.2d at 344. In this case, jurors clearly stated they had no prior litigation involvement, allowing the parties to depend on the integrity of the voir dire process. The trial court's decision to deny a motion for juror interviews without a hearing violated Florida Rule of Civil Procedure 1.431(h), which necessitates a hearing for such motions. Consequently, the appellate court reversed the denial of the motion to interview the jurors, except for juror Rhonda. Post-interviews, the trial court must apply the De La Rosa test to assess if a new trial is warranted due to undisclosed litigation history. Regarding the cross-appeal, McGruder challenged the trial court's refusal to hold Pembroke Lakes liable for Millard's negligence. Under Section 768.0710, business owners have a non-delegable duty to keep their premises safe for invitees, as affirmed in Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 876. An owner cannot evade liability by outsourcing maintenance responsibilities. If a jury assigns negligence to both the owner and a contracted party, the owner is jointly and severally liable. The court dismissed Pembroke Lakes' arguments against liability, including claims that McGruder did not plead a breach of non-delegable duty, that the jury made no agency findings, and that jury instructions improperly directed liability apportionment. The amended complaint adequately pleaded a breach of non-delegable duty against Pembroke Lakes. In Armiger, the plaintiff's slip and fall on a puddle in the defendant's business premises led to allegations of negligence, asserting the owner's failure to maintain a safe environment, knowledge of the puddle's existence, and inadequate inspection and cleaning of the area. An amended complaint included claims against an independent contractor, but retained the original claims against the owner. The Second District ruled that the amended complaint sufficiently alleged a breach of the owner's non-delegable duty of care under section 768.0710(1), affirming that further amendments were unnecessary. Similarly, McGruder's amended complaint met the elements for a cause of action for breach of Pembroke Lakes’ non-delegable duty of care. Pembroke Lakes incorrectly argued that an agency relationship was necessary for liability, conflating non-delegable duty with vicarious liability. The court clarified that breach of a non-delegable duty entails direct liability for failing to maintain premises safely, regardless of any cleaning contract. Pembroke Lakes' contention regarding jury instructions for apportioning negligence between it and Millard was rejected, as Pembroke Lakes remains directly liable for Millard's negligence without requiring Millard to be liable for Pembroke Lakes' negligence. The court affirmed the trial court's application of section 768.0710, certified a conflict with the Third District’s decision in Kenz, and directed that the De La Rosa test be applied to determine if a new trial is warranted. If not, liability against Pembroke Lakes for Millard’s negligence should be imposed. Other issues raised by Pembroke Lakes were affirmed without further comment. The decision was affirmed in part, reversed in part, and remanded. Sections 768.0710 and 768.0755 of the Florida Statutes address premises liability in slip and fall cases caused by foreign substances in businesses. Under Section 768.0710(2)(b), actual or constructive notice of the hazardous condition is not required for a claim. Conversely, Section 768.0755(1) mandates that the injured party must demonstrate that the business had actual or constructive knowledge of the dangerous condition and failed to act. The excerpt references a legal precedent that defines a remedial statute as one that alters or provides a remedy, with a remedy being the means to enforce a right or address an injury. Rhonda's previous litigation history includes being a defendant in a 1991 case; had her litigation history alone been the basis for the motion, the trial court's decision to deny it would not have constituted an abuse of discretion. The importance of honesty in jury selection is emphasized, as 'voir dire' translates to 'to speak the truth.' There is a call for re-evaluating how juror non-disclosure is managed in order to reduce the frequency of litigation and retrials, which negatively impact the judicial system.