Plaintiffs Not Barred from Proving Causation in Slip and Fall Case, Even With No Witnesses and No Memory of Fall Itself
February 01, 2022 —
David Hoynacki, Arezoo Jamshidi & Lawrence S. Zucker II - Haight Brown & Bonesteel LLPOn January 19, 2022, the California Court of Appeal, Second Appellate District (Los Angeles), held that a plaintiff is not barred as a matter of law from proving causation in a slip and fall case if there were no witnesses to the fall, and the plaintiff does not remember the fall itself. The Court of Appeal stated specifically that circumstantial evidence would permit a jury to make a “reasonable and probable inference” regarding contributing factors to a fall, even with no eye-witness evidence.
In
Kaney v. Mazza (BC619247, Jan. 19, 2022), plaintiff and appellant Lydia Kaney (Kaney), was visiting her sister in her rented home in September of 2014. At some point during the visit, the light in the bathroom at the top of the stairs stopped working—Kaney used the stairs, and fell. Kaney filed suit against her sister and the owner of the home alleging premises liability, negligence, and violation of the Americans with Disabilities Act (ADA). In her deposition, Kaney testified that she remembered going up to the bathroom, and then waking up on the floor in pain. She could not remember how she fell; she did not know if she had missed a step, or if she had slipped and fallen backwards. She speculated that a worn-out bath mat may have been the cause of the slip and fall because the rubber traction on the bath mat was worn away.
Reprinted courtesy of
David Hoynacki, Haight Brown & Bonesteel LLP,
Arezoo Jamshidi, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Hoynacki may be contacted at dhoynacki@hbblaw.com
Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Should CGL Insurer have Duty to Defend Insured During Chapter 558 Notice of Construction Defects Process???
September 01, 2016 —
David Adelstein – Florida Construction Legal UpdatesDoes a CGL insurer have a duty to defend its insured-contractor during Florida Statutes Chapter 558 notice of construction defects pre-suit process? This answer is currently undecided and will be up to the Florida Supreme Court to decide. (It is on appeal stemming from a federal district court saying that an insurer does not have a duty to defend its insured-contractor in the 558 process based on the definition of the word “suit” in the CGL policy.)
Why is this an important issue?
The 558 pre-suit notice of construction defects process is designed to facilitate an avenue for construction defect lawsuits to get resolved without having to file a lawsuit or, at least, have issues narrowed before a lawsuit needs to be filed. (Check here for a summary of the 558 process.) It requires pre-suit notifications so that implicated parties can become aware of the defects and have an opportunity to inspect the defects / damage, test the defects / damage, and respond to the notice of construction defects; it provides an avenue for beneficial pre-suit discovery. Through participating in the 558 process, the contractor and/or design professional (and those downstream from them) can: (i) offer to remedy the defect, (ii) settle the defect, whether through money or a combination of money and repairs, (iii) dispute the defect, or (iv) advise that available insurance proceeds will be determined by its liability insurer. See Fla. Stat. s. 558.004.
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David M. Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Structure of Champlain Towers North Appears Healthy
August 04, 2021 —
Nadine M. Post - Engineering News-RecordThere is good news for the residents of the occupied Champlain Towers North, the 12-story residential condominium in Surfside, Fla., located a short distance up Collins Avenue from its near-twin Champlain Towers South, which failed unexpectedly June 24. The unstable remaining wing of the Champlain Towers South concrete structure was imploded July 4, after the partial progressive collapse that killed at least 94 people and left another 22 still missing.
Reprinted courtesy of
Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com
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Arguing Cardinal Change is Different than Proving Cardinal Change
April 05, 2021 —
David Adelstein - Florida Construction Legal UpdatesThe cardinal change doctrine has become a popular doctrine for a contractor to argue under but remains an extremely difficult doctrine to support and prove. Arguing cardinal change is one thing. Proving cardinal change is entirely different. As shown below, this is a doctrine with its origins under federal government contract law with arguments extending outside of the federal government contract arena. For this reason, the cases referenced below are not federal government contract law cases, but are cases where the cardinal change doctrine has been argued (even though these cases cite to federal government contract law cases).
A party argues cardinal change to demonstrate that the other party (generally, the owner) materially breached the contract based on the cardinal change. In reality, a party argues cardinal change because they have cost overruns they are looking to recover and this doctrine may give them an argument to do so. But it is important to recognize the distinction between raising it as an argument and the expectation that this (difficult doctrine to prove) will carry the day.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Economic Loss Rule Bars Claims Against Manufacturer
November 02, 2020 —
David Adelstein - Florida Construction Legal UpdatesThe economic loss rule lives to bar a claim against a product manufacturer in a real estate transaction. In a products liability action, there needs to be personal injury or property damage, other than to the property itself, in order to recover economic damages. Otherwise, the economic loss rule will bar the recovery of such economic losses when the economic losses deal to the product itself. This is important to keep in mind in any product liability action against a manufacturer.
In a recent case, 2711 Hollywood Beach Condominium Assoc’n, Inc., v. TRG Holiday, Ltd., 45 Fla. L. Weekly D2179a (Fla. 3d DCA 2020), a condominium association purchased the condominium from the developer. Subsequently, it noticed leaks with the fire suppression system in the condominium and sued multiple parties for damages for repairs due to the leaks and the replacement of the fire suppression system. One of the parties sued in negligence and strict liability was a manufacturer of pipe fittings used in the fire suppression system. The manufacturer moved for summary judgment based on the economic loss rule and relying on the 1993 Florida Supreme Court opinion in Casa Clara Condominium Assoc’n v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla. 1993), holding “the economic loss rule limited a defendant’s tort liability for allegedly defective products to injuries caused to persons or damage caused to property other than the defective product itself.” 2711 Hollywood Beach Conominium Assoc’n, supra. The trial court agreed with the manufacturer and granted summary judgment. On appeal, the Third District affirmed based on the economic loss rule:
The Association bargained for, purchased and received a building; [the manufactuer’s] fittings were only a component of the FSS [fire suppression system], incorporated into the building. Applying the rule set forth in Casa Clara, the Association purchased a completed building from the developer. [The manufactuer’s] fittings were “an integral part of the finished product and, thus, did not injure ‘other’ property.” Injury to the building itself is not injury to “other” property because the product purchased by the Association was the building. See Casa Clara, 620 So. 2d at 1247. The economic loss rule therefore bars the Association’s recovery as to [the manufacturer] to the extent that it sought damages to replace the FSS [fire suppression system] and repair damage to the building.
2711 Hollywood Beach Conominium Assoc’n, supra (internal citations omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Coloradoans Deserve More Than Hyperbole and Rhetoric from Plaintiffs’ Attorneys; We Deserve Attainable Housing
January 09, 2015 —
David M. McLain – Colorado Construction LitigationAs the 2015 Colorado legislative session gets underway, the media attention and discussion regarding the lack of attainable housing, skyrocketing rental rates, and the ongoing state and local efforts to reverse these trends have risen to a dull roar. The hyperbole and rhetoric from those who would oppose any reforms has risen to cacophonous levels.
Among the most often quoted talking points from the opposition are that any changes to Colorado’s existing laws would strip homeowners of their right to seek redress for construction defects and that they would virtually insulate construction professionals from such claims. The long and the short of it is that if this year’s legislation looks anything like SB 220 from last year, nothing could be further from the truth. The two main provisions from SB 220 were: 1) protection of a construction professional’s ability to resolve construction defect claims through arbitration; and 2) requirement of informed consent of more than 50% of the owners within a common interest community before a construction defect action could begin. Neither of these changes would strip homeowners of any rights and they certainly would not insulate construction professionals from construction defect actions.
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David M. McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado
November 23, 2020 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogEarlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.” See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.
This significant ruling is at odds with a prior division’s broad statement, while considering a prescriptive easement claim, that “[i]n general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant’s claimed prescriptive period, the occupant interrupts the prescriptive use.” See Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006). Perhaps for that reason, Woodbridge II is currently pending certiorari review before the Colorado Supreme Court in a case that should provide some much-needed clarity on what constitutes “adverse use” in the context of a prescriptive easement. As we await the Colorado Supreme Court’s decision, I thought it worthwhile to provide a brief analysis of the Woodbridge II court’s deep dive into the nuances of “adverse use” in this field of Colorado law.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
Affirmed: Nationwide Acted in Bad Faith by Failing to Settle Within Limits
July 19, 2017 —
Bethany Barrese – Saxe Doernberger & Vita, P.C.The Eleventh Circuit recently affirmed that Nationwide acted in bad faith by refusing to settle a claim against its insured for the policy limits, exposing the policyholder to an excess verdict.1
The case arose out of a 2005 automobile accident where Seung Park, who was insured by Nationwide, struck and killed another driver, Stacey Camacho. Shortly after the accident, Ms. Camacho’s estate issued a time-limited demand for the full limits of the policy Nationwide issued to Mr. Park, $100,000, to settle the case. After the deadline to respond to the demand expired, Nationwide rejected the demand and made a counteroffer. A settlement could not be reached and a wrongful death suit was filed against Mr. Park, resulting in a massive jury verdict of $5.83 million.
Following the jury verdict, Mr. Park assigned his rights against Nationwide to Ms. Camacho’s estate, which then filed claims for negligence and bad faith failure to settle against Nationwide. The case was tried to a jury, which found in favor of the estate.
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Bethany Barrese, Saxe Doernberger & Vita, P.C.Ms. Barrese may be contacted at
blb@sdvlaw.com
