Wednesday, September 28, 2011

3d DCA Watch -- How Big Are Your Congeries?

Hi kids, we have a bunker-bustin' load of opinions to get through today, so swill your coffee excitedly just like the Robed Ones and let's dig in:

Flueras v. Royal Caribbean:

A "congeries of negligent acts" may render the Explorer of the Seas unseaworthy.

(I thought that was a curse word in Spanish?)

Harris v. Grunow:

Senior Judge Payne's new trial order is reversed, and jury verdict reinstated.

Judge Salter fees the heat:
The normally-cold record on appeal in this case reflects considerable heat. The parties were neighbors disputing civil liability for the consequences of repugnant environmental violations. The witnesses allegedly involved in the mangrove decimation had obvious reasons to prefer to be somewhere other than the courtroom.

The heat of the battle is also reflected in the strident findings warranting a new trial as submitted by counsel for Grunow and O.R. Golf and entered by the trial court. But applying even the strict standard we impose upon ourselves for the review of a trial court’s exercise of discretion in ordering a new trial, those findings are not supported by the record. The Harrises obtained a verdict without violating the order in limine regarding settlements, without engaging in prohibited impeachment, and without improper “empty chair” commentary regarding witnesses not called. Counsel for Grunow and O.R. Golf estimated that the jury took less than an hour to reach their verdict after a two week trial, and that is its own commentary on the weight of the evidence. The parties did not receive a perfect trial, but the record demonstrates unequivocally that they received a fair trial.
Two out of three ain't bad?

Public Health Trust v. Rolle:

Judge Shepherd pulls out his Palsgraf:
Based on Wallace, just days ago in Miami Dade County v. Rodriguez, No. 3D10-856, slip op. at 5 (Fla. 3d DCA Aug. 31, 2011), we clarified our own decisional law in this area, stating we “will no longer exercise our certiorari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated.” As Professor Prosser succinctly stated, “Duty is only a word with which we state our conclusion that there is or is not to be liability.” William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).
 Ahh yes, Rodriguez is already an instant classic!

Rey v. Philip Morris:

SJ in favor of Big Tobacco reversed in Engle-progeny case:
In this appeal, we are asked to review the trial court’s determination that summary judgment in favor of those three companies was also appropriate under Engle on the “civil conspiracy to fraudulently conceal” claim asserted by Mrs. Rey against all defendants. We reverse the final summary judgment in favor of the three tobacco companies as to that claim and only that claim (Count IV of the Amended Complaint), based on our reconciliation of the holdings by this Court and our Supreme Court in Engle.
Interesting cause of action -- is there still room for innovation in tobacco litigation?

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