The Fourth District Court of Appeals has reversed a $3.6 million damage award in the case of a pregnant woman killed while lounging poolside by a hotel, where she was struck by a drunk driver. Plaintiff, decedent’s husband and father of their unborn child, who also died, alleged the hotel was negligent in failing to create a barrier between the cabana and the road, which plaintiff alleged was known to be a hazardous condition.
Although the trial court decided the case in plaintiff’s favor, finding the hotel 15 percent at fault, the appellate court reversed, finding the trial court should have issued a directed verdict on the issue of negligence and also addressed a number of impermissible comments made by plaintiff’s attorney during both opening and closing arguments.
Though the outcome is disappointing for plaintiff, it’s important to highlight why the court decided the way it did, as it’s likely to affect future cases. While this case began with the irrefutable negligence of the drunk driver, this claim at its heart was one of premises liability. The assertion was there was a dangerous condition on the property, defendant hotel knew or should have known about it and yet failed to address it or warn patrons of it.
According to court records, plaintiff introduced evidence that included aerial photographs revealing that the road near the hotel curves, with motor vehicles traveling straight toward the cabana before the road curves right. Plaintiff alleged this created a foreseeable zone of risk, and an expert testified that placing palm trees as a barrier in front of the cabana would have averted the danger, and likely prevented this death. Plaintiff also presented evidence indicating drivers routinely sped on that road.
Defense, meanwhile, argued the crash of this nature was not reasonably foreseeable, and that the cabana complied with building codes and zoning regulations. Further, while there was evidence of speeding on that road, previous municipal studies indicated the threat was primarily to those who were crossing the road, rather than those who were in the cabana. Finally, in the nearly five decades that the road had been there, there had never before been an off-road traffic accident.
The driver in the case had a blood-alcohol concentration that was three times the legal limit. She was later sentenced to 15 years in prison and our Fort Lauderdale wrongful death attorneys understand she reached an undisclosed civil settlement with plaintiff.
The hotel did later erect a barrier to prevent similar accidents, but the appellate court said plaintiff’s argument failed firstly on the issue of “duty,” which is an essential component in any negligence case. Plaintiff had to establish that hotel had a duty of care to protect its patrons from a dangerous condition that it knew or should have known on its premises. The appellate court ruled that this curve on this particular road with a 25-mph speed limit was not a dangerous condition giving rise to duty with respect to those inside the cabana. Further, the lack of accident history at the site bolstered the defense claim that there did not exist a dangerous condition.
The court cited the 1987 decision in Florida Power & Light v. Macias, wherein the 3rd District Court of Appeals held some accidents are too unusual or extraordinary to be reasonably foreseeable, and determined this incident fell into that category.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Las Olas Holding Co. v. Demella, July 19, 2017, Florida’s Fourth District Court of Appeal
More Blog Entries:
Dangerous Property in Florida Garners Lawmaker Attention, July 17, 2017, Wrongful Death Lawyer Blog