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FMG Law Blog Line

Posts Tagged ‘Florida’

Fourteen Seconds Plus Emergency Lights Equals Probable Cause To Arrest

Posted on: June 11th, 2018

By: Charles Reed

There is a saying that “nothing good ever happens after midnight.” Both City of Hollywood, Florida police officer Ronald Cannella and citizen Livingston Manners would become very familiar with this saying after the events of June 24, 2014. On that day, close to three in the morning, Officer Cannella patrolled a residential area of the city due to a series of recent thefts. Manners, a Hollywood resident, was sitting in his car on the side of the road before heading to work and, shortly after Cannella passed by him on patrol, Manners pulled out and made a turn. What happened after that is largely in dispute, but what is undisputed is that Cannella approached Manners’ vehicle with emergency equipment activated. Manners saw Cannella behind him with lights and siren activated and, instead of stopping his car, Manners drove another fourteen seconds – approximately one tenth of a mile – at a slow speed to reach a well-lit gas station where video surveillance was available. Manners testified that he did not immediately stop his vehicle because it was late at night in a very dark area and, as a large African-American male, he was in fear for his life. However, Manners’ actions captured by videotape thereafter appeared to contradict his purported fear as he argued with Cannella and actively grappled with Cannella as Cannella attempted to arrest him. It took five officers and two taser deployments over a period of three minutes to get Manners in handcuffs.

After Manners was acquitted of the criminal charges stemming from the incident, he sued Cannella and others. On the issue of probable cause, the Eleventh Circuit held in Manners v. Cannella, 2018 U.S. App. Lexis 15007 (June 4, 2018) that Cannella had probable cause to arrest Manners for fleeing or attempting to elude a law enforcement officer by driving “for three blocks, or one-tenth of a mile, or for 14.4 seconds after seeing Officer Cannella was behind him with the patrol car’s lights and sirens on.” Id. at *19. This probable cause was present even though Manners rolled down his windows and drove a slower rate of speed (25 miles per hour) before pulling over to the gas station. The Court analogized Manners’ conduct with previous Florida cases involving a ten mile-per-hour drive for five minutes and a one to two-mile drive after lights and sirens were present. Id. at 21-22. The Court shrugged off Manners’ concerns for his safety by filtering his flight through the doctrine of necessity under state law and further held “a generalized fear of police does not provide a legal basis to vitiate probable cause for the offense of flight.” Id. at 23-24.

The Eleventh Circuit’s analysis of this issue reflects the tension between the law and instructions sometimes provided to the general public when approached by law enforcement late at night. In some instances, especially where the citizen is approached by a person impersonating an officer, news reports will quote senior command staff recommending that citizens call 9-1-1 or travel to well-lit areas late at night if they are uncomfortable with emergency lights behind them.[1] On the other hand, should citizens follow these instructions, they risk arrest and prosecution for flight even if – as in this case – the duration of the travel is a tenth of a mile. For now, at least in the Eleventh Circuit, it appears that law enforcement officers may be justified in effecting an arrest in such situations and may not face civil liability for the exercise of their arrest powers.

If you have any questions or would like more information, please contact Charles Reed at [email protected].

[1] A snapshot of various news articles around the country concerning late night stops between citizens and law enforcement: Chicago Tribune, News4JAX, and South Miami.

A House of Cards: Stacking Inferences to Prove Liability

Posted on: May 10th, 2018

By: Melissa Santalone

A Florida appellate court recently reaffirmed Florida’s state law prohibition against stacking inferences in personal injury cases with a reversal of a $1.5 million verdict in a slip-and-fall case against Publix.  In Publix Super Markets, Inc. v. Bellaiche, 2018 Fla. App. LEXIS 4233 (March 28, 2018), the Third District Court of Appeal reversed a trial court’s denial of a directed verdict to Publix at the trial of a case involving slip-and-fall accident at a Miami-Dade County store, holding that proof of liability via the stacking of inferences is impermissible, in contrast to federal case law.

The plaintiff in the case, a 70-year-old woman, alleged she slipped and fell on water in an aisle at a Publix store that she did not observe before the fall.  After she fell, she testified she saw a Publix employee holding a mop nearby, but no evidence was offered that the mop was wet or that water from the mop ever made contact with the ground.  The manager of the store testified the employees at the store used dry rayon mops to clean the floors, and not pre-soaked cotton ones.  Video evidence also showed the only janitor on duty at the time, the only employee whose duty it was to mop the floors, was using a broom and dust pan just prior to the plaintiff’s fall.  The Third DCA noted in its decision that the plaintiff had the burden to prove that Publix either created the dangerous condition that caused her fall or had actual or constructive knowledge of it, an opportunity to correct it, and it failed to do so.  At trial, the plaintiff acknowledged she was not proceeding on a constructive knowledge theory, but on the theory that Publix created the dangerous condition or had actual knowledge of the water on the floor via its employee with the mop.  The jury sided with the plaintiff at trial and awarded her more than $1.5 million, and the trial court denied Publix’s motion for a directed verdict.  In Bellaiche, the Third DCA reversed the lower court’s denial of the motion for directed verdict.  The Third DCA held that “[a] jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.  If the only way that a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”

In other forums, however, the stacking or pyramiding of inferences is permissible, including in the courts of the Eleventh Circuit, the federal courts in Alabama, Georgia, and Florida.  In Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (1982), the Eleventh Circuit found that “[a]ccording to federal law there is no prohibition against pyramiding inferences; instead all inferences are permissible so long as they are reasonable.”  Moreover, in Daniels, the Eleventh Circuit further noted that a directed verdict is not required in instances where the jury may choose between allowable inferences including instances where the inference championed by the plaintiff is no more likely than other possible inferences.  The takeaway here is that litigants in personal injury cases must consider the inferences they or their opposition will ask a jury to draw and whether their chosen forum will allow the stacking of inferences to prove liability.  In some venues, like in Florida state courts, more concrete proof of liability is required.

If you have any questions or would like further information, please contact Melissa Santalone at [email protected].

Circuits Now Split Three Ways Over False Claims Act Limitations Period

Posted on: April 26th, 2018

By: Robyn Flegal

The Eleventh Circuit Court of Appeals (governing Georgia, Alabama, and Florida), recently held that the three-year statute of limitations for the False Claims Act (FCA) begins when the government learns of alleged violations of the FCA, rather than when a whistleblower/relator learns of alleged violations.  As we previously explained in the FMGBlogLine, the FCA allows whistleblowers to bring claims for violations on behalf of the government in return for a share any recovery.  In United States of America ex rel. Billy Joe Hunt v. Cochise Consultancy, Inc. d/b/a The Parsons Corporation, a former employee alleged that certain contractors defrauded the Department of Defense out of millions of dollars for work performed pursuant to a wartime contract in Iraq.  According to the Complaint, an Army Corps of Engineer officer forged contract documents after accepting bribes and gifts.  The United States declined to intervene in the lawsuit.

The United States District Court for the Northern District of Alabama dismissed the suit on the basis that Billy Joe Hunt (the employee) was outside of the three-year limitations period for FCA claims.  FCA claims must be filed (1) within six years after the violation occurred, or (2) within three years of the time the appropriate government body is made aware of the violation and within ten years of when the fraud occurred.  The Eleventh Circuit determined that this second, three-year limitations period applies even where the United States declines to intervene in a qui tam action.  Indeed, although the employee knew of the fraud more than three years before he filed suit—his claim was timely because he filed the suit within three years of disclosing the underlying facts to the United States officials.  Simply put, in the Eleventh Circuit, the limitations period begins to run when the relevant federal government official learns of the facts; when the whistleblower learns of the fraud is simply immaterial to the statute of limitations.

There is now a three-way circuit split in the Federal Courts of Appeals regarding the tolling deadlines for FCA claims.  In contrast to the Eleventh Circuit’s holding above, the Fourth, Fifth, and Tenth Circuits have ruled that the three-year limitations period does not apply to whistleblowers at all.  The Third and Ninth Circuits have held that the three-year period begins when the whistleblower learns of the fraud.  As there is a split in the circuits, this particular action could be ripe for a decision by the Supreme Court if the defendants petition for a writ of certiorari.

As such, we will continue to monitor developments in this area.  For questions please contact Michael Bruyere at [email protected], Robyn Flegal at [email protected], or Ali Sabzevari at [email protected]

Court Ruling Highlights Importance of Policy Language

Posted on: April 11th, 2018

By: America Vidana

In Mt. Hawley Insurance Co. v. Tactic Security Enforcement, Inc., No. 6:16-cv-01425 (M.D. FL. 2018), U.S. District Judge Paul Byron of the Middle District of Florida recently denied an insurance company’s motion for summary judgment, in which it relied on an exclusion to deny coverage to its policyholder. The policyholder and restaurant establishment, Que Rico La Casa Del Mofongo, had two negligence lawsuits filed against it for allegedly failing to prevent violent incidences from occurring on its premises.

The insurer denied coverage per an exclusion included in the policy prohibiting “operations involving bars, taverns, lounges, gentlemen’s clubs and nightclubs.” The Court, however, found that the insurer failed to clearly define the terms cited in the exclusion. It noted that the policyholder’s establishment was interchangeably referred to as a “restaurant,” and at other times as a “lounge.” Consequently, because the terms “bars, “taverns,” “lounges,” and “gentlemen’s clubs” were undefined, it deemed the entire exclusion as imprecise and inapplicable—unilaterally denying the insurer’s summary judgment.

The Court’s decision in Mt. Hawley significantly reinforces the principle that precise policy language is required before an insurer can deny coverage based on an exclusion. It also highlights the importance for a policyholder to read the entire policy to ensure there are no broad exclusions that could potentially bar coverage.

If you have any questions or would like more information, please contact America Vidana at [email protected].

Congress Steps Into Tip-Pooling Fight

Posted on: March 23rd, 2018

By: Timothy J. Holdsworth

We wrote previously about the background on the tip-pooling regulations and the DOL’s Notice of Proposed Rulemaking (“NPR”) that would allow tip-pooling arrangements that include employees who do not regularly and customarily receive tips under the Fair Labor Standards Act (“FLSA”). The DOL received a considerable number of comments on the NPR, some of which worried that the NPR would allow employers to keep their workers’ tips.

Buried in the spending bill Congress passed (pages 2025-2027 if you are dying to read it) is a rider that will affect the current U.S. Department of Labor (“DOL”) laws on tips. The bill proposes language that prohibits an employer, including managers and supervisors, from keeping tips received by employees. This prohibition would apply regardless of whether the employer takes the tip credit. The rider also would make employers liable to employees for any tips unlawfully kept by the employer.

If the bill is signed by President Trump, these may substantially affect any tip-pooling arrangements employers planned to enact under the NPR. It is also unclear if the DOL may try to revise the NPR in any way.

The provision would also subject employers to new liability under the FLSA. Just last year, the Eleventh Circuit (Alabama, Florida, and Georgia) in Malivuk v. Ameripark, LLC held that the FLSA does not authorize an employee to sue her employer solely for an employer allegedly withholding her tips when the employee does not allege that she received less than the minimum wage or less than what she was entitled to for overtime work. The rider creates a new cause of action solely for withheld tips.

If you have any questions about what these potential changes may mean for your business or would like more information on navigating wage and hour laws, please contact Tim Holdsworth at [email protected].