VOLUME XVIII, NUMBER 6
June, 2006

CONFIDENTIALITY ORDERS AND FLORIDA 'S SUNSHINE IN LITIGATION ACT

In product liability lawsuits, manufacturers typically request a confidentiality order before disclosing any internal information which relates to a product's design, manufacturing, or reports of prior failures. The argument is that these are trade secrets, and thus privileged information. That is often true in certain instances, however, if a product is truly dangerous this prevents the general public from finding out about dangerous conditions and thus exposes the public to additional, potential, harm.

In order to remedy this problem, Florida enacted the Sunshine in Litigation Act. This act precludes a court from entering a confidentiality order which "has the purpose or effect of concealing a public hazard or any information concerning a public hazard." The law also prevents orders or judgments from being entered which have "the purpose or effect of concealing any information which may be useful to members of the public in protecting

themselves from injury which may result from the public hazard." F.S. §69.081. The statute requires a court to conduct a hearing on whether the information constitutes a public hazard before entering a confidentially order.

In a recent case, Goodyear was sued for damages allegedly caused by a defective tire. As part of the discovery process, the trial court entered a confidentiality order requiring Goodyear to disclose information to the injured plaintiff, but precluding the injured plaintiff (or her attorneys) from disclosing to the public what they learned. Without conducting a hearing, the court also found that any determination that the tires constituted a "public hazard" was premature until the jury reached a verdict.

The jury eventually returned a verdict finding that the tires were defective and awarding the plaintiff damages. Based upon the court's prior order, the plaintiff was now allowed to disclose the previously confidential information, because the verdict effectively determined that the tires constituted a public hazard. Not surprisingly, Goodyear sought to prevent disclosure of this information.

The appellate court rejected Goodyear's attempt. However, the appellate court did not specifically find that the tires constituted a public hazard, but rather held that Goodyear invited this problem by asking for the blanket confidentiality order without having the trial court initially conduct the hearing to determine whether the tires constituted a public hazard. Since Goodyear had not sought the specific hearing, and in fact benefited from the blanket confidentiality order for several years (until the end of trial), the appellate court refused to retroactively require the trial court to conduct the hearing. Therefore, the documents became public knowledge and were no longer subject to trade secret protection.

Mark A. Greenberg

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ANOTHER REASON NOT TO BE A BACKSEAT DRIVER

The First District Court of Appeal has held that an SUV passenger might be held liable for his failure to keep a proper lookout as the driver was backing up.

On July 4, 2002 Elenora Roos, the plaintiff, was a passenger on a motorcycle, and the defendant, Christopher Morrison was the rear passenger of Barret Eubanks' Chevrolet Tahoe. The Tahoe was stopped because traffic was blocked in front of it. The motorcycle was stopped a safe distance behind the Tahoe. After waiting for traffic to clear, Mr. Morrison told Mr. Eubanks that it was clear for him to back up the SUV. As Eubanks drove the Tahoe in reverse it crashed into the motorcycle. Ms. Roos was injured as a result of falling from the motorcycle.

Ms. Roos sued Mr. Morrison based on his alleged duty to warn the Tahoe's driver of the motorcycle's presence. After the trial court dismissed Ms. Roos' complaint with prejudice, she appealed to the First District. The First District determined that a legal duty can exist where a passenger undertakes a duty to determine whether it is safe for the driver to proceed and fails to use reasonable care in exercising that duty. Furthermore, the court determined that, "the allegations in Roos' amended complaint sufficiently established that Morrison undertook the duty of determining whether his driver's intended path of travel was clear," and held that the amended complaint should be allowed to proceed. Hence, the court reversed the trial court's decision to dismiss the amended complaint.

The First District interestingly acknowledges that the decision could result in a partial or complete shift of liability from an insured driver to an uninsured passenger. Thus, it certified the following question to the Florida Supreme Court as being one of great public importance: May a vehicular passenger be held liable to another vehicular passenger in circumstances where the potentially liable passenger was in a superior position to the driver of that passenger's vehicle to observe a potential hazard and gave affirmative advice to the driver which resulted in a collision with the other passenger?

Until the Supreme Court of Florida addresses this issue, this question will remain as something to watch out for.

Sarah M. Marks

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VOLUNTARY ASSUMPTION OF DUTY MAY IMPOSE LIABILITY AGAINST HOMEOWNER FOR DRUG OVERDOSE OF MINOR

In the wrongful death action of Horton v. Freeman , 31 FLW D208 ( Fla. 4 th DCA January 18, 2006), the Fourth District Court of Appeal reversed an order dismissing the plaintiff's fourth amended complaint, finding that the complaint sufficiently stated a cause of action as it set forth allegations of a voluntary assumption of duty in a case involving the drug overdose death of a minor.

In Horton , the plaintiff filed a wrongful death action for the death of her son. In the fourth amended complaint, the plaintiff alleged three counts: negligent care, negligent supervision and negligence per se for violation of F.S. §827.04, contributing to the delinquency of a child. The plaintiff alleged the defendants voluntarily assumed the care and custody of her minor son while she tended to a personal family emergency. Specifically, she alleged that the defendants created an environment for the use of drugs in their home, negligently allowed the use of illegal drugs by her minor son, failed to call an ambulance and failed to provide appropriate care when they knew or should have known the decedent overdosed.

In order to state a claim for negligence, the plaintiff must allege the existence of a duty, breach of that duty, causation and damages. In the instant case, the court found that plaintiff alleged three bases for a duty owed to her son; two deriving from the common law of negligence and the third coming from a statutory duty.

In the instant case, the plaintiff alleged in the fourth amended complaint that defendant undertook the duty to care for and supervise the plaintiff's son, and while the facts may ultimately not support the allegation, taking the well-pled allegations as true, the court held the fourth amended complaint stated a viable cause of action.

The court stated, "It is axiomatic that an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care." Barfield ex rel. Barfield v. Langley , 432 So.2d 748 ( Fla. 2 nd DCA 1983) (citing Barfield v. Addington , 140 So. 893 (1932). In other words, when one voluntarily assumes a duty of care, it requires the exercise of reasonable care.

The court cautioned that this case does not expand premises liability to impose a duty on a social host to seek medical attention for a guest unless that host has voluntarily undertaken that duty.

Robin B. Rothman