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Florida Legislature 2005 (click for ongoing coverage)

THE LATEST Man gets $2M for 22 years he lost Mystery: Who left money faucet on? Many hurricane relief measures get blown away Dramatic proposal, cautious response Legislature doesn't act on minimum wage deal For open-government cause: 'a mixed bag'

A user's guide to 'tort reform'

By JONI JAMES
Published April 3, 2005

ISSUE: Street Lighting (House Bill 135, Senate Bill 1790)

BACKGROUND: The question is one of public safety and corporate liability. The Florida Supreme Court ruled in 2003 that utility companies can be held liable for nighttime injuries sustained on streets when street lights are out. The ruling stemmed from two cases involving pedestrians hit by cars beneath street lights that didn't work.

THE PROPOSED CHANGE: Utility companies and some local governments that run them would have immunity as long as they can demonstrate that they have procedures for responding to outage reports. That immunity would be available to utilities only for 60 days after they received a report of a nonworking street light.

Opponents have argued that utility companies, which are monopolies and have access to rights of way, have a public obligation to keep street lights working. They argue any lessening of that expectation will lead to companies' cutting corners on maintenance, jeopardizing public safety.

PROPONENTS: Utility companies, including TECO, and public-owned utilities.

OUTLOOK: Pretty good. Last year, the House wanted to grant near-blanket immunity to utility companies, but this year the proposal has been whittled to 60 days after the report of an outage. The Senate may push to shrink the window to 30 days, as it did last year.

ISSUE: Premises Liability (House Bill 1513, Senate Bill 2566)

BACKGROUND: This issue has especially wide interest to businesses, particularly retail operations. State law requires business operators to take "reasonable care" to maintain premises for visitors' safety, including keeping areas free of objects and substances that might cause an injury. In 2001, the Florida Supreme Court ruled it was unfair to bar a lawsuit by a woman who slipped on a banana in a supermarket just because she couldn't prove the supermarket wasn't adequately maintaining its aisles. Juries should hear such "slip-and-fall" cases and decide them individually, the court said.

A second issue is liability for criminal acts. When a visitor is victimized by a third-party criminal, such as a parking lot mugging, a judge or jury decides whether the business was negligent.

THE PROPOSED CHANGE: Business groups are looking for a major change on this one. The presumption that businesses must maintain safe premises would be removed from state law. Plaintiffs would be required, before bringing a slip-and-fall case, to prove the business knew of the dangerous condition and failed to remedy it.

On criminal liability, the court would be required to assign apportionate liability to the criminal, even if he or she has not been identified, which would lessen the burden on the business owner.

Opponents argue both proposals protect businesses too much and will encourage a lax approach to visitors' safety and crime prevention.

PROPONENTS: Publix, Wal-Mart and other major retailers, as well as the Florida Retailers Federation and the Florida Restaurant Association.

OUTLOOK: Fair, but anything that passes is likely to be watered down. Senate President Tom Lee has been adamant that state law should maintain an expectation that businesses are responsible for their visitors' safety.

ISSUE: Product Liability (House Bill 1513 and Senate Bill 2568)

BACKGROUND: This is another issue in which a wide range of businesses have a stake in the outcome. It's common practice that when a plaintiff is injured by a product, he or she sues the business that sold the product and the manufacturer.

THE PROPOSED CHANGE: A seller of goods would have immunity from product liability unless the seller altered, designed or assembled the product, or if the manufacturer is not subject to the state's jurisdiction. For example, a seller could be sued if the manufacturer had no identifiable agent in the United States.

Opponents of the change argue that such an effort puts an undue burden on the plaintiff to file a claim and leaves little incentive for retailers to consider the quality and safety of goods.

PROPONENTS: Wal-Mart, Home Depot, the Florida Retailers Federation and car dealerships, among others.

OUTLOOK: Not good. Such a change would mark a major shift in tort law, and little has been done to bring a reluctant Senate on board.

ISSUE: Asbestos I (House Bill 1019 and Senate Bill 2562)

BACKGROUND: This is an issue that has stumped Congress for decades: how to make sure victims of asbestos exposure, which can lead to cancer, are compensated without putting too many of America's biggest employers at risk. Legal claims from victims of asbestos, a superb insulation material that was widely used in manufacturing until federal safety standards were adopted in 1972, have pushed more than 70 companies to file bankruptcy.

The issue is further complicated because it can take 30 years for asbestos-caused cancer to manifest. Who to pay first? Those who are ill or those who may become ill? Courts across the country are clogged with cases, including an estimated 9,000 in four Florida counties.

THE PROPOSED CHANGE: Limit claims in Florida courts to those plaintiffs who have asbestos-related ailments and live here or were exposed to asbestos here. It also would set into state law, for the first time, specific medical criteria for plaintiffs. A diagnosis would be considered valid only if made by a doctor who spends no more than 10 percent of his or her practice on class-action litigation and who has a personal relationship with the plaintiff. The bill also sets occupation-related minimum exposure requirements before a plaintiff can bring a claim, and would ban smokers from filing claims unless they have evidence their disease is not related to tobacco use. Ohio passed similar legislation and the American Medical Association endorsed the medical criteria.

The trial lawyer academy, however, argues the medical criteria is questionable and the changes are so severe that victims may have trouble finding a qualified physician. Plus, the victims whose illnesses are not related to work could have trouble getting access to the court.

PROPONENTS: General Electric, Georgia Pacific, Equitas, Bayer and other asbestos-related firms, plus their insurers.

OUTLOOK: Fair, in part because the companies have hired a plethora of Tallahassee lobbyists who are telling their story. The unknown: Will the testimony of asbestos victims, expected in committee meetings, carry enough weight to block it?

ISSUE: Asbestos II (House Bill 785 and Senate Bill 2228)

BACKGROUND: Since federal safety regulations were put into place in 1972, many original asbestos employers have been bought or merged with other companies. State law puts no limit on the liability of those successor corporations, even if their main business has nothing to do with asbestos products.

PROPOSED CHANGE: A corporation that absorbed a former asbestos-related entity before 1972 would be liable only for the adjusted fair market value of the original firm's gross assets. The proposal would help one firm in particular: packaging-giant Crown Cork & Seal of Philadelphia. In the mid 1960s, the company acquired a firm with a New Jersey asbestos-related entity, Mundet Cork Corp. The entity was shut down within 90 days. Crown Cork now faces lawsuits in Florida and elsewhere related to Mundet.

PROPONENTS: Crown Cork & Seal.

OUTLOOK: Good. With bipartisan support, its odds may be the best of any tort proposal.

ISSUE: Joint and Several Liability (House Bill 1513)

BACKGROUND: Marked as a high priority in Tallahassee, this is an issue with a complicated name and a complex history. Essentially, joint and several liability refers to a branch of law that deals with cases in which more than one party may be responsible for an injury. For centuries, the courts have ruled that when two or more defendants share liability for someone's injury, they share the burden to make the victim whole. But that cost is not always split equitably between defendants.

Florida Supreme Court rulings in 1973 and 1987 have made it more likely that a deep-pocketed defendant ends up footing a greater share of the bill. The 1973 case was a landmark in which the court spelled out that a plaintiff's role in his injury, known as "contributory liability," does not exempt co-defendants from having to pay damages. Then in 1987, the court upheld a ruling that Walt Disney World could be made to pay 86 percent of the damages to a woman injured on the park's bumper car ride even though a jury found the corporation 1 percent responsible for injury.

In 1999, the state Legislature put some limits on co-defendants' liability, based on the proportion a jury determined was their fault.

THE PROPOSED CHANGE: Link each defendant's liability to the specific amount of blame a jury has assigned it. For example, under this proposal Walt Disney World would have had to pay 1 percent of the damages awarded by a jury in the bumper car case. A backup position: Tighten the 1999 caps.

Critics argue this will make it hard for plaintiffs to find legal representation because some cases will have no hope of damages if wealthier co-defendants aren't on the hook. They say it could prevent many victims from finding the restitution they need to lead lives independent of government services.

PROPONENTS: The Florida Chamber of Commerce and Associated Industries of Florida, along with nearly every other business lobby group.

OUTLOOK: Poor. Doing away with joint and several liability would be nothing short of a revolution in Florida's civil law, and the trial academy will do all it can to prevent it. Besides, neither House Speaker Allan Bense or Lee seem willing to tackle it this year.

ISSUE: Sovereign Immunity for Law Enforcement (House Bill 1513 and Senate Bill 2002)

BACKGROUND: In 1993, the Florida Supreme Court ruled that police officers and their agencies can be held liable for injuries caused as a result of a high-speed chase. The ruling stemmed from a 1984 chase in Pinellas County in which two women were killed after being hit by a motorist being pursued by a sheriff's deputy. The suspect had run a red light.

Law enforcement agencies have long argued it is unfair for officers to have to be worried about lawsuits as they make split-second decisions to protect the public.

THE PROPOSED CHANGE: Law enforcement agencies and their officers would have immunity from lawsuits related to high-speed chases as long as the pursuit did not "involve willful or wanton disregard for the safety of persons or property" and that the suspect is believed to have committed a felony.

PROPONENTS: The Florida Sheriff's Association and a host of other law enforcement groups.

OUTLOOK: Tossup. Florida's law enforcement community has many friends among the Republican Legislature, but the effort has failed before because of concerns that immunity would increase police powers and might lead to reckless decisionmaking.

[Last modified April 3, 2005, 00:56:28]