The case began with a 1991 accident outside a Polk County Hardee's restaurant. James Hammond Jr., 72, sued the restaurant for negligence after he was struck by a van that jumped the curb as he was leaving the establishment. The driver had accidentally stepped on the accelerator while attempting to park in a space directly in front of the restaurant. Hammond suffered injuries that led to the partial amputation of one leg.
By the high court's ruling, Hardee's could be found negligent because it didn't have vertical bumper posts separating the parking lot from walkways. The court held that because other businesses in the area had installed such protections, a reasonable person might conclude that the accident was foreseeable. A trial judge had thrown out the case, siding with Hardee's attorneys who argue there was no way the business could have foreseen such a fluke accident.
The Supreme Court disagreed, rejecting a 1989 precedent established by Miami's 3rd District Court of Appeals in a similar case and sending the Hammond case back to Polk County for trial.
The "foreseeability" issue has long been a negligence standard. This opinion, business lawyers say, dramatically broadens the scope.
"This is a huge case," says Jodi Chase, general counsel of Associated Industries of Florida. "If you have any similarly situated business that's more careful than you, you are liable."
She and her colleagues may be looking to the Florida Legislature for help in narrowing the exposure.
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PROPERTY RIGHTS
Where California Meets Florida
They call him an enemy of the earth.
And he's looking to set up shop on the edge of the Everglades to advance a cause that environmentalists and government regulators fear could set back efforts to protect the state's natural resources.
But Bob Best, president of the Pacific Legal Foundation, a conservative California nonprofit organization with an aggressive property rights agenda, has heard all the predictions before.
"Our charter is not to go out and destroy trees," he says. "We are saying protect the tree, protect the swamp, but in a reasoned and balanced way which recognizes that there are individuals here with private property rights that also have to be protected."
Such sentiments are finding growing acceptance in Florida, where the combination of rapid growth and a sensitive environmental landscape has laid the groundwork for passionate conflicts between the rights of property ownership and the obligation of government to protect the common good.
Best says such friction creates a fertile climate for the organization's aims. "Florida is among a handful of states on the edge of new developments in property law," Best says. "The conflicts are all there." The Florida Legislature attempted to strike a balance in 1995 with the Bert Harris Jr. property rights act, which gave property owners who suffer "inordinate burdens" in the use of their land the right to sue for compensation. But the law was designed to be developed by judicial interpretation on a case-by-case basis.
The foundation, which provides free legal representation to property owners fighting government restrictions, is looking for cases that will help tip the balance of power in favor of property owners.
Typical of such clients, according to Best, is an 82-year-old Nevada widow whose residential lot in the Lake Tahoe area is tied up in environmental regulations despite the fact that it is bordered by homes on three sides. The foundation has taken the case to the U.S. Supreme Court. "We have been accused of finding our plaintiffs from central casting," Best says.
But, with supporters like the Sugar Cane Growers Cooperative of Florida and big developers, the organization is also accused of using such sympathetic plaintiffs to conceal an agenda more attuned to the designs of big business.
Miami eminent domain lawyer Toby Prince Brigham [FT, October 1996] is the group's dedicated advance man in south Florida. He says such arguments ignore the fact that the right of property ownership is a civil liberty guaranteed by an amendment to the U.S. Constitution.
Brigham recently attempted to put a property rights amendment to the Florida Constitution on the 1998 ballot. The measure failed to pass a procedural review by the Florida Supreme Court.
But with Brigham's help - he estimates he's raised about $155,000 so far - the Pacific Legal Foundation is well on the way to its goal of opening a two-lawyer Atlantic Center office later this month, possibly in Stuart.
"If we're going to preserve the environment," says Brigham, "we all have to do it together. If it's a public purpose, then the price of its accomplishment should not be greater for one citizen than another."
But Jane Hayman, deputy general counsel for the League of Cities, says some local governments, faced with the costs of having to litigate with property owners over land-use regulations, will simply yield. "It's a disincentive for government to try to protect the public good," she says.
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INVESTIGATIONS
Private Records
Buried in some 50 boxes in a room in Tallahassee are secrets Prudential Insurance Company of America would rather you didn't see. They are part of the state's two-year investigation into allegations of policy churning at the company - a practice that left thousands of people with depleted life insurance policies.
The investigation ended in February with an agreement that calls for Prudential to pay a $15 million penalty.
The case left investigators from the insurance department and attorney general's office with a mountain of evidence, including computer data, witness statements and anonymously sent internal records - a raft of potentially incriminating information that, under Florida law, becomes public when an investigation is concluded.
Lawyers suing Prudential on behalf of policy holders who opted out of the nationwide class-action settlement wasted little time in asking for the records.
Prudential has filed suit to get some of those records back, but the attorney general's office characterized the action as "without legal precedent in Florida."
Prudential, which believes that some records were provided to the state by its own in-house lawyers and are protected by attorney-client privilege, convinced a Tallahassee judge to keep the records secret for now, claiming that release would put Prudential "at grave disadvantage" in thousands of pending civil suits.
"The release of the documents will provide the plaintiffs' attorneys ... with access to the most highly sensitive communications and work-product documents that a company can produce," attorney Barry Richard argued in his motion. Such descriptions do little to quell interest in the records.
"That stirs up a certain amount of curiosity," says John Yanchunis, a St. Petersburg lawyer representing the estate of a former policy holder, and one of a dozen lawyers seeking the records. "If somebody yells loud enough, you've got to wonder why."
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LAW FIRMS
More Services, More Regulation?
A Florida Bar committee charged with looking into whether law firms should be permitted to offer accounting and other services shelved the project during the last legislative session. The reason: fear that the committee's deliberations could give further ammunition to those who want to place regulation of the legal profession under the state Department of Business and Professional Regulation instead of the Florida Bar. Some anti-Bar groups have been organizing to raise the regulation issue during this summer's public hearings before the state Constitutional Revision Commission
The Bar committee is now back on track, says Chair Martin Garcia, but the controversy continues. Supporters want law firms to be able to offer income-producing services similar to those offered by accountants, but state regulation remains a serious threat.
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