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Florida Second DCA reviews procedural rules for punitive damages claim in nursing home negligence case, finds trial court did not make necessary finding regarding evidence of nursing home’s direct or vicarious liability for actions of employees

On June 12, 2019, in Carpenters Homes Estate, Inc, v. Sanders, No. 2D18-2608, the Florida Second DCA granted a petition for writ of certiorari filed by the defendant nursing home in a nursing home negligence case brought pursuant to chapter 400, Florida Statutes, the statutory chapter governing nursing home negligence cases in Florida.  The nursing home filed the petition for appellate review of the trial court’s order allowing the plaintiff to amend the complaint to include a punitive damages claim.  Pursuant to section 400.0237(1), a claim for punitive damages may not be brought in a nursing home negligence case unless there is a showing by admissible evidence that has been submitted by the parties that provides a reasonable basis for recovery of such damages.  With respect to a corporate nursing home defendant, a reasonable basis can be shown if there is clear and convincing evidence that the nursing home defendant contributed to the resident’s damages by (1) actively and knowingly participating in intentional misconduct, (2) acting with gross negligence, or (3) having an officer, director or manager ratify or consent to intentional or grossly negligent misconduct by an employee or agent.  See section 400.0237(2).  The Second DCA concluded that while the plaintiff had submitted ample evidence to support a claim of gross negligence against the nursing home staff, the evidence did not support the court's attribution of the staff's conduct to the nursing home corporate defendant under a theory of either direct or vicarious liability. The Court stated: “none of the admissible evidence implicated the nursing home defendants even in ordinary negligence—by, say, a failure to adequately staff or a failure to adequately train—let alone in either intentional misconduct or gross negligence. Nor did any of the admissible evidence indicate that any officer, director, or manager of the nursing home defendants had ‘condoned, ratified, or consented to’ the actions and incidents of inaction by the staff that the order identified.”  The Second DCA accordingly granted the defendant’s petition and quashed the order permitting the punitive damages claim.