IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC05-1481 LOWER TRIBUNAL CASE NO. 3D04-95 GROVE ISLE ASSOCIATION, INC., Defendant/Petitioner, vs. IRENE ARDITI and MAURICE ARDITI, Plaintiffs/Respondents. JURISDICTIONAL BRIEF OF DEFENDANTS/RESPONDENTS, IRENE ARDITI AND MAURICE ARDITI ON DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL Andrew M. Moss Mark Hicks KUTNER, RUBINOFF Dinah S. Stein & BUSH, P.A. Brett C. Powell 501 N.E. First Avenue HICKS & KNEALE, P.A. Suite 300 799 Brickell Plaza, Ste. 900 Miami, FL 33132 Miami, FL 33131 Telephone: (305) 358-6200 Telephone: (305) 374-8171 Facsimile: (305) 577-8230 Facsimile: (305) 372-8038 Appellate Co-counsel for Plaintiffs/Respondents, Irene Arditi and Maurice Arditi
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 I. THERE IS NO CONFLICT JURISDICTION BECAUSE THE THIRD DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR OF ANOTHER DISTRICT COURT OF APPEAL... 3 A. The Facts of the Present Case are Entirely Distinguishable From R.J. v. Humana of Florida, thus Precluding any Express and Direct Conflict... 5 B. The Present Case Can be Read in Harmony with R.J. v. Humana of Florida... 6 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11 i
TABLE OF AUTHORITIES PAGE State Cases Arditi v. Grove Isle Assoc., Inc., 905 So. 2d 151, 152 (Fla. 3d DCA 2005)... 1, 2 Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1988)... 4 Hill v. Hill, 778 So. 2d 967, 968-970 (Fla. 2001)... 4 Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)... 5 Jones v. Florida Ins. Guar. Assoc., Inc., 30 Fla. L. Weekly S581, *21 (Fla. July 7, 2005)... 2 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 4 Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976)... 4, 5 Nielson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960)... 3 R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995)...passim Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)... 5 Shaw v. Shaw, 816 So. 2d 540 (Fla. 2002)... 4 Wainwright v. Taylor, 476 So. 2d 669, 670 (Fla. 1985)... 4 ii
INTRODUCTION This Response is filed on behalf of Plaintiff/Respondent, Irene Arditi. Petitioner, Grove Isle Association, Inc. ( Grove Isle ), seeks review of this Court, asserting that the Third District Court of Appeal s decision below is in conflict with the this Court s opinion in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995). As will be seen below, the two cases are based upon factually distinguishable circumstances, do not reach contradictory results and, therefore, are not in conflict. STATEMENT OF THE CASE AND FACTS Respondent, Irene Arditi filed suit against Petitioner for damages she received when she became trapped inside of a malfunctioned elevator [on Grove Isle s property] and suffered a heart attack immediately after jumping from the elevator to the floor. Arditi v. Grove Isle Assoc., Inc., 905 So. 2d 151, 152 (Fla. 3d DCA 2005). As the Third District explained: The incident at issue occurred when Arditi entered the elevator of her apartment building and the elevator suddenly stopped. She remained in the elevator alone for approximately twenty minutes before Miami- Dade Fire Rescue arrived. Miami-Dade Fire Rescue opened the elevator doors approximately twenty five minutes later. Rescue personnel asked Arditi to jump out of the elevator onto the lobby floor located two-and-a-half feet below the elevator. When she jumped, she immediately realized that she could not stand up and became dizzy. She also experienced numbness in her fingers and one of her feet. Oppression in her chest followed. She was transported by ambulance to a nearby hospital where a doctor informed her that she was having a heart attack. 1
Id. at 152. Dr. Ildefonso Mas, the surgeon who performed Mrs. Arditi s subsequent coronary surgery, reported that Mrs. Arditi s heart attack was most probably secondary to events, which occurred during the elevator incident from an acute frightful incident causing extreme catecholamine release. Id. at 152. The trial court entered final summary judgment in favor of Grove Isle and Thyssen Elevator Company ( Thyssen ). Id. Among its findings, the trial court determined that Dr. Mas report attributed Mrs. Arditi s heart attack to her fear of being stuck in the elevator. Id. at 153. The Third District reversed, observing that the trial court had construed the instant facts in the light most favorable to the moving parties, Grove Isle and Thyssen. Id. 1 Specifically, the Third District noted that Dr. Mas report does not unequivocally state the cause of Arditi s heart attack and that legitimate questions of fact remain as to the cause or causes of Mrs. Arditi s injuries. Id. 2 1 Thyssen has not sought review of this Court. 2 In its Jurisdictional Brief, Grove Isle asserts Mrs. Arditi claimed that her heart attack was caused by her apprehension of being stuck in the elevator. (Petitioner s Brief, at 1). This is a misstatement of the facts alleged in Mrs. Arditi s underlying suit and is unsupported by the Third District s opinion. This Court should therefore disregard Petitioner s assertion. See Jones v. Florida Ins. Guar. Assoc., Inc., 30 Fla. L. Weekly S581, *21 (Fla. July 7, 2005)( F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion. ). 2
SUMMARY OF THE ARGUMENT Petitioner is unable to demonstrate express and direct conflict between the Third District s opinion below and this Court s opinion in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995), because the Arditi opinion is based on specific and distinguishable facts, and because this opinion does not announce a departure from the rule of law recognized by the impact doctrine. ARGUMENT I. THERE IS NO CONFLICT JURISDICTION BECAUSE THE THIRD DISTRICT S OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR OF ANOTHER DISTRICT COURT OF APPEAL. Article V, section 3(b)(3) of the Florida Constitution confers jurisdiction on this Court over any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. This Court may exercise its conflict jurisdiction where the lower court has announced a rule of law which conflicts with a rule previously announced by this Court, or where the district court had misapplied an established rule of law to produce a different outcome in a case which involves the same controlling facts as a prior case decided by this Court. See Nielson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). Where a petitioner raises the theory that the district court misapplied established law to arrive at a contradictory outcome as a previous 3
decision of this Court, this Court is limited to the facts which appear on the face of the opinion. Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1988). Moreover, it is the facts, rather than the judicial philosophy evidenced in the opinion, that must pose the conflict with the previous decision in order to justify this Court s review under the circumstances. See Hill v. Hill, 778 So. 2d 967, 968-970 (Fla. 2001)(Pariente, J. specially concurring) (recognizing that this Court lacked conflict jurisdiction, despite the fact that the lower appellate courts reached contrasting results due to an express conflict in philosophies ). As this Court explained in Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962) 3 : We have said that conflict must be such that if the later decision and the earlier decision were rendered by the same Court the former would have the effect of overruling the latter. Id. at 887. Indeed, even where the decision under review expresses disagreement with the opinion with which it is asserted to be in conflict, no express conflict exists unless the facts of the cases are virtually identical. See Shaw v. Shaw, 816 So. 2d 540 (Fla. 2002)(this Court dismissed an appeal for want of conflict jurisdiction despite the fact that the lower court had expressed disagreement with 3 The Kyle holding still applies. This Court reiterated the Kyle characterization of conflict jurisdiction in Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976), a case that still serves as precedent for conflict jurisdiction. See Wainwright v. Taylor, 476 So. 2d 669, 670 (Fla. 1985) (post-jurisdictional amendment case citing Mystan). 4
the case asserted to be in conflict, because there were underlying factual differences between the two cases). A. The Facts of the Present Case are Entirely Distinguishable From R.J. v. Humana of Florida, thus Precluding any Express and Direct Conflict. As an initial matter, it must be noted that the operative facts of these two cases are entirely inapposite, as R.J. was premised on a negligent misdiagnosis which allegedly caused purely emotional distress, while the present case seeks to compensate Irene Arditi for the very real physical injury she suffered as a result of the Petitioner s negligence. Because the Third District s opinion was premised upon a situation completely unrelated to R.J., and because the Third District s opinion does not reference (much less express any disagreement with) this Court s R.J. opinion, there is no direct and express conflict between the two cases. See Reaves v. State, 485 So. 2d 829, 830 (Fla, 1986)( Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. ); Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)( It is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari. ); Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976)( Time and again we have noted the limitations on our review and we have refused to become a court of select errors. As was explained in Ansin v. Thurston, Article V uses the 5
words direct conflict to manifest a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants. ). Because Petitioner s jurisdictional brief relies exclusively on challenging what it contends is a conflict of reasoning, Petitioner has failed to present conflict sufficient to justify this Court s exercise of jurisdiction. B. The Present Case Can be Read in Harmony with R.J. v. Humana of Florida. In its Jurisdictional Brief, Grove Isle argues that the Third District s opinion disagrees with the logic of this Court s opinion in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995). In support of its position, Petitioner points to this Court s statement that the touching of a patient by a doctor and the taking of blood for ordinary testing would not qualify for a physical impact. Id. at 364. (Petitioner s Brief, at 4). Petitioner then wonders, if an act such as drawing blood is insufficient to constitute an impact, then how can a 2 ½ foot hop from an elevator be an impact? (Petitioner s Brief, at 4). Petitioner fails to grasp the import of this Court s R.J. decision. In R.J., the plaintiff had had his blood taken at the defendant s facility for the purpose of an HIV/AIDS test. Id. at 362. The plaintiff alleged that the facility negligently and incorrectly informed him that the results of this test were positive, causing the plaintiff to erroneously believe that he had the HIV virus. As this Court explained...r.j. claimed that, as a result of this misdiagnosis, he suffered 6
bodily injury including hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and the reasonable expense for medical care and attention. Id. at 364 (emphasis added). Thus, the tortious act upon which the R.J. plaintiff s claim was based was not the drawing of blood, but the negligent misdiagnosis of his condition. Indeed, this Court answered the certified question presented by the district court as follows: We have jurisdiction and, for the reasons expressed we answer the question in the affirmative, holding that damages for emotional harm as a result of a misdiagnosis cannot be recovered without a showing of some physical injury as a result of the misdiagnosis. Id. at 361 (emphasis added). Thus, as identified by this Court, the plaintiff s claim did not even allege that the consensual touching necessitated by the defendant drawing blood resulted in his emotional distress. Rather, the basis of the plaintiff s claim was that the negligent misinformation he received (which obviously did not involve personal contact) was the cause of his emotional injury. Grove Isle attempts to support its position with this Court s statement that the touching of a patient by a doctor and the taking of blood for ordinary testing would not qualify for a physical impact, a more complete quotation places this Court s statement in context: We do recognize, however, that a negligent misdiagnosis such as the one at issue could result in unnecessary and harmful medical treatment that does in fact cause bodily injury, which, in turn, would satisfy the requirements of physical impact. Although we find that the touching of a patient by a doctor and the taking of blood for ordinary 7
testing would not qualify for a physical impact, other more invasive medical treatment or the prescribing of drugs with toxic or adverse side effects would so qualify. Id. at 364 (emphasis added). Thus, this Court held out the possibility that a de minimus physical touching (the injection or administration of an unneeded drug) that results in physical harm could constitute an impact within the meaning of the impact doctrine. Thus, this Court merely identified the distinction between a voluntary touching undertaken during a regular medical examination and the ingestion of harmful chemicals necessitated by the defendant s negligent action. In doing so, this Court recognized that the context of the asserted impact is determinative in assessing whether or not the facts satisfied the impact rule requirements. 4 In the present case, the Third District did not voice any disagreement with this Court s reasoning in R.J., nor did it attempt to retreat from the impact doctrine. Instead, the court simply determined that, if the facts demonstrate that Mrs. Arditi s coronary dissection were caused by striking the marble floor, then the impact rule would be satisfied. The court therefore reversed the trial court s grant of summary judgment, so that the facts of the case could be fully developed. 4 To paraphrase the question posed by Grove Isle, if the administration of an unnecessary drug can satisfy the impact requirement, why couldn t striking a marble floor after a 2 ½ foot drop constitute an impact? 8
Under the Third District s holding, should the facts of the present case (when fully developed) support the view that this physical injury was caused, at least in part, by striking the Grove Isle floor, then the impact rule will be satisfied. Likewise, if the facts ultimately demonstrate that Mrs. Arditi s injuries were solely the result of fright, then the impact rule will bar her claim. Likewise, in R.J., this Court recognized that the facts of that case may satisfy the impact rule requirements, and reversed the District Court with instructions to allow the plaintiff to amend his complaint to allege the appropriate physical contact. Thus, the reasoning and outcome of these two cases can be read in harmony, as both cases uphold the impact rule, and both recognize that evidence of a physical impact satisfies the rule. Thus, the Third District s case does nothing to undermine this Court s R.J. holding, and does not announce a rule of law inconsistent with the impact rule. Because the Third District s holding in the present case neither purports to change the law nor stands in direct conflict with R.J., the Third District s opinion does not present any express and direct conflict. Thus, it is respectfully submitted that this Court does not have jurisdiction under Article V, section 3 of the Florida Constitution, and discretionary review should be denied. 9
deny review. CONCLUSION For the foregoing reasons, Respondents respectfully request that this Court Respectfully submitted, Andrew M. Moss, Esq. Fla. Bar No. 170259 Kutner, Rubinoff & Bush, P.A. 501 N.E. First Avenue, Ste. 300 Miami, FL 33132 Telephone: (305) 358-6200 Facsimile: (305) 577-8230 - and - HICKS & KNEALE, P.A. 799 Brickell Plaza, Ste. 900 Miami, FL 33131 Telephone: (305) 374-8171 Facsimile: (305) 372-8038 Appellate Co-counsel for Respondents, Irene Arditi and Maurice Arditi BY: MARK HICKS Fla. Bar No. 142436 DINAH S. STEIN Fla. Bar No.: 98272 BRETT C. POWELL Fla. Bar No.: 610917 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this 22nd day of September, 2005, to all counsel listed below: Hugh J. Connolly, IV, Esq. Joseph, Jack & Miranda, P.A. 2950 S.W. 27th Avenue, Suite 100 Miami, FL 33133 Tel: (305) 445-3800 Fax: (305) 448-5800 Counsel for Defendant/Petitioner, Grove Isle Association, Inc. BY: BRETT C. POWELL Fla. Bar No.: 610917 CERTIFICATE OF COMPLIANCE This brief complies with the font requirements. It is typed in Times New Roman 14 point, proportionately spaced type. BY: BRETT C. POWELL Fla. Bar No.: 610917 11