Negligent security cases are cases in which a landowner is exposed to liability resulting from criminal acts on the landowner’s property, regardless of whether the landowner is present. In this Article, the Author discusses the different types and sources of landowner duties, including statutory and common law, and the role that “control” plays in litigating these cases. Generally, there is no duty for a landowner to protect entrants from third-party criminal acts. However, a duty will arise when an individual responsible for the status of land maintains control over the tcrtfeasor, the instrumentality that the tortfeasor uses to commit the harm, or the land itself. If such a duty exists, that person or entity must take sufficient steps to protect visitors on the
hand If the landowner fails to take reasonable measures to satisfy that duty, and a jury determines that the lack of security caused injury or death to a visitor, the landowner may be exposed to significant liability.
Category: Issue 2
Oceans are rich with opportunity for coastal communities. Whether those opportunities are commercial or recreational, realizable today or preserved for generations to come, the sea holds assets which must be protected. This Article discusses the need for comprehensive ocean
policy in the state With more exposure to the sea than any other in the contiguous United States: Florida. By discussing the historical development of the federal government’s coastal management and ocean policy, the Article highlights and compares modern measures with
traditional single-sector solutions. Explaining the relationship between state and federal government action provides a background for why states must take the lead in protecting the ocean’s precious resources. The Article explains several state ocean management programs to provide the reader with a base to compare Florida’s ocean policy efforts. Outlining the challenges that Florida faces in the use of its waters—such as offshore oil and gas development, alternative energy development, and the effects of climate change—the Author argues that now is the time to implement policies to preserve the sea’s natural resources. The Article then discusses the results of current national ocean policy planning, the essence of which is that states may work together regionally and only voluntarily. Finally, the Author concludes that a comprehensive state policy on the ocean and coastal marine spatial planning is essential to Florida. Because there are many interests involved, Florida needs a clear Vision with which it may govern its oceans. By taking the lead in its own waters, Florida could influence the plans and priorities of national ocean policy.
This Article analyzes government-run websites as public fora under the auspices of the First Amendment with consideration given to the legal implications involved in maintaining and operating a government website. The Author describes the different kinds of fora and lists the varying levels of scrutiny that a court must apply to each when government regulation of speech or expression is involved. The Author places the various types of government-run websites into separate categories with a focus on the websites’ purposes. Further, the Author suggests which type of forum is applicable to each website category, providing guidance as to whether members of the public have a First Amendment right to participate in a given government-run website. Finally, the Author describes the limitations that may be placed on speech and expression based on the type of forum utilized by a government body in operating or maintaining a website.
The ideal of an informed citizenry necessitated the creation of public records laws, including the Freedom of Information Act. But at the state level, the “Government in the Sunshine” laws are being misused, especially in the Sunshine State. Academics have warned of the problem, and increasingly, public servants wrestle with overzealous citizens who are pushing the public records laws to the point of logical absurdity, One Florida town spent $20,000 on legal fees because it gave a citizen a bill for a $1.20 in photocopies; another town litigated over a public records request that it fulfilled, allegedly because a two-day response was not fast enough. The reality of the laws, as implemented, is that people have rights without any responsibility.
Careful reforms are needed, and this Article shows that some of the problems can be solved. To begin with, the executive branch of government must take compliance with the public records laws seriously, committing itself to the principles of public access while also engaging in greater self-policing. Open government does not require every person to be a policeman nor should it allow a self—appointed watchdog to become a vigilante. In addition, the judicial branch should avoid instinctive declarations that the public records laws provide “virtually unfettered” rights. Instead, the courts should carefully assess the facts and the letter of the law Courts must recognize that clever citizens playing “gotcha” with the government will bury the agency with burdensome requests, evade their duty to pay for the costs of asking for public records, sue for every type of error—no matter how petty—and then demand attorney’s fees as a reward for manufacturing the problem. The legislature should also make statutory changes, mirroring already existing statutes. Citizens should be required to give the government notice of intent to sue and an opportunity to fix the problem before they rush to court. In addition, the incentive to rush to court should be decreased by exposing abusive lawsuits to the possibility of paying the government’s attorney’s fees. Lastly, the legal profession can contribute to the solution by adhering to the applicable standards of legal ethics and professionalism, and even by holding pro se plaintiffs accountable.
The excesses of government in the sunshine have sunburned the government. As a result, the public servants, acting rationally in an effort to reduce the burdens and economic risks of the public records laws, are incentivized not to document their decisions at all. The result is a less transparent government that costs even more. Rather than allowing the abuses, costs, and ironic consequences to continue, this Article offers some sunscreen.
Local governments in Florida have diverse decision-making capacties—executive, legislative, and quasi-judicial. The Florida Constitution provides litigants the right to appeal quasi-judicial decisions of local governments to a circuit court; however, executive and legislative decisions are immune from appeal.
This Article examines a lower court’s constraints on reviewing quasi-judicial decisions. The Author analyzes the reasons that quasijudicial decisions are subject to appeal, as opposed to legislative and executive decisions that are outside a court’s scope of review, Further, the Author examines the constraints of judicial review at three stages of the appellate process—before the appeal, during the review, and after the appeal. First, the Author explains why, before the appeal, a court may only review a quasi-judicial decision from a proceeding that
requires notice and a full evidentiary hearing. Then, the Author identifies why, during the review, a court must follow a standard that accords deference to reasonable agency decisions. Finally, the Author explains why, after the appeal, a court has a limited ability to direct a local government’s tribunal. This Article, therefore, provides a comprehensive understanding of the limitations of appealing local government decisions.
The economic loss rule was introduced as a means of preventing the application of tort remedies to contract matters, and it developed into a method of ensuring the enforcement of contractual provisions. The purpose of the economic loss rule—first applied in the products liability context and eventually extended to the broad contractual-privity context—has been to prohibit tort claims from being brought where no personal injury or product damage has occurred and the only loss suffered is monetary. Florida courts traditionally applied the contractual privity economic loss rule this way until the Florida Supreme Court’s decision in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., where it rejected the contractual-privity economic loss rule and therefore limited the application of the economic loss rule to the products liability context.
The author asserts that the future of economic disputes in Florida is unclear because Florida courts have yet to clearly interpret the Tiara decision through subsequent caselaw to establish a bright-line rule. This uncertainty, the Author explains, extends to the products liability context. Now that the contractual-privity economic loss rule has been rejected, Florida courts have not clarified which claims are barred by the economic loss rule and which claims qualify as exceptions to the rule as it is applied following Tiara. The Author takes the position that the Florida Supreme Court’s current interpretation of the economic loss rule, which allows a plaintiff to bring a claim in tort by establishing a duty arising out of the contract but without showing a breach of the duty separate from the contract, conflicts with common law principles and creates ambiguity.
While it still remains unclear as to whether a contractual provision can give rise to a duty in tort for the sole purpose of recovering economic losses, Florida caselaw following Tiara appears to make this suggestion. If this is eventually developed into a bright-line rule, plaintiffs could use tort claims to circumvent certain contractual provisions, which could potentially lead to unlimited liability.
This Article examines in depth the statutory framework of Florida Statute Section 768.16, often referred to by its common name: Florida’s Wrongful Death Act. Specifically, this Article looks to the damages provisions of the Act in an attempt to determine whether Florida’s current system of recovery meets the widely accepted constitutional criteria created through historical jurisprudence. Part I provides a chilling example that lays the foundation for the analysis of exactly how unjust Florida’s current recovery scheme may be for a decedent and his or her survivors. Part 11 provides a look into what a wrongful death act seeks to achieve through a brief historical and constitutional context of tort liability for wrongful death. The relationship between the federal and state statutory framework is outlined, as well as the procedural nature of bringing a wrongful death claim. Part 111 then turns specifically to the Florida Act, detailing its constitutional purpose and construction, subsequent 1972 amendment, and legislative merging of the traditional “swivel” and “wrongful death” causes of action into one avenue of recovery. Specific focus is given to the damages provisions of both the old and new Act, and the practical limitations that such arrangement has placed on plaintiff recovery. The analysis then attempts to parse out those damages recoverable by the decedent’s estate and damages recoverable by eligible survivors, all the while noting the absence of two categories of recoverable damages: (1) pain and suffering of the decedent, himself, and (2) hedonic dam-
ages. Part IV delves into the theoretical motives behind plaintiff recovery via United States Code Section 1983 and the dual policies underlying the cause of action as accepted in today’s caselaw. The concepts of “compensation” and “deterrence” are then applied to Florida’s scheme to determine whether the state framework is inconsistent with the overarching federal policies. Both fictional and actual case hypotheticals are discussed, which lay the backdrop for inpointing inconsistent recoveries, inequitable recoveries, and in one scenario an overall lack of recovery for worthy plaintiffs. Finally, Part V offers some conclusions and recommendations for reworking Florida’s statutory framework to make wrongful death litigation more predictable and fair for potential plaintiffs all the while balancing the interests of the litigants, the demand on the court system, and the economic effects on the public as a whole. The Author proposes specific amended language and offers comparisons to other states’ schemes suggesting ways to better protect potential wrongful death plaintiffs and to help ensure that the means of our constitutional right to recovery are duly met.