Fourth District Court of Appeal Judge Jeffrey T. Kuntz urged the Florida Bar's Appellate Court Rules Committee to reconsider its stance on reviewing punitive damages, after a change to the 1993 statutory law on which it's based.

While case law says appellate courts can't review whether lower courts correctly allowed punitive damages, Kuntz suggested defendants should be able to appeal a plaintiff's move to add the extra damages.

Kuntz concurred specially with an opinion denying review to Miami event planning company The Event Depot Corp., which sought relief from punitive damages in a corporate negligence lawsuit. Kuntz wrote that case law meant “no” was the only answer the courts could give, even though this “provides litigants only the narrowest review of an order that can transform a lawsuit.”

The opinion stems from a suit by the parents of Terri Frank, who fell from a “Psycho Swing” fairground ride at Hollywood's Seminole Ball Park in 2011. The parents sued the ride's manufacturers, owners and operators for strict negligence and liability. Among those tangled in the nine-count complaint was The Event Depot Corp., which owned and leased out the equipment.

The Franks claimed, among other things, that The Event Depot leased the swing without a safety harness, owner's manual or adequate training. The swing's owners denied liability and moved to dismiss.

Partway through, the plaintiffs asked to add a claim for punitive damages, reserved for the punishment of outrageous conduct. According to Wednesday's opinion, Broward Circuit Judge Mily R. Powell allowed claims for punitive damages against all the defendants except one — The Event Depot.

Months later, the plaintiffs tried again. After a hearing the trial judge agreed, having heard testimony from the swing's creator Robert Murray, who said The Event Depot had shown a ”reckless disregard for the health and safety of human life.”

The Event Depot objected, arguing that the plaintiffs hadn't made a clear case for extra damages. But Wednesday's opinion leaned on a landmark 1995 U.S. Supreme Court case Globe Newspaper Co. v. King, which provided limited scope. According to Globe, appellate courts can review whether a trial judge followed correct procedure surrounding punitive damages but can't review whether there's reasonable evidence supporting punitive damages if all procedural steps were followed.

In this case, Judge Powell went by the book, so the appellate court said it had no other route, even though it seemed inclined to offer a wider review. Fourth DCA Judge Alan O. Forst wrote the opinion, backed by Judges Martha Warner and Jeffrey Kuntz.

In his concurring opinion, Kuntz noted a sister court, Florida's Third DCA, has found that allowing plaintiffs to tack on punitive damages could be a litigation “game changer,” opening defendants up to potentially uninsured losses that would have otherwise been “off limits.”

That prompted the Third DCA to suggest the Florida Bar change Appellate Procedure 9.130 to allow defendants to appeal plaintiffs' requests to add punitive damages.

“I share those concerns,” Kuntz wrote.

Kuntz also highlighted that Globe based its findings on legislation that's since changed, now more focused on procedural requirements and demanding “clear and convincing evidence of gross negligence or intentional misconduct” for punitive damages. The Globe case came at a time when Florida Statute Section 768.72 gave petitioners the right to be “free of financial discovery, absent a particularized showing.”

Lawyers for the Frank family, Jonathan Gdanski and David Silverman of Schlesinger Law Offices in Fort Lauderdale, were unavailable before deadline. Counsel to The Event Depot, Eric Morales and Jason Klein of Wood, Smith, Henning & Berman in Miami, did not respond to requests for comment.

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