Orange Cnty. v. Piper, 523 So. 2d 196 (Fla. 5th DCA 1988). · Go Syfert
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Orange Cnty. v. Piper, 523 So. 2d 196 (Fla. 5th DCA 1988). Cases Citing This Book View Copy Cite
40 citation events (15 in the last 25 years) across 3 distinct courts.
Strongest positive: THOMAS SAMMONS v. ADAM GREENFIELD, D. O. (fladistctapp, 2019-05-08)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) THOMAS SAMMONS v. ADAM GREENFIELD, D. O.
Fla. Dist. Ct. App. · 2019 · confidence medium
The court stated "that 'Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.' " Id. (quoting Orange Cty. v. Piper, 523 So. 2d 196, 198 (Fla. 5th DCA 1988)).
discussed Cited as authority (rule) THOMAS SAMMONS v. ADAM GREENFIELD, D. O.
Fla. Dist. Ct. App. · 2018 · confidence medium
The court stated "that 'Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the - 12 - consortium.' " Id. (quoting Orange Cty. v. Piper, 523 So. 2d 196, 198 (Fla. 5th DCA 1988)).
discussed Cited as authority (rule) Diecidue v. Lewis (2×)
Fla. Dist. Ct. App. · 2017 · confidence medium
Ass’n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000) (citing Orange Cnty. v. Piper, 523 So.2d 196, 198 (Fla. 5th DCA 1988)) (explaining that a proposal for settlement which failed to specify the amounts offered to two plaintiffs would have deprived one of the plaintiffs, who had a derivative claim for loss of consortium, of control as to her own claim).
discussed Cited as authority (rule) Randall v. Walt Disney World Co.
Fla. Dist. Ct. App. · 2014 · confidence medium
Similarly, this court has previously stated that “Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.” Orange Cnty. v. Piper, 523 So.2d 196, 198 (Fla. 5th DCA 1988) (citing Busby, 80 So.2d at 676 ).
cited Cited as authority (rule) Foreline Security Corp. v. Scott
Fla. Dist. Ct. App. · 2004 · confidence medium
E.g., Cornette v. Spalding & Evenflo Cos., 608 So.2d 144, 145 (Fla. 4th DCA 1992); Orange County v. Piper, 523 So.2d 196, 197 (Fla. 5th DCA 1988).
discussed Cited as authority (rule) ACandS, Inc. v. Redd
Fla. Dist. Ct. App. · 1997 · confidence medium
Rather, instead of reading these cases as standing for the proposition that the loss of consortium claim survives the primary action, we read these cases to stand for the proposition that the primary cause of action for personal injury and the derivative cause of action for loss of consortium are "separate and distinct." Busby, 80 So.2d at 676 (holding that a husband's consortium claim is "separate and distinct" from his wife's personal injury claim and may be maintained without joinder of the injured wife); Piper, 523 So.2d at 197-98 (holding that a wife's failure to give notice by filing her…
cited Cited "see" Wransky v. Dalfo
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla.1988).
discussed Cited "see" Salazar v. Quintero
Fla. Dist. Ct. App. · 2001 · signal: accord · confidence high
Gates v. Foley, 247 So.2d 40 (Fla.1971); Scudder v. Seaboard Coast Line, R.R., 247 So.2d 46 (Fla.1971); accord Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988), review denied, 531 So.2d 1354 (Fla.1988).
discussed Cited "see" Gonzalez v. Rose
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995) (adopting Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988)); Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA 1987); Davis v. Lewis, 331 So.2d 320 (Fla. 1st DCA 1976).
discussed Cited "see" United Services Auto. Ass'n v. Behar
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988) (holding that loss of consortium is separate cause of action belonging to spouse of injured married partner, and though derivative in sense of being occasioned by injury to spouse, it is a direct injury to spouse who has lost consortium); see also Metropolitan Dade County v. Reyes, 688 So.2d 311 (Fla.1996).
discussed Cited "see" Gary Groves and Kathy Groves, Husband and Wife v. Firebird Raceway, Inc., an Idaho Corporation the National Hot Rod Association, a California Corporation John Does I Through V
9th Cir. · 1995 · signal: accord · confidence high
Co., 586 N.Y.S.2d 813, 815 (N.Y.App.Div.1992); accord Orange County v. Piper, 523 So.2d 196, 198 (Fla.Dist.Ct.App.1988); ("loss of consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium."); Barchfeld v. Nunley, 577 A.2d 910, 912 (Pa.Super.Ct.1990) ("loss of consortium claim is a derivative of the personal injury claim, but, at the same time, it is separate and distinct from the [physically injured] spouse's per…
cited Cited "see" Auster v. Strax Breast Cancer Institute
Fla. Dist. Ct. App. · 1995 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla. 1988).
discussed Cited "see" Cornette v. SPALDING & EVENFLO CO.
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla. 1988) (failure to give requested jury instruction constitutes reversible error where complaining party establishes that requested instruction accurately states applicable law, facts in the case support giving instruction, and instruction was necessary to allow jury to properly resolve all issues in the case).
cited Cited "see" Scarlett v. Public Health Trust
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), review denied, 531 So.2d 1354 (Fla. 1988).
cited Cited "see" Calloway v. Dania Jai-Alai Palace, Inc.
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988), rev. denied, 531 So.2d 1354 (Fla. 1988).
discussed Cited "see" Keramati v. Schackow
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982), overruled on other grounds by Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla. 1988).
discussed Cited "see" Lecuyer v. State, Department of Transportation
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Levine v. Dade County School Board, 442 So.2d 210, 212-13 (Fla.1983), Mrowczynski v. Vizenthal, 445 So.2d 1099 (Fla. 4th DCA 1984), and Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla.1988).
discussed Cited "see, e.g." Morhaim v. State, Department of Transportation
Fla. Dist. Ct. App. · 1999 · signal: see also · confidence medium
See Metropolitan Dade County v. Reyes, 688 So.2d 311, 313 (Fla.1996); see also Orange County v. Piper, 523 So.2d 196, 197-98 (Fla. 5th DCA 1988) (wife’s failure to file loss of consortium claim with county warranted dismissal).
Retrieving the full opinion text from the archive…
ORANGE COUNTY, a Political Subdivision of the State of Florida, Appellant,
v.
William E. PIPER and Kathryn Fernandez Piper, His Wife, Appellees. William E. PIPER and Kathryn Fernandez Piper, His Wife, Appellants, v. ORANGE COUNTY, a Political Subdivision of the State of Florida, Appellee.
87-663, 87-1153.
District Court of Appeal of Florida, Fifth District.
Apr 14, 1988.
523 So. 2d 196
1988 WL 32043
Sharp.
Cited by 32 opinions  |  Published

[*197] Steven J. Lengauer, of Pitts, Eubanks, Hilyard, Rumbley & Meier, P.A., Orlando, for Orange County.

William W. Fernandez, Orlando, and Calvin J. Faucett, Lake Mary, for William and Kathryn Piper.

SHARP, Chief Judge.

William Piper appeals from a final judgment awarding him $12,890.70 in damages. He suffered personal injuries when he fell into a trash compactor which was operated by Orange County. He argues the trial court erred in failing to read Florida Standard Jury Instruction 3.5(f) to the jury. Orange County cross-appeals from an order granting Mrs. Piper a new trial on the issue of damages for loss of consortium. We reverse on both grounds.

Failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that:

(1) The requested instruction accurately states the applicable law,
(2) The facts in the case support giving the instruction, and
(3) The instruction was necessary to allow the jury to properly resolve all issues in the case.

Giordano v. Ramirez, M.D., 503 So.2d 947 (Fla. 3rd DCA 1987); Alderman v. Wysong & Miles Co., 486 So.2d 673 (Fla. 1st DCA 1986).

Initially, both parties requested Florida Standard Jury Instruction 3.5(f) be read to the jury. 3.5(f) as submitted by Piper stated:

Whether Defendant Orange County negligently failed to maintain its premises in a reasonably safe condition; or whether Defendant Orange County negligently failed to correct a dangerous condition of which Defendant Orange County either knew or should have known by the use of reasonable care; or whether Defendant Orange County negligently failed to warn Plaintiff William E. Piper of a dangerous condition concerning which Defendant Orange County had, or should have had, knowledge greater than that of Plaintiff William E. Piper.

We reject the County's argument that Florida Standard Jury Instruction 3.5(f) inaccurately states the law as it applies to governmental entities. Cf. Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). If facts at trial established a basis to find that Orange County failed to maintain its premises in a reasonably safe condition, or to warn or correct a known dangerous condition, the instruction should have been given.

The failure to give this instruction was not harmless error in this case especially in light of the jury's finding of 90/10% liability in favor of Orange County. Much of Piper's evidence on these issues was excluded by the trial judge. However, the procedure for dumping trash in the compactor, as prescribed by the County, and the necessary proximity of vehicles and persons to the pit, without a guardrail, along justified the giving of the instruction and the jury's finding of some liability on the part of Orange County.

With respect to the loss of consortium claim we find that Mrs. Piper's failure to file her claim with the County or join in Mr. Piper's claim,[1] as required by section 768.28(6), Florida Statutes (1981) warrants its dismissal.[2]Levine v. Dade County[*198] School Board, 442 So.2d 210 (Fla. 1983). See also Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). Compliance with 768.28(6) is clearly a condition precedent to maintaining a suit.

Mrs. Piper's reliance on this court's opinion in Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982), for the principle that a technical defect in a notice can be waived when the notice is sufficient to provide authorities with an opportunity to investigate shortly after the occurrence, apparently has been impliedly overruled by Levine. Cf. Franklin v. DHRS, 493 So.2d 17 (Fla. 5th DCA 1986) (compliance with notice requirement satisfied even though notice of claim to Department of Insurance was not given by accident victim but by defendant).

Florida case law recognizes that loss of consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla. 1955); see also Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA), cert. denied, 297 So.2d 836 (Fla. 1974); Resmondo v. International Builders of Fla., Inc., 265 So.2d 72 (Fla. 1st DCA 1972) (both cases holding that husband's release did not abate wife's cause of action for loss of consortium, which was a property right in her own name); but see Gates v. Foley, 247 So.2d 40 (Fla. 1971) (termination of husband's cause of action because of adverse judgment on the merits should bar wife's cause of action for loss of consortium). Therefore, the filing of the required notice by William Piper did not serve as the required notice for Kathryn, nor did it excuse the necessity for her filing a notice of her loss of consortium claim.

REVERSED AND REMANDED.

COWART, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge, concurring specially.

I concur in Judge Sharp's opinion, except that I would not so hastily relegate Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982) to the judicial scrap heap. While I agree that Whitney does not support Kathryn Piper's position here, I do not agree that it was impliedly overruled by Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983). Levine held that the failure of the plaintiff to give any notice to the Department of Insurance within the three year period required by section 768.28(6), Florida statutes (1977), barred the action. In Whitney, proper notice was given to the Department of Insurance, and the issue was whether the written notice of claim submitted to the agency was sufficient as to form when it contained all required details, and made a claim for medical mediation under the medical malpractice statute then in effect. We held in Whitney that although section 768.28(6) bars an action against the state or its agencies "unless the claimant presents the claim in writing to the appropriate agency" but does not specify the form in which the claim be presented, a writing which made a claim and contained all the pertinent details on which the claim was based, satisfied the statute, although couched in the form of a request for medical mediation. That issue was not presented in or ruled on in Levine.

1 We note that Mr. Piper's claim did not even give notice of his marital status.
2 Section 768.28(6) provides:

An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing.