R.J. Reynolds Tobacco Co. v. Sury
118 So. 3d 849
| Fla. Dist. Ct. App. | 2013Background
- Dr. Robert Sury, as personal representative of William Sury, sued RJR and Lorillard for lung-cancer death linked to nicotine addiction.
- Plaintiff pursued a Third Amended Complaint with counts including strict liability, negligence, fraud, civil conspiracy, warranties, successor liability, and punitive damages.
- Jury found both defendants liable on negligent and strict liability theories and also liable for intentional torts (fraudulent concealment and conspiracy to conceal).
- Jury assigned 60% fault to decedent, 20% to RJR, and 20% to Lorillard; damages awarded were $1 million; no punitive damages awarded.
- Trial court held no apportionment under section 768.81 for intentional torts and awarded the full $1 million jointly and severally.
- Appellate court affirmed, rejecting waiver and upholding that 768.81 does not require reduction due to intentional torts when a plaintiff pleads and proves both negligent and intentional theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 768.81 require apportionment when mixed negligent and intentional torts exist? | Sury argued no reduction due to intentional torts not within 768.81's scope. | RJR/Lorillard argued reduction applies to the fault of the claimant, and intentional torts fall under 768.81. | No apportionment required; intentional torts exclude damages from 768.81. |
| Was there waiver of apportionment by plaintiff? | Plaintiff did not waive; pleaded potential apportionment on non-intentional counts. | Plaintiff acknowledged decedent's fault; defendants assert waiver through trial and verdict form. | No waiver; petitioned for apportionment consistent with pleadings and verdict form. |
| Should damages be reduced by decedent's fault under 768.81(2)? | Damages should not be reduced due to intentional tort findings. | Contributory fault should reduce damages under 768.81. | Damages not reduced by decedent's fault because intentional torts removed from 768.81 scope. |
Key Cases Cited
- Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986) (768.81 not applied when intentional acts evidenced in mixed counts)
- Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla. 1997) (intentional torts exclude damages from 768.81; strict construction of statute)
- Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996) (contributory fault and 768.81 interpretation must favor common law)
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006) (Engle Phase I findings; res judicata considerations for class members)