ESTATE OF Beulah DESPAIN, etc., Appellant,
v.
AVANTE GROUP, INC. and Avante at Leesburg, Inc., Appellees.
District Court of Appeal of Florida, Fifth District.
*639 Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., and Brian L. Thompson of Wilkes & McHugh, P.A., Tampa, for Appellant.
Betsy E. Gallagher, Aram P. Megerian and Michael C. Clarke of Cole, Scott & Kissane, P.A., Tampa, for Appellee.
SAWAYA, C.J.
The Estate of Beulah Despain appeals a final judgment rendered pursuant to a jury verdict awarding compensatory damages for violation of the decedent's rights as a nursing home resident under section 400.022, Florida Statutes (1999), negligence, and the decedent's wrongful death. Despain specifically appeals the order denying the personal representative's motion to amend the complaint to allege a claim for punitive damages against Avante Group, Inc. and Avante at Leesburg, Inc. The issue we must resolve is whether Despain made a sufficient showing by evidence in the record or proffer to establish a reasonable basis to plead a claim for punitive damages pursuant to section 768.72(1), Florida Statutes (1999).
The decedent, eighty-one-year-old Beulah Despain, was admitted to a nursing home owned and operated by Avante Group, Inc. and Avante at Leesburg, Inc. on January 15, 1999. She was hospitalized on April 1, 1999, and died of respiratory arrest secondary to aspiration pneumonia on April 6, 1999. The personal representative of the estate filed suit for compensatory damages and subsequently filed a motion to amend the complaint to allege a claim for punitive damages. In a lengthy memorandum, the estate proffered the facts it asserted formed the reasonable basis for its claim of punitive damages and filed affidavits of witnesses. This motion was denied and a subsequent motion was filed. After once again considering the proffered facts and the record evidence, the trial court denied the subsequent motion and the case proceeded to trial, resulting in a verdict and judgment awarding compensatory damages to Despain.
In order to properly decide whether the requisite showing was made under section 768.72(1) to allow Despain's claim for punitive damages, we must first determine the correct standard that establishes whether misconduct is so egregious as to warrant an award of punitive damages. Next, we must determine the appropriate standard of review that will guide us in our application of the legal standard to the record evidence and the proffer presented by Despain so we can decide whether it is sufficient to establish a reasonable basis to plead a claim for punitive damages. Once these two standards are determined, we can resolve the issue on appeal and arrive at a conclusion.
I. The Requisite Showing That Must Be Made To Allow A Claim For Punitive Damages
A. The Basic Standard
A resident who has a cause of action against a nursing home under section 400.022, Florida Statutes (1999), may recover punitive damages in appropriate cases. § 400.023(1), Fla. Stat. (1999); see also Beverly Enters.-Fla., Inc. v. Spilman,
To merit an award of punitive damages, the defendant's conduct must transcend the level of ordinary negligence and enter the realm of willful and wanton misconduct, which the courts define as conduct that is of a
gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.
White Constr. Co. v. Dupont,
B. The Corporate Employer Standard
A corporate employer, like an individual employer, may be held liable for punitive damages based on the legal theories of either direct or vicarious liability. Schropp v. Crown Eurocars, Inc.,
C. The Pleading Requirements
In order to plead a claim for punitive damages, a plaintiff must comply with section 768.72(1), Florida Statutes. This statute provides:
In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.
§ 768.72(1), Fla. Stat. (1999) (emphasis added);[4]see also Fla. R. Civ. P. 1.190. Because the amount of an award may be a pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer. Accordingly, although section 768.72(1) is procedural in nature, it also provides a substantive right to parties not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisite showing under the statute has been made to the trial court. Simeon, Inc. v. Cox,
*642 There is no definition of the term "reasonable basis" in section 768.72(1). Therefore, in deciding whether a "reasonable basis" was established by the record evidence and proffer presented by Despain to allow the requested claim for punitive damages under section 768.72(1), we must determine the appropriate standard of reviewde novo or abuse of discretionto apply.
II. Standard Of Review To Determine Whether A Reasonable Basis Has Been Shown To Allow A Claim For Punitive Damages
Because section 768.72(1) provides a substantive right to a defendant not to be subjected to discovery of his or her financial worth until the trial court has found a reasonable basis for a plaintiffs claim for punitive damages, the court in Holmes v. Bridgestone/Firestone, Inc.,
In discussing the requirements of section 768.72(1), the court in State of Wisconsin Investment Board v. Plantation Square Associates, Ltd.,
Because record evidence or proffer is specified in section 768.72(1), we reject the argument that the abuse of discretion standard applies to determine whether the trial court properly found that a reasonable basis was or was not established. *643 "Judicial discretion has been defined as: `The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.'" Canakaris v. Canakaris,
We recognize and honor the trial court's superior vantage point in assessing the credibility of witnesses and in making findings of fact. The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the trial court is in a superior position "to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses." Shaw v. Shaw,334 So.2d 13 , 16 (Fla.1976). When sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State,721 So.2d 1155 , 1159 (Fla.1998), cert. denied,526 U.S. 1102 ,119 S.Ct. 1583 ,143 L.Ed.2d 677 (1999). Appellate courts do not have this same opportunity.
Id. at 1034. For example, a trial judge has discretion in granting or denying a new trial because he or she presided over the proceedings and observed the witnesses as they testified and the evidence as it was presented by the parties. See Baptist Mem'l Hosp., Inc. v. Bell,
*644 However, when assessing and analyzing record evidence or a proffer, a trial court is in no better position than an appellate court to determine its sufficiency because the trial court is not called upon to evaluate and weigh testimony and evidence based upon its observation of the bearing, demeanor, and credibility of witnesses. See, e.g., Murray v. State,
We conclude, therefore, that discretion is not the standard that should apply when determining whether record evidence or a proffer is sufficient to establish a reasonable basis to plead a claim for punitive damages; rather, the finding of a reasonable basis under the statute requires a legal determination by the trial court that the requirements of section 768.72(1) have been met. See Henn v. Sandler,
The essence of the record evidence and the proffer establishes that as of the decedent's admission to Avante on January 15, 1999, she suffered from a number of maladies, including Alzheimer's disease and dementia; that the nursing staff knew that the decedent was at risk for weight loss, dehydration and malnutrition and was also informed that the decedent had difficulty swallowing and eating; that the nursing staff failed to monitor the decedent's food and fluid intake and to notice signs that she was choking on her food; that the decedent was also being overmedicated, which contributed to her array of problems; that within two weeks of her admission, the decedent had begun to lose weight and became dehydrated, contributing to her overall deterioration; the decedent had developed aspiration pneumonia as a result of choking on and inhaling her food; that although the decedent was treated for aspiration pneumonia, the nursing staff failed to prevent a recurrence or to even notice her difficulties in chewing and eating; that the nursing staff failed to develop a care plan to address these problems until March 2, 1999, by which time the decedent's weight had dropped over six pounds to eighty-eight pounds; that the decedent continued to suffer from malnutrition and dehydration and to inhale her food and nothing was really done to address her weight loss or eating problems prior to her discharge; that these problems *645 and the neglect was so extreme that by April 1, 1999, when the decedent was admitted to the hospital, she presented with lung congestion, fever, a decreased level of consciousness, clinical dehydration, a urinary tract infection, and sepsis with aspiration pneumonia; that tests were performed at the hospital that revealed that the decedent aspirated her food when she swallowed and that she needed a feeding tube; and that the decedent ultimately died of respiratory arrest secondary to aspiration pneumonia on April 6, 1999. We conclude that this evidence constitutes a reasonable showing of willful and wanton conduct on the part of the corporate employees that evinces a reckless disregard of and a conscious indifference to the life, safety, and rights of the residents exposed to its dangerous effects.
As to the vicarious liability of the corporate entities, the record evidence and proffer shows that the facility was not adequately staffed, which contributed to the inability to provide the decedent with proper care, and that numerous records regarding the decedent's care were incomplete, missing, or had been fabricated, which made assessment, treatment, and referrals of the decedent much more difficult. We believe that this showing established a reasonable basis to conclude that the corporate entities were negligent. Accordingly, Despain established a reasonable basis to plead a claim for punitive damages based on the theory of vicarious liability.
III. Conclusion
Based on the de novo standard of review applicable to motions to dismiss for failure to state a cause of action, we have viewed the record and the proffered evidence in the light most favorable to Despain and accept it as true. Analyzing this evidence in accordance with the standard that determines the level of misconduct that warrants an award of punitive damages and the corporate employer standard, we conclude that it formed a reasonable basis to allow Despain to plead a claim for punitive damages. Accordingly, we reverse the order denying Despain's motion to amend the complaint and remand for proceedings consistent with this opinion.
We believe it wise to protect the conclusion we reach from any interpretation suggesting that Despain is entitled to a punitive damage award. We, therefore, stress that we have merely determined Despain's right to plead a claim for punitive damages. Whether Despain will be able to prove entitlement to an award will depend on the jury's view of the evidence submitted or the trial court's disposition of a proper motion made prior to the jury's verdict.
REVERSED AND REMANDED.
THOMPSON and MONACO, JJ., concur.
NOTES
Notes
[1] We note that the pertinent provisions of the Florida Nursing Home Act found in chapter 400, Florida Statutes, were substantially amended in 2001. Specifically, the Legislature stated:
Notwithstanding any other provision of this act to the contrary, sections 400.0237, 400.0238, 400.4297, 400.4298, Florida Statutes, as created by this act, and section 768.735, Florida Statutes, as amended by this act, shall become effective May 15, 2001; shall apply to causes of action accruing on or after May 15, 2001; and shall be applied retroactively to causes of action accruing before May 15, 2001, for which no case has been filed prior to October 5, 2001.
Ch. 2001-45, § 62, Laws of Fla. Section 400.0237 was added to specifically provide for punitive damage awards under the Act. Because the cause of action in the instant case accrued in 1999 and suit was filed on May 5, 2000, the provisions of section 400.0237 are inapplicable. Accordingly, we will apply the provisions of the 1999 version of the Act.
[2] Section 400.023, Florida Statutes, was substantially amended in 2001 and subsection (5) was deleted. That amendment became effective after the cause of action in the instant case accrued. We will, therefore, apply the provisions of subsection (5) of the 1999 version of section 400.023.
[3] Section 768.72 was amended in 1999 as part of the 1999 Tort Reform Act to include subsection (3), which adopts a different standard. This amendment became effective on October 1, 1999. Ch. 99-225, § 22, Laws of Fla. Because the cause of action in the instant case accrued prior to that date, the new standard does not apply.
[4] As part of the 1986 Tort Reform Act, the Legislature enacted section 768.72, which imposed requirements that had to be complied with before a litigant was entitled to plead a claim for punitive damages. The Legislature substantially amended section 786.72 when it enacted the 1999 Tort Reform Act to add three new subsections. However, the provisions of the previous version of section 768.72 were included unchanged in subsection (1) of the amended version. Because the cause of action in the instant case accrued prior to enactment of the 1999 Tort Reform Act, we will apply the previous version of section 768.72. However, we cite to subsection (1) of section 768.72 because that is the version that appears in the bound volume of the 1999 Florida Statutes. We also note that section 768.735, Florida Statutes (1999), enacted as part of the 1999 Tort Reform Act, provides that the provisions of section 768.72(2)-(4), 768.725, and 768.73 do not apply in civil actions arising under chapter 400, Florida Statutes. § 768.735(1), Fla. Stat. (1999). Although section 768.735 is not applicable to the instant action either, we note with interest that even under its provisions, the requirements of subsection (1) of the amended version of section 768.72 do apply to claims for punitive damages under chapter 400 because they are not excluded by section 768.735.
[5] Section 400.023(7), Florida Statutes, similarly requires that "[d]iscovery of financial information for the purpose of determining the value of punitive damages may not be had unless the plaintiff shows the court by proffer or evidence in the record that a reasonable basis exists to support a claim for punitive damages." However, this subsection did not become effective until October 1, 1999, which was after the cause of action in the instant case accrued, so we will not apply it. Ch. 99-225, § 30, Laws of Fla.
[6] See Canakaris v. Canakaris,