Claire's Boutiques, Inc. v. Locastro ex rel. Locastro

• Decision Date: 25 April 2012
• Docket Number: No. 4D09-968,4D09-968
• Parties: CLAIRE'S BOUTIQUES, INC., Appellant, v. AMY LOCASTRO, individually and as parent and natural guardian of Alexis Locastro, a minor, Appellee.
• Court: Florida District Court of Appeals

CLAIRE'S BOUTIQUES, INC., Appellant,
v.
AMY LOCASTRO, individually and as parent and natural guardian of Alexis Locastro, a minor, Appellee.

No. 4D09-968

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

January Term 2012
April 25, 2012

ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND FOR CERTIFICATION

POLEN, J.

We grant appellant/cross-appellee, Claire's Boutiques, Inc. (Claire's) motion to consider this case en banc, and for certification. Upon en banc consideration, the following is the opinion of the court:

We are presented with two issues that are the subject of this appeal and cross-appeal: whether the trial court correctly denied a directed verdict for Claire's on the Locastros' negligence claim and whether the trial court correctly entered summary judgment for Claire's on its claim of contractual indemnity. We affirm the trial court's denial of Claire's motion for a directed verdict on the Locastros' negligence claim but reverse the trial court's entry of summary judgment on Claire's claim of contractual indemnity.

In August 2006, Amy Locastro took her thirteen-year-old daughter, Alexis, to Claire's to get Alexis's ear cartilage pierced. After the piercing, Alexis developed an infection in the cartilage of the ear that required hospitalization and extensive medical treatment. Alexis's ear has been permanently disfigured.

At trial, the Locastros introduced evidence of the ear piercing process used at Claire's. All employees watched a video prior to being permitted

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to pierce a customer's ears. The video did not provide any training on sterilization of equipment. Employees, however, were instructed as to the increased risks regarding piercing of cartilage and the longer healing period required. Finally, employees were required to receive a perfect score on a written test before being permitted to perform ear piercings. Stacy Smith, the loss prevention manager for Claire's, further testified as to the piercing procedure. She testified that employees would use gloves and alcohol wipes to clean a customer's ears and the ear piercing instrument. An employee would then mark the area to be pierced with a surgical pen, but Claire's employees were not required to sterilize the surgical pen between customers.

The employee who performed the piercing on Alexis, Erica Stokes, may or may not have had such training. No evidence of her training or testing was found in her employee file. No one at trial testified to training Stokes or seeing proof of such prior training. Ms. Locastro also testified to not seeing Stokes wash her hands prior to piercing her daughter's ear.

A disclosure form was signed by Ms. Locastro that included a release from liability provision, as well as an indemnity provision. Ms. Locastro agreed to the following provisions:

I am the parent or legal guardian of a minor under 18 years of age, and I hold only myself liable and hereby release and waive any and all claims that I or the minor may make as a result of this ear piercing. I further agree that I shall indemnify and hold Claire's harmless with respect to any and all claims that I or my minor child may make as a result of this ear piercing, even if due to the sole or joint negligent acts or omissions of Claire's Boutiques, Inc., its agents, or employees.

In the same form, Ms. Locastro acknowledged the aftercare requirements of a cartilage piercing, although Alexis testified that she was not instructed about the care for her piercing after the procedure. Ms. Locastro and Alexis both testified to cleaning the ear cartilage around the piercing for days after the piercing. Although there was some redness and swelling, Ms. Locastro did not notice anything unusual until Alexis complained about pain in the ear at a doctor's office nine days after the piercing. Alexis's doctor, Dr. Jantunen, prescribed an antibiotic for the infection. A few days later, with the pain continuing, Dr. Jantunen instructed Alexis to continue taking antibiotics. After a third visit, Dr. Jantunen referred Alexis to a specialist. The specialist immediately sent her to the emergency room, where the wound in her ear was drained due

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to a severe infection. Surgery was performed on her ear, and Alexis remained in the hospital for eight or nine days. Alexis testified to having no feeling in the top of the ear. At trial, there was medical testimony that Alexis suffered permanent cartilage deformities as a result of the infection.

At trial, Dr. Jantunen's deposition testimony was entered into evidence. He stated that it was inappropriate for Claire's to reuse a surgical marking pen without having it sterilized and that it was negligent for employees to pierce ears without washing their hands. Dr. Jantunen felt, at a minimum, Claire's should have had a hand-washing sink at the piercing station. Dr. Jantunen concluded that the infection and resulting damage was "most probably caused by the ear piercing" within a reasonable degree of medical probability, and Claire's negligence made the infection more likely to occur.

Dr. Nachman, a pediatric infectious disease specialist, testified that she did not believe that Alexis's infection could have been caused by the surgical marking pen. Likewise, she believed the infection could not have been caused by hand contamination since the type of bacteria causing Alexis's infection does not "colonize on your hands." Moreover, this type of bacteria would have recolonized the area within one day, so the fact that Alexis's infection did not manifest for several days indicates the bacteria came from another source. Dr. Nachman concluded that Claire's had "nothing to do" and was not associated "in any way" with Alexis's infection.

After a trial, the jury returned a verdict for Alexis, finding Claire's 75% negligent. The jury awarded Alexis $7,012 in past medical expenses, $72,987 in past pain and suffering and $20,000 in prospective damages. The final judgment against Claire's was for $69,740. The trial court denied a motion for new trial on the negligence claim.

Separate from the trial of the negligence claim, Claire's filed a cross-motion for summary judgment to compel Ms. Locastro to indemnify Claire's for the negligence claim pursuant to the agreement. Ms. Locastro also filed a motion for summary judgment, claiming that she was immune from liability because she did not have liability insurance and parents are "immune from suit by their children and could be held liable only to the extent of available liability coverage." The trial court found the indemnity provisions valid against Ms. Locastro in her individual capacity, but not in her capacity as Alexis's mother, and entered a judgment against Ms. Locastro for $200,274, inclusive of defense costs, attorney's fees, and the judgment against Claire's. From

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the denial of the motion for directed verdict and motion for new trial on the claim of negligence and the summary judgment on the enforcement of the indemnity provision, this appeal ensues.

A trial court's order on a motion for a directed verdict is to be reviewed de novo on appeal. Dep't of Children & Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006). A directed verdict is improper if "any evidence" will support a verdict for the non-moving party. Id. The trial court should direct a verdict in favor of the defendant only "where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference." McCain v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992).

In the present case, Claire's urges that a directed verdict should have been granted since there was insufficient evidence that its actions "caused" the infection and resulting injuries. In negligence cases, like the present one, "Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So. 3d 1035, 1047 n.18 (Fla. 2009).

The Florida Supreme Court in Gooding cited to Professor Prosser as to the plaintiff's burden of proving causation:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.

Gooding, 445 So. 2d at 1018 (quoting William Prosser, Law of Torts § 41 (4th ed. 1971)). "In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome." Id. at 1020. Expert testimony is not an absolute requirement to establish causation. See Atkins v. Humes, 110 So. 2d 663, 666 (Fla. 1959) ("[J]urors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony . . . ."); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So. 2d 200, 202-03 (Fla. 4th DCA 1995) ("[T]he opinion of an expert should be excluded where facts testified to are of a kind that do not...