Weiner v. Moreno, 72--658
| Decision Date | 03 January 1973 |
| Docket Number | No. 72--658,72--658 |
| Citation | 271 So.2d 217 |
| Parties | Irwin J. WEINER and Mark R. Rubin d/b/a Weiner and Rubin, Appellants, v. Nelia MORENO, Appellee. |
| Court | Florida District Court of Appeals |
Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellants.
Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellee.
Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.
Defendants, Irwin J. Weiner and Mark R. Rubin, seek review of a summary judgment as to liability and a jury verdict on damages entered against them in a legal malpractice action.
Angelo Moreno was involved in a serious automobile accident in which he sustained numerous and severe injuries. Following the accident Moreno was taken to Jackson Memorial Hospital where he underwent emergency surgery. At the conclusion of the operation two surgical packs were left in Moreno's body and within approximately two weeks he died. The defendants were retained by Mrs. Moreno to bring a malpractice action against Dade County for wrongful death. The claim was filed, but was dismissed for want of prosecution after the statute of limitations had run. Thereafter the instant suit was commenced against defendants by the widow Mrs. Moreno for legal malpractice, the court below entered a summary judgment on liability and a trial was held on damages which resulted in a jury verdict in plaintiff's favor in the amount of $75,000. During the trial on damages, defendants were precluded from offering evidence as to the cause of Moreno's death. The trial judge ruled that this evidence went to the issue of the affirmative defense raised by defendants that the plaintiff's complaint was without merit and was filed by defendants primarily to force some settlement on plaintiff's hospital bill. On appeal defendants urge that decedent's death was a result of the severe injuries he received in the automobile accident, not the medical malpractice, and error is alleged due to the trial court's refusal to allow defendants the opportunity to present any evidence as to the proximate cause of Moreno's death.
It is fundamental law in Florida and throughout the United States that to recover on a negligence claim a plaintiff must prove a duty owed to plaintiff from defendant, a breach of that duty and an injury to plaintiff that was proximately caused by the breach. This basic legal premise is carried over unto an action against an attorney for legal malpractice. Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir.1916) is a landmark decision concerning legal malpractice cases and the rule it established has been adopted in approximately forty-five states. The rule established in Price is:
'In a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) The attorney's employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client.'
While Florida courts have not adopted the specific language of the Price rule, the substance of that rule is evident in various Florida cases. See Warwick, Paul and Warwick v. Dotter, Fla.App.1966, 190 So.2d 596; Suritz v. Kelner, Fla.App.1963, 155 So.2d 831; Suritz v. Kelner, Fla.App.1961, 134...
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