Opinion
No. 1D20-2206
04-20-2022
Patrice COHEN, Appellant, v. AUTUMN VILLAGE, INC., a Florida corporation, Appellee.
Terry D. Bork of the Law Office of Terry D. Bork, Jacksonville; Gerald Wilkerson of Gerald Wilkerson, P.A. f/k/a the Law Firm of Gerald Wilkerson, P.A., Jacksonville; and Richard C. Gorey of Richard C. Gorey, P.A. f/k/a the Law Firm of Richard C. Gorey, P.A., Ponte Vedra Beach, for Appellant. Thomas A. Valdez and Vilma Martinez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa; Robindra N. Khanal and Christopher Edward Brown of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Appellee.
Terry D. Bork of the Law Office of Terry D. Bork, Jacksonville; Gerald Wilkerson of Gerald Wilkerson, P.A. f/k/a the Law Firm of Gerald Wilkerson, P.A., Jacksonville; and Richard C. Gorey of Richard C. Gorey, P.A. f/k/a the Law Firm of Richard C. Gorey, P.A., Ponte Vedra Beach, for Appellant.
Thomas A. Valdez and Vilma Martinez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa; Robindra N. Khanal and Christopher Edward Brown of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Appellee.
Ray, J.
Patrice Cohen seeks review of a final judgment dismissing her complaint against Autumn Village, Inc., with prejudice based on her failure to comply with the pre-suit requirements and statute of limitations in the Assisted Living Facilities Act ("ALFA"), sections 429.01–.55, Florida Statutes (2017). Because the trial court properly determined that the ALFA governed Cohen's negligence claim, we affirm.
Cohen, a resident of Autumn Village's assisted living facility, filed her complaint in January 2020. She alleged that in March 2017, an employee of the assisted living facility placed a food tray in front of a resident's door. The cup on the tray spilled, creating a puddle on the walkway. Cohen slipped in the puddle and sustained injuries because of her fall. She asserted that Autumn Village was negligent in allowing the dangerous condition to exist and in failing to train employees not to leave food trays near the walkway.
Autumn Village moved to dismiss the complaint. It argued that the ALFA provides the exclusive remedy for suits brought by assisted living facility residents seeking damages for personal injuries caused by negligence and that Cohen had failed to comply with the ALFA's pre-suit requirements and its two-year statute of limitations. In response, Cohen disputed that her claim was brought under the ALFA. In her view, the ALFA only covers claims arising from abuse, neglect, or deficient care in connection with the provision of professional medical services; it does not apply to a common-law negligence claim based on a slip and fall.
After hearing argument from both parties, the trial court granted Autumn Village's motion to dismiss. This timely appeal followed.
An appellate court reviews both a ruling on a motion to dismiss and an issue of statutory interpretation de novo. Agency for Health Care Admin. v. Best Care Assurance, LLC , 302 So. 3d 1012, 1015 (Fla. 1st DCA 2020). In determining the meaning of a statute, if the language of the statute is " 'clear, unambiguous, and addresses the matter at issue,’ then our task is at an end." Advisory Op. to Governor re Implementation of Amend. 4, the Voting Restoration Amend. , 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Graham v. Haridopolos , 108 So. 3d 597, 603 (Fla. 2013) ). Under this supremacy-of-text approach, "[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means." Id. (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). "Context is a primary determinant of meaning," and the "entirety" of the law at issue "provides the context for each of its parts." Scalia & Garner, Reading Law at 167.
Turning to the law before us, the ALFA's express purpose is to ensure that assisted living facilities create a "homelike" atmosphere for "elderly persons and adults with disabilities," emphasizing independence, dignity, and privacy while providing the services necessary for "the health, safety, and welfare of residents ...." § 429.01(2), Fla. Stat. "[A]ssisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities." Id. To this end, services may be provided by "facility staff, volunteers, family, or friends, or through contractual arrangements with a third party." § 429.02(4), Fla. Stat. The ALFA also contemplates the use of "[l]imited nursing services," to be "performed by a person licensed under part I of chapter 464." § 429.02(14), Fla. Stat.
The ALFA includes a "resident bill of rights" geared toward accomplishing its goals. § 429.28, Fla. Stat. Among the rights afforded to residents is the right to "a safe and decent living environment, free from abuse and neglect." § 429.28(1)(a), Fla. Stat.
The ALFA also authorizes civil actions against assisted living facilities and contains the following exclusive remedy provision:
Sections 429.29–429.298 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a resident arising out of negligence or a violation of rights specified in s. 429.28. This section does not preclude theories of recovery not arising out of negligence or s. 429.28 which are available to a resident or to the agency.
§ 429.29(1), Fla. Stat. Claims that fall within this provision are subject to certain limitations. For instance, before filing a claim for a violation of a resident's rights or a claim for negligence, a claimant alleging injury to or the death of a resident must comply with pre-suit requirements, including providing notice to the prospective defendant. § 429.293(2), Fla. Stat. Additionally, such claims are subject to a two-year statute of limitations. § 429.296(1), Fla. Stat.
Here, though Cohen's claim against Autumn Village undeniably sounds in negligence, she argues that the exclusive remedy provision of the ALFA does not apply to a common-law slip-and-fall case like hers. Instead, she contends that it was meant to cover only professional negligence claims. She therefore asserts that she is not subject to the pre-suit notice requirement or the two-year statute of limitations. We disagree.
To begin, the plain and unambiguous language of the exclusive remedy provision applies to cases for recovery of damages for the personal injury or death of a resident "arising out of negligence or a violation of resident's rights. § 429.29(1), Fla. Stat. Based on this statutory text alone, there is simply no basis to limit its reach to claims arising solely from professional negligence.
Reading the exclusive remedy provision in context with other portions of the ALFA reinforces this interpretation. Notably, section 429.293(1)(a), Florida Statutes, defines a "[c]laim for residents’ rights violation or negligence" to mean "a negligence claim alleging injury to or the death of a resident arising out of an asserted violation of the rights of a resident under s. 429.28 or an asserted deviation from the applicable standard of care ." (emphasis added). Section 429.29(3), Florida Statutes, then provides that "[i]n any claim brought pursuant to this section, a licensee, person, or entity shall have a duty to exercise reasonable care. Reasonable care is that degree of care which a reasonably careful licensee, person, or entity would use under like circumstances." The language of these provisions encapsulates common-law negligence, including the traditional common-law standard of care. See Kohl v. Kohl , 149 So. 3d 127, 131 (Fla. 4th DCA 2014) ("As developed by the common law, a cause of action for negligence arises where one's ‘failure to use that degree of care which a reasonably careful person would use under like circumstances’ causes injury." (quoting London v. Atl. Mut. Ins. Co. , 689 So. 2d 424, 425 (Fla. 4th DCA 1997) )).
Comparison of the ALFA to the Florida Medical Malpractice Act ("FMMA"), Chapter 766, Florida Statutes, provides a helpful contrast. The FMMA applies to "medical negligence" or "medical malpractice" claims (i.e., professional negligence claims) arising out of the "rendering of, or the failure to render, medical care or services." Simmons v. Jackson Mem'l Hosp. , 253 So. 3d 59, 61 (Fla. 3d DCA 2018) (quoting § 766.106(1)(a), Fla. Stat.). Under the FMMA,
the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
§ 766.102(1), Fla. Stat. (2017). The FMMA includes guidelines for expert testimony about the professional standard of care. § 766.102(5) – (12), Fla. Stat. (2017).
Through the FMMA, the Florida Legislature has shown that it knows how to limit an act to professional negligence claims. But guidelines for expert testimony are absent from the ALFA. Professional standards are also absent from the ALFA with one notable exception. Section 429.29(4) provides:
In any claim for resident's rights violation or negligence by a nurse licensed under part I of chapter 464, such nurse shall have the duty to exercise care consistent with the prevailing professional standard of care for a nurse. The prevailing professional standard of care for a nurse shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar nurses.
This language closely mirrors the language from the FMMA. Thus, even within the ALFA itself, when the Legislature intended for a professional standard to apply, it expressly provided a professional standard of care.
In sum, the clear and unambiguous language of the ALFA shows that the Legislature intended for a common-law negligence claim like Cohen's to be brought within the framework of the act. Because Cohen failed to comply with the ALFA's pre-suit requirements and its two-year statute of limitations, we affirm the order below dismissing her complaint with prejudice.
AFFIRMED .
Osterhaus and Nordby, JJ., concur.