IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
RUBY TUESDAY, INC. AND
CATHERINE ANDERSON,
Petitioners,
v. Case No. 5D17-1158
KAREN METALONIS,
Respondent.
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Opinion filed August 25, 2017
Petition for Certiorari Review
of Order from the Circuit Court
for Lake County, Mark J. Hill,
Judge.
Michael R. D'Lugo, of Wicker Smith
O'Hara McCoy & Ford, P.A., Orlando,
for Petitioners.
Kurt Zaner, of Zaner Harden Law, LLP,
Denver, CO, and Charles T. Douglas, of
Douglas & Hedstrom, P.A., Palatka, for
Respondent.
PER CURIAM.
Petitioners challenge an order compelling the production of an incident report
prepared after Respondent allegedly was injured when a chair collapsed at a Ruby
Tuesday restaurant. Although the trial court’s order compelling production of the incident
report does not provide the court’s reasoning, Respondent argued below that the report
was not made in anticipation of litigation and that she had a demonstrated need for the
report nevertheless.
The determination of whether an incident report was prepared in anticipation of
litigation turns on whether “the document was prepared in response to some event which
foreseeably could be made the basis of a claim in the future.” Marshalls of MA, Inc. v.
Minsal, 932 So. 2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of the
reporter in making the report might be relevant to this determination, it is by no means
dispositive because an objective standard applies. Here, the reporter testified that she
made the report in accordance with company policy to report incidents of injury to patrons.
The fact that the reporter did not personally foresee the potential claim and did not know
the purpose for the company policy did not negate a finding that the report was work
product. It was clear that the alleged injury was caused by an object in Petitioners’ control
and there was some evidence to suggest that Petitioners had prior knowledge of the
defective condition of the chair. Under the circumstances presented here, it was
foreseeable that the event might form the basis for a claim. Accordingly, the incident
report was protected work product.
As for Respondent’s argument regarding need, we conclude without elaboration
that the present record demonstrates that Respondent did not meet her burden on this
issue.
ORDER QUASHED.
COHEN, C.J., ORFINGER and TORPY, JJ., concur.
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