Sack, Bonnie M; Weinger, Daniel S.

Punitive Damages Order Reverses

PUNITIVE DAMAGES – ORDER REVERSED

The Fourth DCA Reversed Interlocutory Order Granting Leave to Amend for Punitive Damages in Robertson v. Antoine (4D2025-0851). Our Appellate Partner, Bonnie Sack, and Appellate Director, Daniel Weinger, took advantage of the 2022 amendment to Florida Rules of Appellate Procedure 9.130, and sought immediate review of the trial court’s interlocutory order granting the plaintiff’s motion for leave to amend to add a claim for punitive damages. In this car versus forklift traffic accident case, the trial court granted leave to amend finding the defendant’s deposition testimony that he knew he was operating the forklift in violation of traffic laws supported a claim for punitive damages based on “intentional misconduct” under § 768.72(2)(a), Fla. Stat. On appeal, our appellate team successfully argued that plaintiff improperly plead her punitive damages claim as a stand-alone count and the evidence that the forklift operator violated traffic laws, without more, failed to demonstrate intentional misconduct or gross negligence under § 768.72, Fla. Stat. We argued that punitive damages are reserved for truly culpable conduct and the required level of negligence for punitive damages is equivalent to the conduct involved in criminal manslaughter, not here where the forklift operator was trying to perform his job as safely as possible. The majority held that the evidence only showed general intent to violate traffic laws and did not show the specific intent to knowingly engage in wrongful conduct with knowledge of the high probability of injury to the plaintiff. The dissent opined that knowingly operating a forklift against the flow of traffic could be considered “gross negligence” but agreed that the proffer did not support a finding of “intentional misconduct.” This published opinion sets precedent that punitive damages are reserved for outrageous conduct, malicious motive, or wrongful intention, not ordinary negligence. Our appellate team jumps into action to analyze the viability of an immediate appeal of an interlocutory order granting a plaintiff leave to amend to claim punitive damages.