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Michael B. Kornhauser, Esq.

Fuerst Ittleman David & Joseph

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mkornhauser@fidjlaw.com

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  • Michael B. Kornhauser

Limiting a Plaintiff’s Use of Nursing Home Policies and Procedures to Establish Negligence at Trial

Updated: Nov 12, 2019



In just about every nursing home negligence lawsuit, the Plaintiff will inevitably request a copy of the nursing home’s policies and procedures. In this blog, I discuss possible limits on a Plaintiff’s use of those policies and procedures to establish negligence at trial.

Let’s first lay the groundwork with two cases:

First, in Wal Mart Stores, Inc. v. Wittke, 202 So. 3d 929 (Fla. 2d DCA 2016), the Plaintiff slipped and fell at a Walmart. At the conclusion of trial, the jury returned a verdict in favor of Walmart. Id. The Plaintiff then filed a motion for a new trial. Id. The trial judge granted the motion and set aside the jury verdict. Id. In reaching its conclusion, the trial court stated that “the evidence presented to the jury during the trial clearly demonstrated that [the Plaintiff’s] injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Id. at 930. In essence, the trial court equated the standard of care, on the one hand, with compliance with internal policies and procedures on the other hand, effectively determining that a breach of Walmart’s policies and procedures was a per se breach of the standard of care. Id. Walmart appealed. Id. On appeal, the court found that the trial court’s analysis was in error. Id. In reaching its conclusion, the appellate court held as follows:


‘[A] party’s internal rule does not itself fix the legal standard of care in a negligence action...’Mayo v. Publix Super Mkts., Inc., 686 So.2d 801, 802 (Fla. 4th DCA 1997); see also Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 937 (Fla.2004) (‘While a written policy or manual may be instructive in determining whether the alleged tortfeasor acted negligently in fulfilling an independently established duty of care, it does not itself establish such a legal duty vis-a-vis individual members of the public.’); Dominguez v. Publix Super Mkts., Inc., 187 So.3d 892, 895 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016) (‘[I]nternal safety policies do not themselves establish the standard of care owed to the plaintiff.’); Steinberg v. Lomenick, 531 So.2d 199, 200 (Fla. 3d DCA 1988) (‘[T]he existence of an internal rule does not itself fix the standard of care.’). Internal policies and procedures may be admissible if they are relevant to the standard of care, Mayo, 686 So.2d at 802; however, ‘evidence that the rule was violated is not evidence of negligence unless and until the

jury finds...that the internal rule represents the standard of care,’ Steinberg, 531 So.2d at 201 (second emphasis added)…


Id. at 930–31.


Second, in Mayo v. Publix Super Markets, Inc., 686 So. 2d 801 (Fla. 4th DCA 1997), a case cited by Wittke, the Plaintiff sued Publix after falling from a scale present near the entrance to the store. The central issue at trial was whether Publix was negligent in its placement of the scale. Id. The Plaintiff sought to introduce evidence at trial of Publix’s manager’s procedures manual to demonstrate what constituted reasonable care in the placement of the scale. Id. At the pre-trial hearing, the trial court granted Publix’s motion in limine to preclude the policies and procedures manual from evidence at trial. Id. Ultimately, the jury returned a verdict in favor of Publix. Id. The Plaintiff appealed, taking exception with the Court’s ruling on the motion in limine. Id. In affirming the verdict, the appellate court wrote to clarify its position as it related to internal operating manuals:


[A] party’s own internal operating manuals are admissible if relevant to the issues raised. We reiterate, however, as we stated in [K-Mart Corp. v. Kitchen, 662 So.2d 977 (Fla. 4th DCA 1995)], that a party's internal rule does not itself fix the legal standard of care in a negligence action, and that the party is entitled to appropriate jury instructions to that effect.


We further emphasize that the manual, or portions thereof proffered for evidence at trial, must nonetheless meet the test of relevancy. In the instant case, Appellant has not sustained his burden of showing that the internal policies and procedures set forth in the manager’s manual were relevant to the issue of reasonable care [raised at trial]

Therefore, we hold that the trial court did not err in excluding the manual from evidence at trial on the basis of relevancy.

Id. at 802.

What this Means for Nursing Homes

While neither Wittke nor Mayo, involved allegations of nursing home negligence, they certainly involved allegations of negligence and, therefore, cannot be ignored in the nursing home litigation context. Therefore, nursing homes must be cognizant of the above-referenced line of cases and should consider the following when faced with a Plaintiff’s attempt to introduce a nursing facility’s policies and procedures at trial:

  1. It’s important to remember that policies and procedures do not, in and of themselves, establish the standard of care. In other words, evidence that a policy was violated is not evidence of negligence unless, and until, a jury finds that the internal policy represents the standard of care.

  2. Prior to trial, nursing facilities should move in limine to preclude the introduction of any policies and procedures that veer from the central issues of the case. The reason being: A court may exclude policies and procedures based upon relevancy.

  3. At trial, a nursing facility should pay close attention to any testimony regarding the facility's policies and procedures, coupled with any attempt to move such policies and procedures into evidence, where the Plaintiff fails to first lay the foundation that such policies and procedures are reflective of an independent standard of care.

  4. Finally, a nursing facility should oppose any jury instruction which states (or implies) that a violation of a policy or procedure, without more, is evidence of negligence.

Among other things, Michael B. Kornhauser, Esq. represents skilled nursing facilities in negligence and wrongful death cases. If you have any questions, feel free to contact him.

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