         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.

________________________________/

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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