The opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
DANA D. JONES, as personal representative of the
Estate of Doscina C. Pendleton, deceased,
Appellant,
v.
MG BRADENTON SUBTENANT, LLC; RENEW MG TENANT, LLC;
RENEW MG TRS, LLC; MERRILL GARDENS, LLC; THE MERRILL
GROUP, INC.; KAREN ARWAY; and SHANNON ENLOW (as to
TRUEWOOD BY MERRILL, BRADENTON),
Appellees.
No. 2D2024-1971
December 3, 2025
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Manatee County; Edward Nicholas, Judge.
Joanna Greber Dettloff, A. Lance Reins and Kyle D. Ross of Mendes,
Reins & Wilander, PLLC, Tampa, for Appellant.
Jason M. Azzarone and Lindsay E. DeCarlo of La Cava, Jacobson &
Goodis, P.A., Tampa, for Appellees MG Bradenton Subtenant, LLC,
Renew MG Tenant, LLC, and Merrill Gardens, LLC.
No appearance for remaining Appellees.
SILBERMAN, Judge.
Dana D. Jones, as personal representative of the Estate of Doscina
C. Pendleton, appeals a nonfinal order denying his motion for leave to
amend his complaint to assert a claim for punitive damages against MG
Bradenton Subtenant, LLC; Renew MG Tenant, LLC; and Merrill
Gardens, LLC (hereinafter all jointly referred to as the MG Entities). We
affirm.
I. BACKGROUND
Mr. Jones's mother, Doscina Pendleton, was an elderly, terminally
ill woman under hospice care, residing in the memory care unit of
Truewood By Merrill from December 31, 2018, until she passed away on
December 25, 2020. Truewood is an assisted living facility. On the night
of her death, Ms. Pendleton was found to be unresponsive by Taylor
Vespucci, a medical technician working at Truewood.
Ms. Vespucci testified in her deposition that she helped Ms.
Pendleton to bed between 6 p.m. and 8 p.m. She then checked on her
one more time, and about "an hour or two" later, during her 10 p.m.
rounds, she found Ms. Pendleton unresponsive. Ms. Pendleton's knees
were on the floor and her head was lodged between the mattress and the
bedrail. A progress note indicated that the time of this discovery was
10:30 p.m.1
Mr. Jones's expert witness, Dr. Michael Gloth, opined in his
affidavit that when Ms. Pendleton's head became lodged between her
mattress and bedrail, it resulted in a fracture to her cervical spine which
substantially contributed to her death.
Mr. Jones filed a complaint alleging claims of negligence and
wrongful death against the assisted living facility and its owners,
operators, managers, and management company, Merrill Gardens, LLC
(referred to individually as the Management Company). Mr. Jones
1 The lack of certainty regarding the amount of time that had
passed between checks does not alter our analysis.
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thereafter sought permission from the trial court to amend his complaint
to add a claim for punitive damages against the MG Entities.
Mr. Jones argued that punitive damages were warranted because
the alleged understaffing at the facility resulted in Ms. Pendleton's
injuries and death. He asserted that Ms. Pendleton, who had a history of
multiple falls, was kept in a broken bed with unsafe bedrails, even
though a safer bed with no rails had been ordered and placed in her
room by hospice. He contended that this contributed to Ms. Pendleton's
injuries and death. He also argued that the facility had notice that it
lacked the ability to properly care for Ms. Pendleton and that nonetheless
one of the managers instructed concerned staff members that the facility
could provide the care that Ms. Pendleton needed. Finally, Mr. Jones
asserted that the facility never updated Ms. Pendleton's care plan to
address her risk for falls from bed or to implement any new
interventions.
The trial court conducted a hearing on Mr. Jones's motion to
amend his complaint. During the hearing, Mr. Jones relied on the
affidavits of two expert witnesses and the deposition testimony of several
other witnesses. The evidence addressed various topics including
staffing, training, the falls by Ms. Pendleton and other residents, the care
provided to Ms. Pendleton, communications among personnel at
Truewood, and communications with the Management Company. The
bulk of the evidence relating to the management staff at Truewood and
the Management Company involved staffing decisions.
In its order denying the motion for leave to amend, the trial court
determined that the key issue was "staffing, and whether the [MG
Entities] had sufficient staff on duty the night that Ms. Pendleton passed"
to be attentive to her care. The court discussed the extensive evidence
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that was before it and made the following findings: "there WAS the
[requisite] level of staff on duty the night of Ms. Pendleton's death and
the staff checked on her a reasonable amount of times immediately prior
to her death"; there was no reliable or credible evidence that the facility
was understaffed generally or on the night in question; there was "no
evidence that [the MG Entities] had the requisite actual knowledge of any
dangerous conditions which were consciously disregarded such that
punitive damages are warranted"; and "less than 2 hours had passed
between the time that a staff member last checked on her and when she
was found deceased. It cannot be reasonably argued that less than two
hours is not a reasonable amount of time between checks, even given
Ms. Pendleton's very poor prognosis."
II. STANDARD OF REVIEW
In reviewing the denial of a motion for leave to amend to add a
claim for punitive damages, we apply a de novo standard of review. Bric
McMann Indus. Inc. v. Regatta Beach Club Condo. Ass'n, 378 So. 3d 652,
654 (Fla. 2d DCA 2023); John Knox Vill. of Cent. Fla., Inc. v. Est. of
Lawrence, 379 So. 3d 1205, 1209 (Fla. 5th DCA 2024).
III. ANALYSIS
A. Assisted Living Facilities' Duty of Care
Florida law imposes several requirements on facilities like
Truewood. Any facility that claims to provide special care for people with
Alzheimer's disease or related disorders must "[h]ave a physical
environment that provides for the safety and welfare of the facility's
residents." § 429.178(3), Fla. Stat. (2023). "Staff must be qualified to
perform their assigned duties consistent with their level of education,
training, preparation, and experience." Fla. Admin. Code R. 59A-
36.010(2)(b). Although the Florida Administrative Code mandates
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minimum weekly staffing requirements for assisted living facilities, it
further provides that, regardless of minimum staffing requirements, all
facilities "must have enough qualified staff to provide resident
supervision." Fla. Admin. Code R. 59A-36.010(3)(a)-(b). Assisted living
facilities are also required to "provide care and services appropriate to the
needs of residents accepted for admission to the facility" and "must offer
personal supervision as appropriate for each resident." Fla. Admin. Code
R. 59A-36.007(1).
B. Pleading Requirements for Punitive Damages
When a plaintiff seeks to amend a complaint to add a claim for
punitive damages, a trial court should grant the request only when "there
is a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages." § 429.297(1); see also Fla. R. Civ. P. 1.190(f) ("A motion for
leave to amend a pleading to assert a claim for punitive damages shall
make a reasonable showing, by evidence in the record or evidence to be
proffered by the claimant, that provides a reasonable basis for recovery of
such damages.").
To recover punitive damages at trial, a plaintiff must prove by clear
and convincing evidence "that the defendant was personally guilty of
intentional misconduct or gross negligence." § 429.297(2). " 'Intentional
misconduct' means that the defendant had actual knowledge of the
wrongfulness of the conduct and the high probability that injury or
damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or
damage." § 429.297(2)(a). " 'Gross negligence' means that the
defendant's conduct was so reckless or wanting in care that it
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constituted a conscious disregard or indifference to the life, safety, or
rights of persons exposed to such conduct." § 429.297(2)(b).
"Punitive damages are a form of extraordinary relief for acts and
omissions so egregious as to jeopardize not only the particular plaintiff in
the lawsuit, but the public as a whole, such that a punishment—not
merely compensation—must be imposed to prevent similar conduct in
the future." Monsanto Co. v. Behar, 417 So. 3d 383, 387 (Fla. 3d DCA
2025) (quoting BDO Seidman, LLP v. Banco Espirito Santo Int'l., 38 So. 3d
874, 876 (Fla. 3d DCA 2010)); see also Publix Super Mkts., Inc. v. Levi,
399 So. 3d 1212, 1214 (Fla. 2d DCA 2024) (holding that to establish
gross negligence, "a plaintiff must reasonably show that a reasonable,
prudent person in the defendant's shoes would have known that the
conduct 'would probably and most likely result in injury to persons or
property' " (emphases omitted) (quoting Bridges v. Speer, 79 So. 2d 679,
682 (Fla. 1955))).
At the pleading stage, a plaintiff is not required to prove their
entitlement to punitive damages by clear and convincing evidence.
Deaterly v. Jacobson, 313 So. 3d 798, 801 (Fla. 2d DCA 2021). Instead,
there must only be an evidentiary showing that provides a reasonable
basis for the recovery of punitive damages. § 429.297(1).
C. Direct and Vicarious Liability for Punitive Damages
A corporation can be held liable for punitive damages if the plaintiff
establishes either vicarious liability or direct liability.
[V]icarious liability[] requires willful and wanton misconduct
on the part of the employee and some fault on the part of the
employer, not necessarily willful or wanton misconduct,
which foreseeably contributed to the plaintiff's injury. [Direct
liability] requires evidence of willful and wanton misconduct
by a managing agent or officer of the corporation.
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Beverly Enters.-Fla., Inc. v. Spilman, 661 So. 2d 867, 873 (Fla. 5th DCA
1995).
In order to hold a corporate employer vicariously liable for
punitive damages for the acts of its employees, the plaintiff
must establish: (1) fault on the part of the employee that rises
to the level of willful and wanton misconduct and (2) some
fault on the part of the corporate employer that rises to the
level of at least ordinary negligence.
Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 640-41 (Fla. 5th DCA
2005).
Pursuant to section 429.297(3), a plaintiff may recover punitive
damages under the theory of direct liability "for the conduct of an
employee or agent only if" the employee is guilty of intentional
misconduct or gross negligence and if one of the following requirements
is met:
(a) The employer, principal, corporation, or other legal entity
actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer,
principal, corporation, or other legal entity condoned, ratified,
or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
See also Fla. Power & Light Co. v. Dominguez, 295 So. 3d 1202, 1205
(Fla. 2d DCA 2019).
For direct or vicarious liability to be imposed, a plaintiff must show
evidence of culpable conduct by the "employer, principal, corporation, or
other legal entity," which includes an individual acting as a managing
agent. However, a managing agent "is more than just a manager or
midlevel employee." Id. at 1205.
D. Mr. Jones's grounds for seeking punitive damages
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As summarized above, Mr. Jones made several arguments in
support of his motion for leave to amend the complaint to assert a claim
for punitive damages. We have thoroughly considered the record and
each of the arguments made in the trial court and on appeal and
conclude that the trial court did not err in denying the motion.
We recognize that insufficient staffing may support a claim for
punitive damages. In Estate of Youngblood v. Halifax Convalescent
Center, Ltd., 874 So. 2d 596, 606 (Fla. 5th DCA 2004), the court held
that the award of punitive damages was a jury question where the
resident's mistreatment was connected to the nursing home operator's
"conscious decision to keep the facility chronically understaffed due to
budget problems."
The difficulty with Mr. Jones's argument is that the evidence simply
does not establish intentional misconduct or gross negligence that would
support the imposition of direct or vicarious liability on the MG Entities.
As the trial court found, the evidence "falls far short of the strict burden
imposed by the Florida [L]egislature to allow for a claim of punitive
damages against the corporate defendants here." The evidence does not
"reveal any specific conduct on the part of the corporate Defendants"
satisfying that burden.
Further, even if Truewood was understaffed, there was no evidence
that this contributed to Ms. Pendleton's injury and death on December
25. There were two employees working in the memory care unit that
evening, and there were about fifteen residents. Ms. Vespucci testified as
to the approximate time frame when she was helping and checking on
Ms. Pendleton before finding her deceased. There was no evidence that
the failure to have more staff violated rules relating to the facility, that
residents would be checked more often than every two hours if more staff
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was working, or that Ms. Pendleton's injury and death would not have
occurred if someone had checked on her earlier than when she was
discovered during the 10 p.m. rounds.
Mr. Jones's argument that the decision by the facility's
management to keep Ms. Pendleton in a broken bed with unsafe bedrails
warrants punitive damages similarly fails. There was no evidence that a
managing agent of the Management Company knew about the broken
bed or that the MG Entities had that information. See Carpenters Home
Ests., Inc. v. Sanders, 286 So. 3d 830, 832 (Fla. 2d DCA 2019)
(concluding that punitive damages were not appropriate where there was
"no admissible evidence indicating that any officer, director, or manager
of the nursing home defendants had 'condoned, ratified, or consented to'
any of the staff's actions or incidents of inaction").
While an employee testified that she complained to her boss
multiple times about the broken bed, her boss was the memory care
director. The memory care director reported to the resident care director
and that individual reported to the executive director at the facility. Even
if the memory care director was informed about the broken bed and
failed to have Ms. Pendleton placed in the new bed, his actions do not
support the direct or vicarious liability of the Management Company or
the MG Entities because he was, at best, a manager or midlevel
employee. See Fla. Power & Light Co., 295 So. 3d at 1205.
Further, there is no evidence that the memory care director passed
the information about the bed to the resident care director or the
executive director. Thus, even if one of those individuals could be
considered a managing agent, the evidence still does not establish that
they or the MG Entities had knowledge of and consciously disregarded
dangerous conditions that would warrant the potential imposition of
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punitive damages. This analysis equally applies to the argument that the
facility had notice that it lacked the ability to properly care for Ms.
Pendleton.
Finally, Mr. Jones alleged that the facility never updated Ms.
Pendleton's care plan to address her risk for falls or to implement any
new interventions. In Estate of Williams ex rel. Williams v. Tandem
Health Care of Florida, Inc., 899 So. 2d 369, 378 (Fla. 1st DCA 2005), the
court discussed a claim by the resident's estate "that staff and residents
had complained about insufficient staffing, that many other residents
had fallen, and that [the facility] took no steps to protect residents . . .
from falls." The resident's chart noted in several places that she was
confused, disoriented, and at a high risk for falls. Id. at 377-78.
Although the facility's "policy required all residents be placed in the
Falling-Stars program after a fall," the resident was not assigned to the
program initially or after her first fall. Id. at 378.
The First District held that a punitive damages claim was not
appropriate. Id. The court agreed that "although [the facility] was
negligent in failing to take measures which would reasonably ensure [the
resident's] protection, despite its notice that [she] had previously fallen at
the facility, it cannot be said that such behavior approached" clearly
egregious conduct or an indifference to its resident's safety. Id.
Here, although Truewood may have been negligent in not
implementing a new care plan, we cannot agree that this demonstrates a
conscious disregard or indifference to the life, safety, or rights of Ms.
Pendleton. Nothing in the record suggests that a managing agent or the
MG Entities knew about any failure by the facility to follow through with
service plans or knew that Ms. Pendleton's service plan was not
implemented.
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Although the circumstances surrounding Ms. Pendleton's death are
tragic, we agree with the trial court's conclusion that the evidence does
not reach the level necessary to allow a claim for punitive damages
against the MG Entities. Accordingly, we affirm the order denying Mr.
Jones's motion for leave to amend the complaint to assert a claim for
punitive damages.
Affirmed.
ROTHSTEIN-YOUAKIM and SMITH, JJ., Concur.
Opinion subject to revision prior to official publication.
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