Trials & Litigation

Lawyer who lost case because of bathroom break wins an appeal

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Occupied bathroom.

A Florida judge should not have barred a lawyer from arguing a summary judgment motion after his bathroom break made him late for the hearing, a state appeals court has ruled.

Florida’s Fourth District Court of Appeal ruled for lawyer Jeff Tomberg of Boynton Beach in a Nov. 16 opinion (PDF) that cited due process concerns, report the Daily Business Review (sub. req.) and Local 10. The court ruled that a Palm Beach County judge abused his discretion when he refused to allow Tomberg to argue the motion and granted summary judgment to his opponent.

Tomberg had arrived for the hearing at the scheduled time, but left to use the restroom when he saw that the defense lawyer wasn’t present, according to the decision. When Tomberg returned to the courtroom a few minutes later, the judge and defense lawyer were wrapping up the hearing. The judge noted that Tomberg had not filed a memorandum in response to the defense’s summary judgment motion, and then granted judgment to the defendant, Winn-Dixie Stores.

Tomberg represented plaintiffs Dorothy and William Natiello in a slip-and-fall suit against the grocery store. The grocery store said it was entitled to summary judgment because Dorothy Natiello was unable to identify the substance that caused her alleged fall, according to the Daily Business Review. Tomberg planned to argue the company had failed to exclude all reasonable inferences of liability and the case should not be dismissed.

The appeals court cited several reasons why the trial judge abused his discretion. Tomberg was only a few minutes late, the appeals court said, and “offered a patently reasonable explanation for his tardy appearance.” The court also said there was no showing of prejudice or willful misconduct. The three-judge panel reversed the trial judge’s decision and remanded the case for a new summary judgment hearing.

Tomberg is a board-certified civil trial lawyer who has practiced law for 39 years. He once won Ohio’s largest jury verdict for the wrongful death of a child.

Tomberg told the Daily Business Review he figured he had time for the bathroom break, and was surprised to see the hearing wrapping up when he returned. “There’s an unfortunate irony here that this is what I’ll be known for,” he told the publication.

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