IN THE SUPREME COURT OF FLORIDA Case No. SC03-131 L.T. No. 3D00-3278 A.M. BEST ROOFING, INC., Petitioner, v. RICHARD KAYFETZ, Respondent. ON NOTICE TO INVOKE DISCRETIONARY JURISDICTION TO REVIEW DECISION OF THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT OF FLORIDA JURISDICTIONAL BRIEF OF PETITIONER Submitted by: Scott A. Forman, Esquire Matthew S. Kish, Esquire Vernis & Bowling of Miami, P.A. 1680 N.E. 135th Street Miami, FL 33181 Phone: (305) 895-3035 Facsimile: (305) 892-1260 Counsel for Petitioner
TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES... ii PREFACE...iv JURISDICTIONAL STATEMENT...iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 I. THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND VARIOUS DISTRICT COURTS, BY NOT ALLOWING EXPERT TESTIMONY CONCERNING THE APPLICATION OF BUILDING CODE REQUIREMENTS TO FACTS OF CASE.... 5 II. THE DECISION BELOW DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND VARIOUS DISTRICT COURTS, BY NOT REQUIRING RESPONDENT TO PROVE ALL ULTIMATE FACTS SUPPORTING HIS NEGLIGENCE CAUSE OF ACTION.... 8 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 12 APPENDIX TO JURISDICTIONAL BRIEF OF PETITIONER... 13 i
TABLE OF AUTHORITIES Cases: Jackson v. Sweat, 783 So.2d 1207 (Fla. 1st DCA 2001)... 4, 9 3-M Corp.-- McGhan Medical Reports Div. v. Brown, 475 So.2d 994 (Fla. 1st DCA 1985)... 7 Angrand v. Key, 657 So.2d 1146 (Fla.1995)... 6 Brogdon v. Brown, 505 So.2d 19 (Fla. 3d DCA), review denied, 513 So.2d 1060 (Fla.1987)... 6 Cadillac Fairview of Fla., Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla.1985)... 6 Edward J. Seibert, A.I.A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass'n, Inc., 573 So.2d 889 (Fla. 2d DCA 1990)... 7 Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953)... 4, 5, 9, 10 Gifford v. Galaxie Homes, Inc., 223 So.2d 108 (Fla. 2d DCA), cert. denied, 229 So.2d 869 (Fla.1969)... 7 Green v. Sanson, 41 Fla. 94, 25 So. 332 (Fla.1899)... 5, 9, 10 Gurganus v. State, 451 So.2d 817 (Fla.1984)... 7 Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976)... 4, 6 ii
Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978)... 7 Libby v. State, 540 So.2d 171 (Fla. 2d DCA 1989)... 7 Noa v. United Gas Pipeline Co., 305 So.2d 182 (Fla.1974)... 4, 6 Noel v. M. Ecker & Co., 445 So.2d 1142 (Fla. 4th DCA 1984)... 4, 5, 9, 10 Rankin v. Colman, 476 So.2d 234 (Fla. 5th DCA 1985)... 4, 9 Simko v. P.V.M. Associates, Inc., 526 So.2d 218 (Fla. 4th DCA 1988)... 4, 9 Town of Palm Beach v. Palm Beach County, 460 So.2d 879 (Fla.1984)... 4, 6, 7 Other: Art. V, 3(b)(3), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv)... 8, 10 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)... 3, 8, 10 South Florida Building Code... 1-3, 5-8 iii
PREFACE The Petitioner, A.M. BEST ROOFING, INC., was the Appellee in the District Court of Appeal for The Third District of Florida. It shall be referred to in this brief as the Petitioner or by name. The Respondent, RICHARD KAYFETZ, was the Appellant in the district court. He shall be referred to in this brief as the Respondent or by name. The October 17, 2002 Corrected Opinion of the district court, 832 So.2d 784 (Fla. 3d DCA 2002), and the Dec. 20, 2002 denial of rehearing and rehearing en banc are appended to this brief. References to the Corrected Opinion are by Southern Reporter Second page numbers. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review the decision rendered by the Third District Court of Appeal in this matter, because the lower court s opinion expressly and directly conflict[s] with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V, 3(b)(3), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv). iv
STATEMENT OF THE CASE AND FACTS Respondent s roof was damaged during Hurricane Andrew. Before repairing his roof, Respondent obtained his own building permit, which allowed him to act as the general contractor and hire subcontractors to work directly for him. Upon obtaining the permit, Petitioner received a set of applicable rules propounded by the Miami-Dade County Building Department. Those rules expressly notified Respondent that, as the permit holder, he was personally responsible under the South Florida Building Code ( Building Code ) for keeping his job-site in a safe condition. Thereafter, Respondent sub-contracted with Petitioner to work on his roof. After Petitioner s worker s arrived to work on the roof, Respondent watched the crew place a ladder against his house. He then watched four (4) to five (5) crew members climb up a ladder to the roof without incident. Respondent then followed Petitioner s workers up the ladder onto the roof to videotape the work as it was being performed. Later, when Respondent attempted to descend from the roof carrying the video-recorder he was using, he fell and was injured. 832 So.2d at 785. Respondent brought a negligence action against Petitioner, alleging that it was negligent for failing to properly position, secure and maintain the ladder. He specifically argued that the rubber footings on the base of the ladder were excessively worn, rendering the ladder unreasonably dangerous for its intended use. After a trial, 1
and upon reviewing the instructions proposed by both parties as well as applicable case law, the trial court provided the jury with an instruction relating to the use of the ladder as a dangerous item. The jury was also read the standard negligence instruction and an instruction as to comparative negligence. After a jury verdict in favor of Petitioner, the trial court entered a final judgment accordingly. Id. at 786. Respondent appealed the decision to the Third District Court of Appeal, essentially arguing three (3) points: (1) the trial court erred by not allowing Respondent s expert to testify the ladder s base pads were well worn and Petitioner was careless or stupid; (2) the trial court should not have allowed Petitioner s expert to testify concerning the significance of Respondent pulling a construction permit; and (3) the trial court should not have given the jury instruction relating to the use of the ladder as a dangerous item. The district court did not credit Respondent s first argument. 832 So.2d at 785. It did, however, accept the second argument, holding that regardless of the responsibilities Plaintiff had under the [Building Code], Defendant s expert should not have been permitted to instruct the jury as to how the rules set out in the code applied to the facts before them. 832 So.2d at 786. The court also accepted Respondent s final argument, holding the trial court s instruction relating to the use of the ladder as a dangerous item should not have been given, because this was a product liability 2
instruction and this was not a product liability case. Id. Based on that reasoning, on August 7, 2002, the district court reversed the final judgment and remanded the case for a new trial. On December 20, 2002, Petitioner s Motions for Rehearing, Rehearing en banc, and Certification of Conflict were denied. The lower court s Mandate issued on January 7, 2003. On January 21, 2003, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(iv), Petitioner filed a timely Notice to Invoke Discretionary Jurisdiction of the Supreme Court of Florida. SUMMARY OF THE ARGUMENT First, the lower court found the testimony of Petitioner s expert witness to be inadmissable, based on the court s presumption that, by testifying regarding the applicability of the Building Code, Petitioner s expert also expressly instructed the jury as to the issue of legal liability. This ruling creates new and conflicting law, by holding that experts can not testify as to the applicability and requirements of construction standards, building codes, and various other safety regulations. However, this is exactly the reason why such expert testimony is allowed to assist a trier of fact in understanding technical issues as they apply to the facts of a particular case. The expert testimony in this case was no different than in other cases where this Court allowed such testimony - the expert testified as to requirements of industry safety regulations, as well as how and why they applied in this case. The expert did not 3
render an ultimate opinion as to liability under those regulations. The lower court merely presumed as much, in conflict with the existing rule that experts should only be prevented from expressing their conclusions when they tell a jury how to decide a case, but do not help it to understand technical issues as they relate to that case. See, e.g., Town of Palm Beach v. Palm Beach County, 460 So.2d 879, 882 (Fla.1984); Noa v. United Gas Pipeline Co., 305 So.2d 182, 185 (Fla.1974); Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976). Second, the lower court also felt a jury instruction directly relating to facts alleged by Respondent that Petitioner was negligent by allowing Respondent to use an unreasonably dangerous ladder should not have been allowed because it was a product liability instruction and this was not a product liability case. 832 So.2d at 786. However, this ruling is both illogical and contrary to decisions of this Court and various Florida court of appeals. See, e.g., Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953); Jackson v. Sweat, 783 So.2d 1207 (Fla. 1st DCA 2001); Simko v. P.V.M. Associates, Inc., 526 So.2d 218 (Fla. 4th DCA 1988); Rankin v. Colman, 476 So.2d 234 (Fla. 5th DCA 1985); Noel v. M. Ecker & Co., 445 So.2d 1142 (Fla. 4th DCA 1984). The lower court s simplified view disregards the established rule set forth by 4
this Court concerning the use of dangerous items, which states that persons with knowledge of potential dangers owe a duty to warn of, or to furnish protection against, those dangers to those without notice of same. See Green v. Sanson, 41 Fla. 94, 25 So. 332 (Fla.1899); Robinson, 68 So.2d at 411; Noel, 445 So.2d at 1144. ARGUMENT I. THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND VARIOUS DISTRICT COURTS, BY NOT ALLOWING EXPERT TESTIMONY CONCERNING THE APPLICATION OF BUILDING CODE REQUIREMENTS TO FACTS OF CASE. The lower court decided that Petitioner s expert should not have been allowed to testify concerning the significance, under the Building Code, of Respondent obtaining his own building permit. The court opined that, regardless of the responsibilities Plaintiff had under the [Building Code], Defendant s expert should not have been permitted to instruct the jury as to how the rules set out in the code applied to the facts before them. 832 So.2d at 786. However, this ruling by the lower court misinterprets, and is in direct conflict with, numerous decisions of this Court and other Florida district courts of appeal to the contrary. Specifically, this Court has often allowed expert testimony for the purpose of presenting a clearer understanding of engineering standards and/or safety regulations, such as the Building Code, to assist a trier of fact in understanding the evidence or 5
in determining a fact in issue." See Angrand v. Key, 657 So.2d 1146 (Fla.1995); Brogdon v. Brown, 505 So.2d 19, 20 (Fla. 3d DCA), review denied, 513 So.2d 1060 (Fla.1987); Cadillac Fairview of Fla., Inc. v. Cespedes, 468 So.2d 417, 421 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla.1985); Town of Palm Beach, 460 So.2d at 882; Noa, 305 So.2d at 185; Krispy Kreme, supra (where applicability of municipal ordinance dependent upon disputed facts, expert testimony was allowed which would determine whether requirements of Standard Building Code applied or not). In this case, Petitioner s expert addressed the issue of whether or not Respondent, as the holder of a building permit, was subject to certain requirements set forth in the Building Code. He explained how and why those provisions applied in this case. He also confirmed how, and explained why, permit holders typically receive a set of rules propounded by the Miami-Dade County Building Department advising them of their responsibilities as a permit holder. As such, the testimony of Petitioner s expert concerning the significance of Respondent pulling a construction permit merely assisted the jury in understanding technical issues surrounding the requirements and applicability of the Building Code. However, in contrast to other decisions by this Court, the lower court presumed that, by testifying regarding the applicability of the Building Code, Petitioner s expert instruct[ed] the jury on the issue of legal liability in this case. 832 So.2d at 786, fn.2 6
(emphasis supplied). 1 This presumption conflicts with the general rule that experts should only be prevented from expressing their conclusions when they tell the jury how to decide the case, but do not help the jury to determine what occurred." Town of Palm Beach, 460 So.2d at 882. The expert witness in this case testified only as to the requirements of the Building Code, how they applied to Respondent, and why. He did not render an ultimate opinion as to whether or not Respondent was in any way liable under those provisions or general tort law. As deftly explained by this Court: While this is to some degree a matter of semantics, we find the distinction necessary. Id. Indeed, this is not a new principle, but one which has been enumerated by this Court and various district courts in many cases. See, e.g., Edward J. Seibert, A.I.A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass'n, Inc., 573 So.2d 889, 891-892 (Fla. 2d DCA 1990); Libby v. State, 540 So.2d 171, 172 (Fla. 2d DCA 1989); 3-M Corp.-- McGhan Medical Reports Div. v. Brown, 475 So.2d 994, 997 (Fla. 1st DCA 1985); Gurganus v. State, 451 So.2d 817, 823 (Fla.1984); Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978); Gifford v. Galaxie 1 It should be noted that the only basis cited by the lower court in support for its decision to disregard such expert testimony was not any of the testimony itself, but rather a question of Petitioner s counsel, which was not evidence. See 832 So.2d at 786, fn.2. 7
Homes, Inc., 223 So.2d 108, 111 (Fla. 2d DCA), cert. denied, 229 So.2d 869 (Fla.1969) ( while an expert may respond when asked whether the premises were constructed according to reasonably safe construction standards, he may not assert that the premises were in fact negligently constructed ). Based upon the express inconsistency of the lower court with the above-cited case law, this Court has jurisdiction to review the lower court s decision not allowing Petitioner s expert to testify as to the applicability of the Building Code. See Art. V, 3(b)(3), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv). II. THE DECISION BELOW DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND VARIOUS DISTRICT COURTS, BY NOT REQUIRING RESPONDENT TO PROVE ALL ULTIMATE FACTS SUPPORTING HIS NEGLIGENCE CAUSE OF ACTION. Respondent claimed Petitioner was negligent for many reasons, including, without limitation, because it allowed him to use a ladder with allegedly worn rubber footings, which made it unreasonably dangerous. As such, in addition to the standard negligence instruction, the jury was also instructed as to the use of dangerous items: With respect to the condition of the ladder, defendant had a duty to warn plaintiff of a hidden or latent defect in the ladder, if there was any such defect, and defendant had knowledge of it. Defendant had no duty to warn of any readily observable or patent defect in the ladder, that is, a condition which a mere casual looking-over will disclose. The lower court felt that [t]his jury instruction should not have been given... 8
[because] this was a product liability instruction and this was not a product liability case. 832 So.2d at 786. However, this ruling is both illogical and contrary to decisions of this Court, as well as Florida s First, Fourth and Fifth District Courts of Appeal. See, e.g., Robinson, supra, (persons with knowledge of potential dangers owe duty to warn of dangers to those without notice of dangers); Jackson, supra; Simko, 526 So.2d at 219; Rankin, 476 So.2d at 236; Noel, supra. In reaching its decision, the lower court characterizes this action as basically a simple negligence case in which the jury was asked to determine if Defendant was negligent by allowing Plaintiff to use an unsecured ladder with allegedly worn friction pads. 832 So.2d at 786. However, that characterization disregards the established rule set forth by this Court concerning the use of dangerous items, which states that persons with knowledge of potential dangers owe a duty to warn of, or to furnish protection against, such dangers to those without notice same. See Green v. Sanson, supra; Robinson, 68 So.2d at 411; Noel, 445 So.2d at 1144. This principle is best illustrated in the Noel case. There, as in this case, the plaintiff brought a negligence action for injuries allegedly received while he was operating equipment supplied to him by the defendant. In that case, the Fourth District applied this Court s decisions in both Robinson and Green to hold that, because the defendant provided equipment to be used by the plaintiff, it also assumed a duty to 9
assure such equipment was reasonably safe; and if the defendant had actual or constructive knowledge the equipment was unreasonably dangerous, it owed a duty to warn the plaintiff of same. See Noel, 445 So.2d at 1144. The Noel court also recognized: Of course, any knowledge on the part of [the plaintiff] concerning the dangerous condition raises an issue of comparative negligence. Id. In this case, the lower court ignored that applicable case-law by stating: Under Florida law, to recover on his negligence claim, Plaintiff merely needed to prove that (1) Defendant owed him a legal duty; (2) Defendant breached that duty; (3) he suffered injury as a result of that breach; and (4) the injury caused damage. 832 So.2d at 786 (citations omitted). However, based upon Respondent s allegations that he was injured by the use of an unreasonably dangerous ladder, the lower court s decision not to allow jury instructions as to Petitioner s duty to warn is in direct conflict with this Court s rule that persons with knowledge of such conditions owe a duty to warn those without such knowledge. See Robinson, supra, Green, supra. Based upon the express inconsistency of the lower court with the above-cited case law, this Court has jurisdiction to review its decision disallowing the subject jury instruction. See Art. V, 3(b)(3), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv). CONCLUSION This Court is respectfully requested to accept jurisdiction. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing Petitioner s Jurisdictional Brief was mailed on this 31st day of January, 2003 to: Bret Clark, Esq. Rosen, Slaton & Clark 169 East Flagler Street Suite 1224 Miami, Florida 33131 Counsel for Respondent (305) 358-0038 (305) 358-1352 (fax) VERNIS & BOWLING OF MIAMI, P.A. Attorneys for Petitioner 1680 N.E. 135th Street Miami, FL 33181 Phone: (305) 895-3035 Facsimile: (305) 892-1260 By: Scott A. Forman, Esq. Florida Bar No. 0065950 Matthew S. Kish, Esq. Florida Bar No. 0491640 11
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that, in accordance with Fla.R.App.P. 9.210(a)(2), Respondent s Jurisdictional Brief has been prepared in Times New Roman 14-point font. By: Scott A. Forman, Esq. Florida Bar No. 0065950 Matthew S. Kish, Esq. Florida Bar No. 0491640 SF/MSK/mm 45/97550 T:\BRIEFS\Briefs - pdf'd\03-131_jurisini.wpd 12
APPENDIX TO JURISDICTIONAL BRIEF OF PETITIONER Conformed Copy of October 17, 2002 Corrected Opinion of the District Court of Appeal for The Third District of Florida, 832 So.2d 784 (Fla. 3d DCA 2002), and Dec. 20, 2002 denial of rehearing and rehearing en banc. 13