SUMMARY JUDGMENT IN FAVOR OF SUBCONTRACTOR UPHELD, WHERE NO EVIDENCE THAT DEFENDANT NEGLIGENTLY INSTALLED GUARDRAIL SYSTEM
Howard v. Boulanger Drywall Corp., 34 Fla. L. Weekly D2484 (Fla. 4th DCA December 2, 2009):
The plaintiff, an employee of a window subcontractor, sued another subcontractor who installed safety railings at the construction site after the employee was injured. The employee fell from a third story balcony while working on a unit’s sliding glass door track. Plaintiffs alleged that defendant was negligent for not installing and/or constructing the safety boot rail system in accordance with the specific and detailed instructions provided with the system.
The uncontested facts established that the defendant was responsible for installing the guardrails, but not responsible for selecting or paying for the type of material used, or for maintaining the guardrail system. Defendant also submitted an affidavit from an independent safety consultant who attested to their proper construction.
Plaintiff later filed a motion from a human factors and industrial safety expert who stated that the safety boot guardrail system was not properly installed based on his reference to the manufacturer’s installation instructions depicting the required railings. However, and significantly, the affidavit was not based on his personal knowledge. Instead, the expert had simply reviewed the installation booklet, viewed photographs of the chain link guardrails, and provided his opinion. There was no proof that he ever even examined the safety rail system, or had any other personal knowledge regarding the system.
Because the defendant established it did not negligently install the guardrail system, summary judgment was proper.
DEFENDANT ENTITLED TO AWARD OF ATTORNEY’S FEES AGAINST PARTIES WHO WERE NOT NAMED AS PLAINTIFFS, BUT WHO FINANCED AND HAD CONTROL OVER LITIGATION – NON-NAMED PARTIES’ INVOLVEMENT IN LITIGATION WAS SUCH THAT THEIR STATUS ROSE TO THE LEVEL OF A “PARTY”
Abu-Ghazaleh v. Martin, 34 Fla. L. Weekly D2496 (Fla. 3rd DCA December 2, 2009).
COURT PROPERLY DENIED NEW TRIAL IN CASE WITH CONFLICTING EVIDENCE ON LIABILITY
Weatherly v. Louis, 34 Fla. L. Weekly D2498 (Fla. 3rd DCA December 2, 2009):
Plaintiff was riding his motorcycle and was in an accident with an SUV. Plaintiff testified just before the accident he was traveling on the left-hand side of the southbound lane when he saw the defendant’s SUV exiting a parking lot making a left-hand turn across the southbound lane onto the northbound lane. Plaintiff testified he flashed his headlights and honked his horn, but could not avoid running into the left side of the defendant’s SUV. The defendant testified he pulled out of the parking lot and saw no vehicles, and that the light was red when he pulled out. A disinterested witness testified that before the plaintiff passed him on the left, he saw him run two red lights. The witness even said he thought the plaintiff was going to “kill himself.”
Plaintiff argued that the trial court abused its discretion denying his motion for new trial on liability, because the verdict was contrary to the manifest weight of the evidence. However, because the evidence was conflicting, it was within the province of the jury.
The trial court properly denied the motion for new trial. It also did not have to specify either orally or in writing why it was denying the new trial.
ADJUDICTION OF COMPULSORY COUNTERCLAIM IS NOT APPEALABLE UNTIL FINAL DISPOSITION OF ORIGINAL CAUSE HAS BEEN OBTAINED ON THE MERITS—SUMMARY JUDGMENT DISPOSING OF COUNTERCLAIM WAS NOT IN FACT A FINAL JUDGMENT EVEN THOUGH IT CONTAINED WORDS OF FINALITY
The Haven Center v. Meruelo, 34 Fla. L. Weekly D2508 (Fla. 3rd DCA December 2, 2009).
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