CASE REVERSED AGAINST DEFENDANT WHO SOLD CRANE AND AGREED TO KEEP IT IN GOOD REPAIR – DEFENDANT CANNOT BE FOUND LIABLE FOR BREACH OF OBLIGATION IF PRODUCT NOT FOUND TO BE DEFECTIVE
Liebherr-America, Inc., etc. v. McCollum, 35 Fla. L. Weekly D297 (Fla. 3rd DCA February 3, 2010):
The decedent was run over and killed by a huge mobile crane at the Port of Miami. Although it neither designed, manufactured, or operated the crane at the time of the accident, nor did it own or control the property where the decedent was killed, the jury found defendant crane seller partially liable for the death. Finding no legal basis for the liability, the court reversed for entry of judgment in the defendant’s favor.
The defendant, Liebherr-America, was a seller and servicer of equipment. Had the equipment contained a defect which rendered it unreasonably dangerous, this defendant could have been found responsible. However, when the jury found the crane was not defective at the time of sale, this defendant could not be responsible.
Plaintiffs additionally asserted that defendant had an obligation to appropriately service the crane after its sale. There was some evidence that one of the horns and another warning device was not operating properly. However, the court found that fact alone could not give rise to liability in the absence of certain evidence: (a) evidence that the asserted failure had occurred previously; and (b) that the defendant was on notice of such an impropriety and had been guilty in failing to repair it. Additionally, because there was no showing that the failure of the horn had anything to do with the accident rendered such shortcomings incapable of being a legal cause of death.
The court reminded us that there is no duty on the part of a seller or anyone in the distributive chain to warn of dangers presented by the product’s operation after it has passed from its control. That duty lies either with the allegedly negligent operator of the crane, or on the owner of the property.
ERROR TO DISMISS COMPLAINT WITH PREJUDICE WITHOUT INCLUDING EXPLICIT FINDINGS OF NON-COMPLIANCE IN ORDER AND WITHOUT CONSIDERING FACTORS SET FORTH IN KOZEL
Johnson v. Skarvan, 35 Fla. L. Weekly D302 (Fla. 5th DCA February 5, 2010):
Despite the trial judge’s perception that plaintiff was non-compliant with the court’s orders, dismissal with prejudice is an extreme sanction reserved for those aggravating circumstances where a lesser sanction would fail to achieve a just result. A trial court has discretion, after due consideration of the Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) factors, to dismiss a case but the dismissal order must contain explicit findings of willful non-compliance. While the trial court may have been justified in dismissing the case, the lack of the requisite finding of willful non-compliance and failure to consider the Kozel factors required reversal.
FAILURE TO RETURN UNEARNED PORTION OF RETAINER PAID TO DEFENDANT PSYCHOLOGIST TO CONDUCT CHILD CUSTODY EVALUATION AMOUNTS TO CIVIL THEFT – PREMATURE FILING OF COMPLAINT DID NOT LEAD TO PAYMENT OF TREBLE DAMAGE AMOUNT ANY WAY, AND DEFENDANT FAILED TO DEMONSTRATE PREJUDICE
McCormack v. Flens, 35 Fla. L. Weekly D308 (Fla. 2nd DCA February 5, 2010):
Mr. McCormack paid a psychologist an $8,000.00 retainer to conduct a child custody evaluation in a divorce case. The psychologist used $4,750.00 of the retainer, but refused to return the rest which had not been used.
Mr. McCormack filed his amended complaint less than 30 days after the second civil theft demand letter was delivered to the psychologist. Based on that, the trial court determined that a directed verdict had to be granted for the psychologist. The court disagreed. Because the doctor never paid the amended treble damage amount, he failed to demonstrate he was prejudiced by the premature filing. The court also found there was evidence to support the jury’s verdict of civil theft.
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT ON GROUND PLAINTIFF FAILED TO PRESENT EVIDENCE TO OVERCOME PRESUMPTION OF NEGLIGENCE IN REAR END COLLISION
Itiat v. Foskey, 35 Fla. L. Weekly D313 (Fla. 1st DCA February 5, 2010):
The decedent died as a result of rear ending a tow truck on I-10 following a rain storm. The trial court entered summary judgment in favor of the defendant based upon its determination that the plaintiff failed to provide evidence sufficient to overcome the presumption of negligence.
The summary judgment was based on the trial court’s determination that the plaintiff failed to provide sufficient evidence to overcome the presumption. The court explained there are three general categories of affirmative explanations that have been held to rebut the presumption of negligence: (a) an abrupt and arbitrary stop in a place where it could not reasonably be expected, or an unexpected change of lanes; (b) a mechanical failure that causes the rear driver to collide with the lead driver; or where (c) the lead vehicle is illegally and unexpectedly stopped.
After reviewing the record and drawing inferences in favor of the plaintiff, the court found that whether the defendant had suddenly changed lanes and reduced his speed, and whether those actions caused the collision, did provide evidence to overcome the presumption, and therefore, summary judgment was improper.
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