Post on 26-Mar-2021
IN THE SUPREME COURT OF FLORIDA
CASE NO: SC14-2188
L.T. Case No: 5D13-1937
EVA SANTAMARIA, as personal
representative of the Estate of VICTOR
CORRALES LIZARRAGA, deceased, for the
benefit of the Estate and his survivors,
EVA SANTAMARIA, surviving spouse,
VICTOR GAEL LIZARRAGA-SANTAMARIA,
surviving minor child, and XIMENA MIA
LIZARRAGA-SANTAMARIA, surviving minor child,
Petitioner(s),
vs.
R.L. HAINES CONSTRUCTION, LLC,
Respondent. _____________________________________________/
PETITIONER’S BRIEF ON JURISDICTION
Kirwin Norris, P.A.
BRIAN P. KIRWIN
Fla. Bar No.: 867799
DOUGLAS W. ACKERMAN
Fla. Bar No.: 0115037
15 West Church Street, Ste. 301
Orlando, FL 32801
Ph: (407) 740-6600
Fax: (407) 740-6363
Counsel for Petitioners
Filing # 20545662 Electronically Filed 11/13/2014 03:51:22 PM
RECEIVED, 11/13/2014 15:53:41, John A. Tomasino, Clerk, Supreme Court
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Table of Contents
TABLE OF CITATIONS …………………………………………………........ii
STATEMENT OF THE CASE ………………………………………………...1
STATEMENT OF THE FACTS ……………………………………………….1
SUMMARY OF THE ARGUMENT …………………………………………..3
ARGUMENT ……………………………………………………………….3-10
I. THE MAJORITY OPINION EXPRESSLY AND DIRECTLY
CONFLICTS WITH THE DECISIONS IN TURNER V. PCR, INC.,
754 So.2d 683 (Fla. 2000), BAKERMAN V. THE BOMBAY
COMPANY, 961 So.2d 259, 264 (Fla. 2007); CONNELY V.
ARROW AIR, INC., 568 So.2d 448, 451 (Fla. 3d DCA 1990) and
CUNNINGHAM V. ANCHOR HOCKING CORP., 558 So.2d 93
(Fla. 1ST
DCA 1990)
II. THE MAJORITY’S CAUSATION ANALYSIS IS IN CONFLICT
WITH THIS COURT’S JURY INSTRUCTIONS FOR THIS EXACT
CAUSE OF ACTION
III. THE CASE IS SIGNIFICANT AND SHOULD BE HEARD
CONCLUSION ……………………………………………………………….10
CERTIFICATE OF SERVICE AND COMPLIANCE……………………..…10
ii
TABLE OF CITATIONS
Cases Page(s)
Reaves v. State,
485 So. 2d 829, 830 (Fla.1985) …………………………………………………...1
Turner v. PCR, Inc.,
754 So. 2d 683 (Fla. 2000) …………………………………………………..passim
Bakerman v. The Bombay Company,
961 So. 2d 259, 264 (Fla. 2007) ……………………………………………..passim
Connely v. Arrow Air, Inc.,
568 So. 2d 448, 451 (Fla. 3d DCA 1990) ………………………………..............3,4
Cunningham v. Anchor Hocking Corp.,
558 So. 2d 93 (Fla. 1st DCA 1990) ……………………………………………....3,4
Acensio v. State,
497 So. 2d 640, 641 (Fla. 1986) …………………...................................................3
Knowles v. State,
848 So. 2d 1055, 1056 (Fla. 2003) …………………………………………….......4
Robertson v. State,
829 So. 2d 901, 904 (Fla. 2002) …………………………………………………...4
Arab Termite and Pest Control of Fla. Inc. v. Jenkins,
409 So. 2d 1039, 1040 (Fla. 1982) …………………………………………….......4
State v. Stacey,
482 So. 2d 1350, 1350 (Fla.1986) ………………………………………………....4
Ford Motor Company v. Kikis,
401 So. 2d 1341, 1342 (Fla. 1981) ………………………………………………...4
In re Standard Jury Instruction in Civil Cases,
35 So. 3d 666, 772, 75 (Fla. 2010) …………………………………………….......6
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McConnell v. Union Carbide Corp.,
937 So. 2d 148, 153 (Fla. 4th DCA 2006) ……………………………….................6
R.J. Reynolds Tobacco Co. v. Jewett,
106 So. 3d 465, 469 n.4 (Fla. 1st DCA 2012) ………………………………….......6
Castellanos v. Next Door Company,
SC13-2082 ………………………………………………………………………....9
Westphal v. City of St. Petersburg,
SC13-1930 ………………………………………………………………………....9
State of Florida v. Florida Workers’ Advocates et al,
3D14-2062 …………………………………………………………………………9
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STATEMENT OF THE CASE
After a 9 day trial, the jury returned a verdict for Petitioner (the widow of
the decedent steel worker Victor Lizarraga) and their children in the amount of 2.4
million dollars. The trial judge denied motions made by Respondent (a general
contractor) for judgment notwithstanding the verdict. Respondent appealed, and
the Fifth District Court of Appeal reversed the jury verdicts. Notice of intent to
seek this Court’s discretionary jurisdiction was timely filed with the Fifth District.
STATEMENT OF THE FACTS1
Respondent contracted to build a 200,000 square foot expansion of an
existing warehouse. Respondent’s on site superintendent was Donnie Langdale.
Respondent subcontracted the steel work on the Project to Metal Bilt, Inc. At the
time he was killed, Victor Lizarraga was working as a foreman for Metal Bilt.
The steel columns were to be held to the concrete slab by anchor bolts which
were epoxied into the slab. According to the epoxy installation instructions, loads
were not to be applied until the cure time had passed. On January 13, 2010,
several anchor bolts were secured to concrete slabs with epoxy adhesive. The
epoxy installation instructions called for seventy-two hours of drying time. Donnie
1 All facts come from the majority and dissenting opinions. Petitioner is
aware of the case law holding that dissenting opinions should not be utilized.
Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) However, footnotes 6 and 7 of the
majority opinion acknowledge the accuracy of the facts stated by the dissent; it is
the legal significance of the facts, not their accuracy, which was rejected by the
majority.
2
Langdale nonetheless instructed Metal Bilt employees to begin setting the steel
columns on January 15, 2010, after only forty-four hours of drying time.
The previous day, Thursday January 14, 2010, Donnie Langdale knew that
an anchor bolt that had been set at one of the columns had raised up. The bolt
could not have moved if the epoxy had been properly mixed and allowed to cure.
Those working at the site knew this; indeed, the workers who observed the bolt rise
up immediately stopped work and notified their supervisor.
Later on the 14th, Langdale met with the project engineer but never
informed the project engineer about the bolt rising up. At trial, Langdale and the
project engineer testified that notice of the movement of the bolt would be a “red
flag” indicating installation failure, which would necessitate stopping work and
performing additional testing before attempting to erect the steel columns.
The next morning, Friday, January 15, 2010, despite knowing about the bolt
rising, and knowing that the cure time on the column that ultimately fell and killed
Lizarraga had not passed, Langdale told Metal Bilt employees that it was safe to
set the steel columns. Worse yet, Langdale falsely represented to Metal Bilt’s site
superintendent and project manager that both the project engineer and owner’s
representative had indicated they were “good to go” for erecting the columns.
Evidence in the record demonstrated that those in the industry, including
Langdale, would know that a steel column weighing over 2,000 pounds, if not
3
properly secured, would fall. Nonetheless, despite this knowledge, Langdale
misrepresented the danger and claimed that the project engineer had given the all
clear to raise the columns.
SUMMARY OF THE ARGUMENT
The majority Opinion gives no evidentiary weight to the substantial
evidence of employer concealment as it relates to the issue of likelihood of injury
in direct conflict with existing precedent.
The majority Opinion adds causation elements which are in direct conflict
with the jury instructions propounded by this Court for this exact cause of action.
ARGUMENT
I. THE MAJORITY OPINION EXPRESSLY AND
DIRECTLY CONFLICTS WITH THE DECISIONS IN
TURNER V. PCR, INC., 754 So.2d 683 (Fla. 2000);
BAKERMAN v. THE BOMBAY COMPANY, 961 So.2d
259, 264 (Fla. 2007); CONNELY v. ARROW AIR, INC.,
568 So.2d 448, 451 (Fla. 3d DCA 1990); and
CUNNINGHAM v. ANCHOR HOCKING CORP., 558
So.2d 93 (Fla. 1st DCA 1990)
Misapplication of precedent is an established basis for this Court’s conflict
jurisdiction. Bakerman v. The Bombay Company, Inc., 961 So. 2d 259 (Fla. 2007)
(accepting conflict jurisdiction where Third District misapplied Turner v. PCR,
Inc., 754 So. 2d 683 (Fla. 2000) to add requirement of employer concealment to
“substantial certainty” test); Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986);
4
Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003); Robertson v. State, 829 So.
2d 901, 904 (Fla. 2002); Arab Termite and Pest Control of Fla. Inc. v. Jenkins, 409
So. 2d 1039, 1040 (Fla. 1982); State v. Stacey, 482 So. 2d 1350, 1350 (Fla. 1986)
That the Opinion does not itself identify any conflict is not necessary:
The . . . district court below did not identify a direct conflict of its
decision with any other Florida appellate decisions. The court’s
opinion, discusses, however, the basis upon which it reversed the trial
court’s entry of a directed verdict of Ford. This discussion, of the
legal principles which the court applied supplies a sufficient basis
for a petition for conflict review. It is not necessary that a district
court explicitly identify conflicting district court or supreme court
decisions in its opinion in order to create an “express” conflict under
section 3(b)(3).
Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981)
Here, the Opinion misapplies, indeed fails to apply, a holding of Turner v.
PCR, Inc., 754 So. 2d 683, 690 (Fla. 2000) that remains valid and controlling.
Turner confirmed that
where an employer withholds from an employee knowledge of a
defect or hazard which poses a grave threat of injury . . . the
employer will be considered to have acted in a belief that the
harm is substantially certain to occur. Turner v. PCR, Inc., 754 So.
2d 683, 690 (Fla. 2000) (quoting with approval Connely v. Arrow Air,
Inc., 568 So. 2d 448, 451 (Fla. 3d DCA 1990).
The Court in Turner further noted with agreement that Connely and
Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA 1990) “share a
common thread of evidence that the employer tried to cover up the danger,
5
affording the employees no means to make a reasonable decision as to their
actions.” Id. at 691.
Bakerman v. The Bombay Company, 961 So. 2d 259, 264 (Fla. 2007)
expressly reaffirmed that “[employer] concealment can be an important . . . factor
in the larger analysis of whether the circumstances demonstrate a substantial
certainty of harm.”
The Legislature’s move from “substantial certainty” to “virtual certainty,”
did not overrule Turner’s and Bakerman’s statement of the evidentiary
significance of an employer’s concealment as it relates to the issue of likelihood of
injury or death.
However, the Opinion, while citing both Turner and Bakerman, and
acknowledging Donnie Langdale’s lies and concealment, conflicts with Turner and
Bakerman by giving no evidentiary weight to the lies and concealments in the
Opinion’s discussion of the likelihood of injury or death. The Court in Bakerman
accepted jurisdiction because the Third District held that employer concealment
was a required element. The Court in this case should accept jurisdiction because
the Opinion fails to give any evidentiary weight to the substantial employer
concealment. The Opinion conflicts with this Court’s holdings in Turner and
Bakerman that employer concealment is highly relevant to the likelihood of injury
or death.
6
II. THE MAJORITY’S CAUSATION ANALYSIS IS IN
CONFLICT WITH THIS COURT’S JURY
INSTRUCTIONS FOR THIS EXACT CAUSE OF
ACTION
Adding elements to a cause of action is a suitable basis for this Court’s
conflict jurisdiction. Bakerman, supra. (holding that Third District’s adding of
employer concealment as a required element of the intentional tort exception to
workers’ compensation immunity created conflict jurisdiction).
Here, the Opinion adds multiple causation elements to the cause of action
which are not in the statute and conflict with this Court’s jury instructions for this
exact cause of action.
In 2010, more than six years after the Legislature enacted the “virtually
certain” standard for intentional harm by employers, this Court approved jury
instructions specifically for use in this exact cause of action. In re Standard Jury
Instruction in Civil Cases, 35 So. 3d 666, 772, 75 (Fla. 2010). Jury instructions are
not binding but are presumed to be accurate until a litigant makes a showing to the
contrary. McConnell v. Union Carbide Corp., 937 So. 2d 148, 153 (Fla. 4th
DCA
2006). Moreover, the case law from which they derive is binding, and the
instructions “are neutral and reliable because they represent the product of
laborious and nuanced discussions among highly experienced and knowledgeable
members of the bench and bar.” R.J. Reynolds Tobacco Co. v. Jewett, 106 So. 3d
7
465, 469 n.4 (Fla. 1st DCA 2012).
The Court approved the following instructions regarding causation:
Instruction 414.4C
In order to be regarded as a legal cause of injury or damage the
conduct need not be the only cause. A party’s conduct may be a
legal cause of loss, injury or damage even though it operates in
combination with some other cause if the conduct contributes
substantially to producing such loss, injury or damage.
A party’s conduct may also be a legal cause of injury or damage even
though it operates in combination with the act of another, some
natural cause or some other cause occurring after the party’s conduct
occurs if such other cause was itself reasonably foreseeable and the
party’s conduct contributes substantially to producing such injury or
damage or the resulting injury or damage was a reasonably
foreseeable consequence of the party’s conduct and the party’s
conduct contributes substantially to producing it.
Instruction 414.5 Issues on Claim
After quoting in part section 440.11, Florida Statutes:
“and, if so, whether that conduct was a legal cause of [loss] [injury] or
[damage] to (claimant).”
“Foreseeability” is by definition “[t]he ability to see or know in advance.”
Black’s Law Dictionary 584 (5th
ed. 1979).
Yet, the Opinion forsakes the prescribed standard of foreseeability by
declaring that the statutory standard “requires events to be viewed retrospectively
8
in order to determine whether the injury actually sustained was virtually certain to
have occurred as a result of the employer’s conduct.”
In addition to forsaking the traditional tort concept of “foreseeability” with a
“retrospective” analysis, the Opinion adds requirements fundamentally inconsistent
with the approved jury instructions. Indeed, the Opinion requires proof “that the
column would fall at a time, in a direction, and in a manner that was virtually
certain to injure or kill an employee,” and further requires that the foregoing be
causally linked to “the injury actually sustained.”
Finally, in direct conflict with the jury instructions, the Opinion discounts
Metal-Bilt’s project manager’s testimony that injury under these circumstances
was “more than certain,” because it “does not refer to causation by the shortened
curing time rather than an unrelated failure of the epoxy adhesive, the alternative
cause for which there was evidentiary support.” Opinion, n.6.
This line of reasoning results in causation requirements which are
inconsistent with the jury instructions propounded by this Court for this exact
cause of action. The statute requires proof of only injury or death generally, and
the Opinion’s conclusion that Metal-Bilt’s project manager had to explain away an
“alternative cause” is in direct conflict with the jury instructions. Requiring the
employee to prove that an employer’s conduct was virtually certain to cause a
9
particular chain of events subsequently linked to particular injuries or death cannot
be reconciled with this Court’s jury instructions for this exact cause of action.
The facts of this case illustrate the point. Numerous Metal-Bilt employees
could have been injured in a variety of ways or killed. To require each of these
putative plaintiffs to prove Donnie Langdale’s conduct was going to cause
columns, beams, and/or purlins to fall at a particular time, direction, and manner
and then link the foregoing to “the actual injuries sustained” cannot be reconciled
with this Court’s jury instructions on causation for this exact cause of action.
III. THE CASE IS SIGNIFICANT AND SHOULD BE HEARD
There are two cases pending in this Court on workers’ compensation
issues—both tending to suggest that employees are not being treated fairly.
Castellanos v. Next Door Company, SC13-2082; Westphal v. City of St.
Petersburg, SC13-1930. Additionally, the 11th
Circuit Court in Miami-Dade
County recently declared section 440.11, Florida Statutes, the exclusive remedy
provision of the Workers’ Compensation statute, unconstitutional because
employees are not fairly treated under the statute. That case is pending before the
Third District. State of Florida v. Florida Workers’ Advocates et al, 3D14-2062.
In the Fifth District’s latest interpretation in this case, the majority itself
describes the cause of action as “hypothetical,” while the dissent describes it as
“illusory or unattainable.” Statutes should not be interpreted to render causes of
10
action “hypothetical,” “illusory or unattainable.” The facts of this case are
egregious and the Court should hear the case on the merits.
CONCLUSION
The Court has discretionary jurisdiction to review the opinion of the Fifth
District Court of Appeal, and the Court should exercise that jurisdiction to consider
the merits of Petitioner’s case.
CERTIFICATE OF SERVICE AND COMPLIANCE
Pursuant to Rule 9.210 (a), Fla. R. App. P., undersigned counsel hereby
certifies that on November 13, 2014, this Brief is submitted in Times New Roman
14-point font. Counsel further certifies that a copy of the Brief was electronically
filed with The Florida Supreme Court and served via e-mail on the following: Scott
A. Cole Esq., Rhonda L. Beesing, Esq., scott.cole@csklegal.com,
rhonda.beesing@csklegal.com, charo.fagundez@csklegal.com,
mary.rigau@csklegal.com, Counsel for Respondent, R.L. Haines Construction,
Inc.
Kirwin Norris, P.A.
/s/ Brian P. Kirwin
BRIAN P. KIRWIN
Fla. Bar No.: 867799
DOUGLAS W. ACKERMAN
Fla. Bar No.: 0115037
15 West Church Street, Ste. 301
Orlando, FL 32801
11
Ph: (407) 740-6600
Fax: (407) 740-6363
Counsel for Petitioners
U:\Public\DOCS\5039-01\Appeal\Drafts\BriefonJurisdiction.doc.docx