Opinion
No. 90-0126.
August 7, 1991. Rehearings Denied September 4, 1991.
Appeal from the Circuit Court for Broward County, Robert Lance Andrews, J.
John Elliott Leighton, and Philip M. Burlington, of Edna L. Caruso, P.A., West Palm Beach, for appellants.
Shelley H. Leinicke, of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham Lane, Fort Lauderdale, for appellee-Am-Sprad Metals Inc.
Robert L. Teitler, of Walton, Lantaff, Schroeder Carson, Miami, for appellee-Dolphin Installation Inc.
We disagree with the trial court's implicit conclusion that triable issues were not shown, and thus we reverse the summary judgment.
Appellant, a plumber working on a newly constructed building, was injured when he walked outside on the ground floor and was struck by an object falling from above. Evidence in the record shows that concrete cores drilled by Dolphin (working under an unauthorized subcontract with Am-Sprad) were strewn about "all over the buildings, stairs, landings, and balconies, which sat for extended periods of time." White testified that when he picked himself up after the blow, he saw on the ground in front of him several concrete cores.
We think that a jury might reasonably have found that Dolphin was negligent in leaving the cores all around, that a core so left on an upper floor was thrown or pushed over the side by another worker on the job site, and that Dolphin's negligence proximately caused or contributed to White's injuries. We certainly think that White was entitled to offer evidence of the above to a jury, rather than have his claim summarily adjudicated.
We also do not believe that Am-Sprad could avoid its duty of care by unauthorizedly, and without the general contractor's knowledge, subcontracting with Dolphin to perform its contract with the general contractor. Appellees have not successfully distinguished Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979) (lack of privity between plaintiff and defendant does not extinguish plaintiff's tort claim); City of Coral Gables v. Prats, 502 So.2d 969 (Fla. 3d DCA), rev. denied, 511 So.2d 297 (Fla. 1987) (city's contract with subcontractor did not relieve city of nondelegable duty to protect public from hazards during construction); and our own decision in Moore v. PRC Engineering, Inc., 565 So.2d 817 (Fla. 4th DCA 1990) (record showed material issue of fact, precluding summary judgment, as to whether defendant was negligent in failing to maintain and inspect safety procedures at job site resulting in injuries to construction worker).
We reverse and remand for a trial so that a jury can determine the facts.
DOWNEY, J., concurs.
GUNTHER, J., dissenting with opinion.
I respectfully dissent. In my view, this case involves the impermissible stacking of inferences by White. See generally Nielson v. City of Sarasota, 117 So.2d 731 (Fla. 1960). In addition to the pertinent facts recited in the majority opinion, other pertinent facts include White's statement that after being hit, he stood up, surveyed a 10 inch area around his feet and saw several concrete cores in this 10 inch area. Although White specifically denied looking outside this 10 inch area, other witnesses testified that the accident scene was littered with various types of construction debris.
The undisputed evidence in this case shows that White's injuries were caused by an unknown object hitting him on the head. What object hit White, why or how White was hit and what or who caused the object to hit White is not revealed by the evidence. Furthermore, it is clear from the evidence in this case that the answers to these questions are unobtainable through additional discovery or any other means. Since several equally reasonable inferences concerning the ultimate issues in this case can be drawn from the undisputed evidence, I conclude that White's cause of action is founded upon the impermissible stacking of inferences.
The ban against the impermissible stacking of inferences has been applied to affirm a lower court's granting of a summary judgment. Byrd v. Leach, 226 So.2d 866 (Fla. 4th DCA 1969), Bates v. Winn-Dixie Supermarkets, Inc., 182 So.2d 309 (Fla. 2nd DCA 1966). Since the facts of this case are undisputed, and are insufficient, as a matter of law, to support a jury verdict in favor of White the trial court properly granted summary judgment in favor of Dolphin and Am-Sprad. See Fla.R.Civ. P., Rule 1.510(c), Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982).
Accordingly, I would affirm the summary final judgment entered by the trial court in favor of Dolphin and Am-Sprad.