IN THE SUPREME COURT OF FLORIDA
CASE NO. SC11-2188
ROBERT FRIEDRICH and L.T. CASE NOS:HEATHER FRIEDRICH, his wife, 4th DCA CASE NO. 4D09-3661
15th CIR. CASE NO. 50 2005 CA 006954 MBPetitioners,
v.
FETTERMAN AND ASSOCIATES,P.A.,
Respondent.
PETITIONERS' REPLY BRIEF ON THE MERITS
REBECCA MERCIER VARGAS andJANE KREUSLER-WALSH ofKREUSLER-WALSH, COMPIANI & VARGAS, P.A.501 South Flagler Drive, Suite 503West Palrn Beach, FL 33401-5913(561) 659-5455
andSCOTT B. SMITH andMARGARET M. BICHLER ofLYTAL, REITER, SMITH, IVEY & FRONRATH515 North Flagler Drive, 10th FloorWest Palm Beach, FL 33401(561) 655-1990
TABLEOFCONTENTSPage
Argument 1
Point on Review 1THE JURY MUST DECIDE THE QUESTION OFNEGLIGENCE IN A COLLAPSING CHAIR CASE WHENTHE PLAINTIFF PRESENTS EVIDENCE THAT THEDEFENDANT WOULD HAVE DISCOVERED THEDANGEROUS CONDITION WITH ANINSPECTION ANDTHE DISTRICT COURT CANNOT REWEIGH THEEVIDENCE OR IMPOSE A CAUSATION STANDARDHIGHER THAN "MORE LIKELY THAN NOT."
A. The Fourth District's decision conflicts with chair collapsecases establishing that the reasonableness of aninspection is a question for the jury.
1
B. The Friedrichs' expert testified that the Fetterman firmwould have discovered the dangerous condition of thechair with an inspection. 6
C. The Friedrichs' expert's opinion was not "new" and theFetterman firm did not preserve this argument. 10
D. There is no need to remand for the Fourth District toconsider whether the verdict was against the manifestweight of the evidence. 11
Conclusion 12
Certificate of Service 13
Certificate ofFont 14
1
TABLE OF CITATIONS
Case Page
Aills v. Boemi,29 So. 3d 1105 (Fla. 2010) 10
Binger v. King Pest Control,401 So. 2d 1310 (Fla. 1981) 11
Brown v. Estate of Stuckey,749 So. 2d 490 (Fla. 1999) 11, 12
Cox v. St. Josephs Hosp.,71 So. 3d 795 (Fla. 2011) 9
Fetterman & Assocs., P.A. v. Friedrich,69 So. 3d 965 (Fla. 4th DCA 2011) passim
Fontana v. Wilson World Maingate Condo.,717 So. 2d 199 (Fla. 5th DCA 1998) 2, 3, 4, 5
Ricks v. Loyola,822 So. 2d 502 (Fla. 2002) 11
Schneider v. K.S.B. Realty & Investing Corp.,128 So. 2d 398 (Fla. 3d DCA 1961) 2, 5
Wiggins v. Sadow,925 So. 2d 1152 (Fla. 4th DCA 2006) 12
Yuniter v. A & A Edgewater of Fla., Inc.,707 So. 2d 763 (Fla. 2d DCA 1998) 2, 4, 5
11
ARGUMENT
POINT ON REVIEW
THE JURY MUST DECIDE THE QUESTION OFNEGLIGENCE IN A COLLAPSING CHAIR CASEWHEN THE PLAINTIFF PRESENTS EVIDENCETHAT THE DEFENDANT WOULD HAVEDISCOVERED THE DANGEROUS CONDITIONWITH AN INSPECTION AND THE DISTRICTCOURT CANNOT REWEIGH THE EVIDENCE ORIMPOSE A CAUSATION STANDARD HIGHERTHAN "MORE LIKELY THAN NOT."
A. The Fourth District's decision conflicts with chair collapse casesestablishing that the reasonableness of an inspection is a question forthe jury.
The Fetterman firm cannot escape that the Friedrichs' engineering expert, Mr.
Sasso, testified that "a 'hands-on inspection' of the chair before the accident should
have revealed the weak joint" in the conference room chair (A:1; see A:3; T2:101, 111-
13, 123, 128, 135, 144). I The Fetterman firm even concedes that the Friedrichs' expert
"gave the jury testimony upon which they could base a finding ofnegligence" (AB:1).
Indeed, the Fourth District cited this very testimony in its decision (A:1). The decision
also acknowledged that the Friedrichs adduced evidence that a reasonable business,
including the Fetterman firm, should periodically inspect its furniture for defects (A:1-
All symbols are used as stated in the Preliminary Statement ofthe Initial Briefwith the following additions: AB - the Fetterman firm's Answer Brief; IB - theFriedrichs' Initial Brief. All emphasis is supplied unless stated otherwise.
1
3). Yet, the Fourth District reversed for entry of a directed verdict for the Fetterman
firm because, the decision claimed, the Friedrichs presented no evidence ofhow long
the dangerous condition existed (A:4).
This holding conflicts with decisions from other districts involving collapsing
chairs, which make clear that the plaintiff does not have to prove exactly how long the
dangerous condition existed. See, e.g., Fontana v. Wilson World Maingate Condo.,
717 So. 2d 199, 199-200 (Fla. 5th DCA 1998); Yuniter v. A & A Edgewater of Fla.,
Inc., 707 So. 2d 763, 764 (Fla. 2d DCA 1998); Schneider v. K.S.B. Realty & Investing
Corp., 128 So. 2d 398, 399 (Fla. 3d DCA 1961). In all three decisions, the plaintiffs
presented evidence that a reasonable inspection would have revealed the dangerous
condition in the chair. The decisions all held that where, as here, the plaintiff
presented evidence that the failure to conduct a reasonable inspection caused the
injury, the question ofnegligence is for the jury. See, e.g., Fontana, 717 So. 2d at 199-
200; Yuniter, 707 So. 2d at 764; Schneider, 128 So. 2d at 399. None of these cases
holds that the plaintiff must prove how long the dangerous condition existed.
2
The Fetterman firm tries to distinguish these cases as purportedly involving
"some evidence of probability as to what an inspection would have found." (AB:17)
(emphasis in original). The Fetterman firm claims the Friedrichs' expert testified that
"it is impossible to know whether a proper inspection would have revealed this defect"
(AB:18; see AB:23)(emphasis in original). This is not true. The Fourth District made
the same error when it stated that the Friedrichs' expert "conceded that it was possible
that a flex-test may not have revealed the weak joint since it was not possible to
determine when the joint began to weaken to the point that it would have begun to flex
under the test" (A:2). Actually, the Friedrichs' expert testified that an inspection
would have revealed the dangerous condition in the chair (T2:101, 111-13, 123, 128,
135, 144).
The Fetterman firm fails in its attempt to distinguish Fontana as involving a visible
problem with the swivel in the chair that collapsed (AB:17-18). The Fontana decision
states the defect in the chair "was hidden" and that the defendant's employees "merely
looking at the chair would not have observed danger." 717 So. 2d at 200. The Fifth
District held that although the defect was hidden it "should have been apparent had [the
defendant] checked the chair." Id. at 199. A jury question existed even though "there
was no evidence offered as to how long the chair had been defective." Id. at 199.
The defendant "had no procedure in place for the inspection or maintenance of its
3
furnishings" and "did not check the condition of its furniture to see that it was in a safe
condition." Id. at 200. The court in Fontana reversed a directed verdict for the defendant
because "[t]he jury could have found that the owner's ostrich-like approach to the
safety of its premises did not meet its obligations to its invitees." Id.
Similarly, this case involves a collapsing chair with a dangerous condition not
visible to the naked eye, but discoverable with an inspection (A:1, 3; T2:94, 101, 111-
13, 123, 128, 135, 144; T7:770-71, 788). The Fetterman firm here took the same
"ostrich-like approach to safety" and never inspected the chairs (T2:138-40; T6:723;
T7:789-90; T9:1112-13, 1115-17, 1154-55, 1161). Yet, directly contrary to Fontana, the
Fourth District in Fetterman reversed for entry of a directed verdict because the expert
"provided no time frame concerning how long before the accident such testing would
have been effective" (A:3) (emphasis in original).
Consistent with Fontana, the Second District in Yuniter did not require the
plaintiff to establish how long the defective condition existed. Yuniter, 707 So. 2d at
764. In Yuniter, a chair in a hotel room collapsed when the plaintiff, a hotel guest,
stood on it. The defendant had not discovered the dangerous condition in the chair
during an inspection six weeks earlier or while housekeeping staff cleaned the chair.
See id. The Second District reversed because a question of fact existed as to the
4
reasonableness of the inspection. See id. "Generally questions concerning whether a
proper inspection, ifmade, would have revealed alleged defects are considered genuine
triable issues." Id.
The Fetterman firm distinguishes Yuniter by fabricating its own version of the
Freidrichs' expert's testimony. His testimony did not, as the Fetterman firm claims,
"establish[] that it is impossible to know whether a proper inspection would have
revealed this defect." (AB:18; see AB:23)(emphasis in original). To the contrary, as
discussed below in part B, infra, the Friedrichs' expert testified that the dangerous
condition would have been discovered with an inspection.
Fetterman is indistinguishable from Fontana, Yuniter, and Schneider. As the
Fourth District decision recognized, the Friedrichs' expert testified that testing the
chair "would have revealed the defect in the chair" and that "periodic inspections of
office chairs was reasonable." (A:3). Despite this evidence, the Fourth District
reversed the judgment for the Friedrichs and remanded to enter judgment for the
Fetterman firm who had never inspected the chair (A:2, 4). The Friedrichs have a
right to have the jury resolve any conflicts in the evidence and decide the issue of
negligence. This Court should resolve this express and direct conflict among the
5
district court decisions by quashing the Fourth District's decision and remanding for
entry of judgment for the Friedrichs in accord with the jury's verdict.
B. The Friedrichs' expert testified that the Fetterman firm would havediscovered the dangerous condition of the chair with an inspection.
The Fourth District recognized that the Friedrichs' expert testified that "a
'hands-on inspection' of the chair before the accident should have revealed the weak
joint" in the conference room chair (A:1; see A:3). Inconsistently, the Fourth District
mischaracterized the Friedrich's expert as having "conceded that it was possible that a
flex-test may not have revealed the weak joint since it was not possible to determine
when the joint began to weaken to the point that the legs would have begun to flex
under the test" (A:2). The Fetterman firm makes the same error and claims, without
support in the record, that the Friedrichs' expert testified "it was impossible to
determine whether that omission was causally related to the accident" (AB:23; see
AB:18).
A review ofthe trial transcript reveals that the Friedrichs' expert never made this
concession or stated it was impossible to make this determination. To the contrary, he
testified that "[h]ad [Fetterman] done a hands-on inspection he would have found that
6
the right side was more flexible than the left side" and "ifhe had done a right side -- an
inspection of the chair he would have found it." (T2:128).
Both parties' experts agreed that the chair was unsafe and dangerous due to a
weak joint that did not fit tightly (A:1; T2:94, 97-107, 109; T7:770-71, 788; T9:1158).2
The Friedrichs' expert testified that "a hands-on inspection of the chair before the
accident should have found the weakjoint that caused this chair to fail."(T2:101 ). He
explained the reason for his opinion - namely, that the chair's joint had failed slowly
over time (T2:97-100, 109-10, 144). The Friedrichs' expert discussed the physical
evidence that supported his position:
This is dry glue where it over time peeled away from--that's how I know that the right side fracture was a slowfracture over a period of time where if you compare it tothe left-hand side, which was a rupture.
(T2:100).
On cross-examination, the Friedrichs' expert testified that "from the evidence of
the back wood peeling away it took time over - - it could take just seconds to hours to
days to weeks" for the chair to fail (T2:127; see T2:130, 137). Despite this, the
2 Both parties' experts examined the chair after the collapse, when it was alreadyin pieces (T2:93).
7
Friedrichs' expert maintained that an inspection would have revealed the danger:
Q. Thank you. With regard to whether my clientwould know that this right joint was loose, isn't that purespeculation on your part?
A. Had he done a hands-on inspection he wouldhave found that the right side was more flexible than theleft side.
Q. . . . . And because you don't know what it lookedlike after the manufacturer, after the repair process, therewould be no way of you being able to testify whether myclient knew or should have known or could have done aninspection that would reveal the right sided weakness, isn'tthat true?
A. Just if he had done a right side--an inspectionof the chair he would have found it.
(T2:127).
Q. And that would be pure speculation on your partto believe that that type of a testing would reveal a problem?
A. That type of testing will test the flexibility ofboth joints and if one is significantly more flexible thanthe other that would show a weaker joint.
(T2:135).
On redirect, the Friedrichs' expert made clear that because the joint ofthe chair
loosened slowly over time, the Fetterman firm should have discovered it:
8
Q. Is it because of the gradual loosening of the rightside over time that you believe a simple inspection wouldhave revealed that there's less of a bond on the rightside versus the left?
A. Yes. There would have been more flexibility onthe right side than the left, yes.
(T2:144). The Friedrichs' expert's testimony establishes that the Fetterman firm would
have discovered the dangerous condition if it had inspected its conference room chairs
(T2:101, 111-13, 117-19, 123, 128, 133, 135, 140, 144).
In Cox v. St. Josephs Hospital, 71 So. 3d 795, 799-801 (Fla. 2011), this Court
reiterated the well-settled principle that the district court cannot reweigh the testimony
of an expert witness. If the plaintiff's expert testifies that the defendant's conduct "more
likely than not" caused the injury, the resolution ofconflicting expert testimony "is a matter
for the jury, not a matter for the appellate court to resolve as a matter of law." Id. at 801. "If
the plaintiff has presented evidence that could support a finding that the defendant more
likely than not caused the injury, a directed verdict is improper." Id.
The Fourth District here made the same mistake as the district court in Cox. The
district court cannot take one sentence of testimony and ignore all the other evidence
presented in the case. It was for the jury to weigh and evaluate any discrepancies in the
testimony. Reversal for a directed verdict was improper. This Court should quash the
9
decision.
C. The Friedrichs' expert's opinion was not "new" and the Fettermanfirm did not preserve this argument.
The Answer Brief discounts the testimony of the Friedrichs' expert as "new
opinion" (AB:8-9, 13). His opinion -- that the Fetterman firm would have found the
dangerous condition in the chair with an inspection -- was not "new." But even if it
were, the Fetterman firm did not preserve this argument.
The Friedrichs' expert testified, without objection, that "a hands-on inspection of
the chair before the accident should have found the weak joint that caused this chair to
fail" (T2:101). When the Friedrichs' expert later testified that "a hands-on inspection
of the chair before the accident should have found this weak joint," counsel for the
Fetterman firm belatedly objected on two grounds: "speculation" and "lack of
predicate" (T2:111-12). The trial court overruled these objections (T2:111-12). The
Fetterman firm never objected on the basis that the expert opinion was "new"(T2:101,
111-12). This argument is not preserved. See Aills v. Boemi, 29 So. 3d 1105, 1108-
09 (Fla. 2010) (requiring "a timely, contemporaneous objection at the time of the
alleged error" that is "sufficiently specific to inform the court ofthe perceived error").
10
Even if the Fetterman firm had preserved this argument, the opinion of the
Friedrichs' expert was not a change in opinion that prejudiced the Fetterman firm
under Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981). The
Friedrichs disclosed this opinion before trial (R12:2215; R13:2419, 2443). The
Fetterman firm was not prejudiced because it responded with the contrary opinion of
its own expert (T7:779-85).
D. There is no need to remand for the Fourth District to considerwhether the verdict was against the manifest weight of the evidence.
The Fetterman firm also makes a token argument that if this Court quashes the
decision ofthe Fourth District, this Court should direct the Fourth District to consider
the Fetterman firm's argument that the verdict was against the manifest weight of the
evidence. There is no need for this Court to remand for the Fourth District to consider
this issue.
A trial court rules on a motion for new trial based on manifest weight after
"consider[ing] the credibility of the witnesses along with the weight of all the other
evidence." Brown v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999); see also
Ricks v. Loyola, 822 So. 2d 502, 506 (Fla. 2002) (recognizing "that trial courts have
broad discretion when ruling on motions for new trial"). Appellate courts "must
11
recognize the broad discretionary authority of the trial judge and apply the
reasonableness test to determine whether the trial judge committed an abuse of
discretion." Brown, 749 So. 2d at 497-98. Where the evidence supporting the jury's
verdict conflicts, the trial court acts reasonably in denying a motion for new trial based
on manifest weight. See Wiggins v. Sadow, 925 So. 2d 1152, 1155-56 (Fla. 4th DCA
2006).
As explained in parts A and B, supra, the Friedrichs presented sufficient
evidence for the jury to decide this issue. The evidence fully supports the verdict.
There is no need to remand for the Fourth District to consider this argument. This
Court should remand with instructions to reinstate the final judgment.
CONCLUSION
This Court should quash the decision of the Fourth District and reinstate the
final judgment for plaintiffs.
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Respectfully submitted,
REBECCA MERCIER VARGAS andJANE KREUSLER-WALSH ofKREUSLER-WALSH, COMPIANI & VARGAS, P.A.501 South Flagler Drive, Suite 503West Palm Beach, FL 33401-5913(561) [email protected]@[email protected]
andSCOTT B. SMITH andMARGARET M. BICHLER ofLYTAL, REITER, SMITH, IVEY & FRONRATH515 North Flagler Drive, 10th FloorWest Palm Beach, FL [email protected]@foryourrights.com(561) 655-1990Counsel for petitioners, Robert and Heather Friedrich
By: ((BECCA M CIER V
Florida Bar No. 0150037
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing has been furnished by e-mail this
day of December, 2012, to:
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ELIZABETH K. RUSSORUSSO APPELLATE FIRM, P.A.6101 Southwest 76th StreetMiami, FL [email protected]@russoappeals.comAppellate Counsel for respondent,
Fetterman & Associates
JULIE H. LITTKY-RUBINCLARK, FOUNTAIN, LA VISTA,PRATHER, KEEN & LITTKY-RUBIN, LLP
1919 N. Flagler Drive, Suite 200West Palm Beach, FL [email protected] for Amicus Curiae, FloridaJustice Association
DANIEL C. METHEKARA BERARD ROCKENBACHMETHE & ROCKENBACH, P.A.1555 Palm Beach Lakes BoulevardSuite 400West Palm Beach, FL [email protected]@flacivillaw.comCounsel for respondent, Fetterman &Associates
By: AREBECCA MERCIER AR SFlorida Bar No. 015003
CERTIFICATE OF FONT
Petitioners' Reply Brief on the Merits has been typed using the 14-point Times
New Roman font.
By LCREBECCA MERCIERFlorida Bar No. 0150037
14