IN THE SUPREME COURT STATE OF FLORIDA. CASE NO.: SC FOURTH DCA CASE NO.: 4D L.T. No.: (27)

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1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO.: SC FOURTH DCA CASE NO.: 4D L.T. No.: (27) ANNA JANE JOHNSON, individually and as Personal Representative of the Estate of Gene Johnson, v. Plaintiff/Petitioner BOCA RATON COMMUNITY HOSPITAL, INC., BETHESDA MEMORIAL HOSPITAL, INC., et al, Defendants/Respondents, DEFENDANTS/RESPONDENTS, BOCA RATON COMMUNITY HOSPITAL, INC. and BETHESDA MEMORIAL HOSPITAL, INC., AMENDED JURISDICTIONAL BRIEF Respectfully submitted, William T. Viergever Florida Bar No SONNEBORN RUTTER COONEY & KLINGENSMITH P.A Centrepark Drive North West Palm Beach, Florida Telephone: 561/ Facsimile: 561/ ATTORNEYS FOR DEFENDANTS BOCA RATON COMMUNITY HOSPITAL, INC. and BETHESDA MEMORIAL HOSPITAL, INC.

2 TABLE OF CONTENTS TABLE OF CITATIONS... iii ARGUMENT... 2 CONCLUSION... 7 CERTIFICATE OF SERVICE... 7 CERTIFICATE OF COMPLIANCE... 8 ii

3 TABLE OF CITATIONS Cases Page Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)...2, 7 Louisville and Nashville Railroad v. Yniestra, 21 Fla. 700 (1886) 2 Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).. 3, 5 Holl v. Talcott, 191 So. 2d 398 (sic) (Fla. 1966) 3, 4, 5 Bennet v. Mattison, 382 So. 2d 873 (Fla. 1 st DCA 1980)...5 Florida Power and Light Co. v. Robinson, 68 So. 2d 406 (Fla. 1953) 6 Weir v. Kristal Co., 612 So. 2d 665 (Fla. 1 st DCA 1993)...6, 7 iii

4 STATEMENT OF THE CASE AND FACTS This is a premises liability case. Plaintiff/Petitioner alleged that Mr. Johnson was exposed to asbestos when in the 1960 s he was working as a pipe insulator at the premises of the Hospitals operated by Respondents. She further alleged that the exposure caused Mr. Johnson harm. After extensive discovery it was determined that Plaintiff/Petitioner worked at the premises as an employee of an independent contractor hired by the Respondents. The Respondents moved for summary judgment based on the legal principle that a landowner is generally not liable for injuries sustained by employees of independent contractors hired to do work on the premises. Respondents further submitted the undisputed material facts that established that none of the exceptions to this general principle of non-liability existed in this case. The court heard argument, evaluated the record facts and granted summary judgment based on the well established law of non-liability in this context. Petitioner appealed to the Fourth District Court of Appeal. The Fourth District issued an opinion finding that the trial court had correctly applied the longstanding law of non-liability and further, that 1

5 the trial court had correctly concluded that the undisputed material facts established that none of the exceptions to the general rule of non-liability existed. SUMMARY OF THE ARGUMENT The decision of the Fourth District Court of Appeal in this case does not expressly and directly conflict with any other Florida District Court decision. ARGUMENT Petitioner asserts that the decision of the Fourth District Court of Appeal in this case is in express and direct conflict with Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). There is no conflict. In Jones the Florida Supreme Court receded from a prior ruling in Louisville and Nashville Railroad v. Yniestra, 21 Fla. 700 (1886), wherein the court had held that a plaintiff s contributory negligence was a complete bar to recovery. In Hoffman, the court replaced the contributory negligence doctrine with the doctrine of comparative negligence. Hoffman did not in any way involve premises liability law. The Fourth District in this case did not address the issue of comparative negligence versus contributory negligence. The court in this 2

6 premises liability case merely applied the facts of the case to existing premises liability law and held that based on the undisputed facts of the case the defendants owed no duty to plaintiff and therefore the trial court correctly granted summary judgment in favor of defendants. Petitioner next asserts that the decision of the Fourth District in this case on summary judgment standards, is in express and direct conflict with Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) and Holl v. Talcott, 191 So. 2d 398(sic) (Fla. 1966). There is no conflict. The court in Moore reiterated the well established standard for summary judgment stating: The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Id. At 668. The court in Moore went on to find that there was disputed record evidence on the issue of when parents in a medical malpractice case were on notice of the possibility of medical malpractice for purposes of beginning the running of the statute of limitations. 3

7 Likewise, the court in Holl reiterated the principle that: The rule simply is that the burden to prove the nonexistence of triable issues is on the moving party, and the burden on proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So. 2d 40, (Fla. 1966). The Fourth District s decision in this case in no way conflicts with these well established principles. The court in this case merely held that the undisputed facts showed that plaintiff was employed at all relevant times by an independent subcontractor and that the defendant hospitals did not actively supervise or directly influence the manner in which he performed his work or control the methods by which he performed and completed the work. The court also found that the independent contractor had the asbestos products brought onto the work site. Finally, the court found the dangerous condition complained of was not a latent condition on the premises, but rather a condition that arose as part of the contractor s work product after the contractor took control of the premises. The court then applied the well established principles state in 4

8 Moore and Holl to these undisputed facts and concluded that based on existing premises liability law, defendants did not owe plaintiff a duty and therefore the trial court correctly granted summary judgment if favor of defendants. Next, Petitioner asserts that the Fourth District s opinion in this case is in direct and express conflict with Bennet v. Mattison, 382 So. 2d 873 (Fla. 1 st DCA 1980). There is no conflict. Bennet was a premises liability case where a tenant slipped and fell on water in a common area of an apartment complex. Id. Owner/Defendant moved for directed verdict primarily on the grounds that there had been no proof of how or when the water which contributed to the fall came to be on the hallway floor. Id. The trial court granted the motion. The First District reversed finding that there had been repeated written and verbal warnings about the problem to the owner creating a jury question on the issue of whether the owner had exercised reasonable care. The court also pointed out that there was a statutory duty for the owner to maintain the common area and violation of that statue would also be evidence of negligence. Id. There was no issue in the case whatsoever regarding the limitations of premises liability in situations where the injured party is the employee 5

9 of an independent contractor hired by the premises owner. Here, the Fourth District s decision is premised solely on the application of the law regarding the duty owed to employees of independent contractors hired by the premises owner. Thus, there is no conflict. Petitioner asserts incidental conflict with Florida Power and Light Co. v. Robinson, 68 So. 2d 406 (Fla. 1953). There is no conflict. In this case the Fourth District cited a case, citing Robinson, for the proposition that [o]wner liability to employees of independent contractors may also attach when the owner, who has actual or constructive knowledge of latent or potential dangers on the premises, has breached a duty to warn employees of such danger. The Fourth District did not conflict with this holding, but rather found that based on the facts, the dangerous condition complained of was not a latent condition on the premises, but rather a condition that arose as part of the contractor s work product after the contractor took control of the premises. (emphasis added). Nothing in the District Court s decision in this case conflicts with Robinson. Finally, Petitioner states that she thinks she has shown express and direct conflict with Weir v. Krystal Co., 612 So. 2d 665 (Fla. 1 st DCA 6

10 1993). There is no conflict. Weir holds that a plaintiff s own negligence presents an issue of comparative negligence but does not completely bar recovery (citing the change brought about by Hoffman). Id. Here, there was no issue of comparative negligence because the Fourth District concluded that based on the undisputed evidence and the controlling premises liability law, Defendants owed no duty to plaintiff and therefore were entitled to the summary judgment granted by the trial court. Thus, there is no conflict with Weir. CONCLUSION For all the foregoing reasons, Defendants/Respondents, BOCA RATON COMMUNITY HOSPITAL, INC. and BETHESDA MEMORIAL HOSPITAL, INC., request that this Honorable Court decline to exercise its certiorari jurisdiction to review this case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by and U.S. Mail this 5th day of November, 2008, to Reed A. Bryan, Esquire, P.O. Box 2466, Fort Lauderdale, FL

11 CERTIFICATE OF FONT REQUIREMENTS I HEREBY CERTIFY that the font used is Times New Roman 14 point. SONNEBORN RUTTER COONEY & KLINGENSMITH P.A. Attorneys for Defendants/Respondents P.O. Box (zip ) 1545 Centrepark Drive North West Palm Beach, Florida / / facsimile By William T. Viergever FBN: