IN THE SUPREME COURT STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA ANNA JOHNSON, individually and as personal representative of the Estate of Gene Johnson, Plaintiff/Petitioner Case No.SC v. BOCA RATON COMMUNITY HOSPITAL, Inc. and BETHESDA MEMORIAL HOSPITAL, Inc., Defendants/Respondents, Petition for Discretionary Review of the District Court of Appeal, Fourth District L.T. Case No. 4D PLAINTIFF/PETITIONER=S BRIEF ON JURISDICTION Reed A. Bryan, Esq. P. O. Box 2466 Fort Lauderdale, Florida Phone: (954) Fax: (954) FBN 9763

2 PREFACE This jurisdictional brief is filed to support discretionary review by this court pursuant to Fla. R. App. P (a)(2)(A)(iv). Petitioner and her decedent will be referred to by name, or Respondents will be referred to as or as ABoca or ABethesda STATEMENT OF THE FACTS AND CASE &STANDARD OF REVIEW Anna and Gene Johnson sued Boca and Bethesda Hospitals for negligence based on the Hospitals= having chosen, approved and specified asbestos insulation for use on their premises in the early 1960's. During that time Gene Johnson worked as an insulator employed by an insulation contractor, Southern Insulation, in turn employed by the Hospitals in construction projects. At the Hospitals= construction sites Mr. Johnson was exposed to asbestos dust which contributed substantially to his later induction of lung cancer from which he died on March 5, Plaintiff contends the Hospitals knew or should have known that asbestos exposure caused asbestosis, lung cancer and other cancers and should have warned Mr. Johnson or his employers of this hazard, or should have avoided exposing him to the hazard by choosing insulation materials that did not contain asbestos, or should have taken other measures for his safety, since it was clear that he was not himself taking such measures. Defendants denied negligence and affirmatively raised comparative 1

3 negligence and independent contractor defenses. Defendants moved for summary judgment arguing that they didn=t interfere with Mr. Johnson=s work and that Mr. Johnson already had knowledge of the health hazards of asbestos that was superior or at least equal to their own. Plaintiff argued that the non-interference was immaterial since plaintiff never claimed interference: plaintiff=s claim was under Restatement (Second) of Torts, section 414 based on defendants= retention of control in the selection of insulation materials containing asbestos. Plaintiff filed an affidavit in opposition of Dr. Douglas Pohl establishing that the medical community knew that asbestos was a strong carcinogen, especially respecting lung cancer (peer-reviewed articles and medical texts published ), that the Hospitals were part of this medical community, that their assertions that Gene Johnson=s understanding of asbestos hazards was in any way comparable to theirs was plain wrong, and that laymen like Mr. Johnson did not become aware of these dangers until the 1980's. The Hospitals argued that Gene Johnson may have had no actual knowledge of asbestos hazards, but he had constructive knowledge because in August of 1962, Dr. Irving Selikoff gave a brief talk to the leadership of the insulators union at the international meeting in Atlantic City, New Jersey that was reprinted in part in The Asbestos Worker issue for November, Though the 2

4 evidence indicates that Mr. Johnson never received or saw the article, it was considered constructive knowledge of the health hazards of asbestos exposure. Summary Judgment was granted and appealed to the District Court of Appeal, Fourth District. The district court rendered the decision attached hereto. We believe the district court=s decision is in conflict with Hoffman v. Jones, 280 So.2d 431 (Fla. 1973) and other cases and pray that this court will exercise discretionary review. The standard of review is de novo. Florida Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006). SUMMARY OF ARGUMENT The district court decision finds evidence in the record showing that the Hospitals knew or should have known of the dangers of asbestos in the early 1960's, but also that Gene Johnson had constructive knowledge of the risks of asbestos work. Constructive knowledge is a source by which what a party Ashould have known,@ is determined. It is a fact-intensive inquiry and no proper basis for summary judgment. The only record evidence of a comparison of levels of knowledge as between Gene Johnson and the Hospitals is found in Dr. Pohl=s affidavit. This evidence shows that the Hospitals= levels of knowledge were far greater than Mr. Johnson=s; the Hospitals offered nothingbno showing whatsoeverbof their levels of knowledge. Since there was no showing, only argument that Gene Johnson had Asuperior knowledge@ of the

5 3 dangers of asbestos, defendants failed to carry their burden on summary judgment conclusively to establish that they did not have superior knowledge and, thus, did not have a duty to warn. 5 Further, the duty to warn was not the only duty these Hospitals owed to this invitee. They also owed duties to provide and maintain their premises in reasonably safe conditionbnot heavily contaminated with a carcinogen known to them for almost 20 years before Gene Johnson=s career as an insulator even began. Other measures could have been taken to protect, or lessen the risks to Mr. Johnson, but were not. ARGUMENT 1. Basic conflicts with Hoffman v. Jones. In Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), this court abrogated contributory negligence as a complete defense and adopted pure form comparative negligence to take its place. The case of which we now seek review, Johnson v. Boca Raton Community Hospital, Inc., 985 So.2d 593, 33 FLW D1459 (Fla. 4 th DCA June 4, 2008), on reflection, seems to have found its way via wormhole through space and time to a place where contributory negligence is once again viable as a complete defense. The case could become a misleading precedent. It holds that summary final judgment for defendants is appropriate in the face of plaintiff=s showing that

6 4 defendants knew or should have known that asbestos dust exposure was a potent causal factor for lung cancer, while defendants showed some disputed evidence of decedent=s constructive knowledge of Athe risks of asbestos work.@ App.p. 3. As previously recognized in numerous decisions, prior to the supreme court=s adoption of comparative negligence, a plaintiff was barred from recovery where the dangerous condition was open and obvious, because plaintiff was bound to know what was there and foresee its danger. But now such knowledge presents only an issue of comparative negligence that does not completely bar recovery, unless plaintiff=s negligence (alone or in conjunction with that of another or others) is the sole proximate cause of plaintiff=s injuries. The degree to which a plaintiff caused his own injuries because of his awareness of the dangerous condition or his own actions is a jury question. Weir v. Krystal Co., 612 So.2d 665 (Fla. 1 st DCA 1993) and cases cited therein. AConstructive knowledge is a fact-intensive issue based on information that a party >should have known.=@ Sutherland v. Pell, 738 So.2d 1016 (Fla. 2d DCA 1999). Whether an individual has exercised due care for his own safety requires consideration, inter alia, of his age, intelligence, experience, knowledge, physical condition and sensibility affecting his ability to detect a dangerous condition or

7 appreciate the degree of hazard involved in conditions actually observed. See 6 5 West=s Florida Practice, Torts sec. 5.3 It is axiomatic that any relevant knowledge should be useful knowledgebsomething that will impart understanding that plaintiff can use for his protection. What type of knowledge is critical here? Categorically, it is medical knowledge. What kind of knowledge did Gene Johnson have? The practical knowledge of a journeyman insulator: how to cut, shape, sand, apply and install insulation. That was his field of knowledge. He testified that he had no actual knowledge of the carcinogenic properties of asbestos until the mid 1980's when the doctor who diagnosed him with asbestosis explained that his asbestos exposure from 12 to 20 years earlier had put him at considerable risk for lung cancer. He testified that his understanding of the Ahazards@ of asbestos work at the time he was doing it was that it was very dusty and dirty and it was a nuisance to have to put up with it. The Selikoff reprint is in the record. A jury should decide whether or to what extent it would have been useful to Gene Johnson in protecting himself. Compare Pohl affidavitbespecially regarding the Selikoff reprint. The array of conflicting inferences is abundant. Decedent=s exposures at Boca Hospital and Bethesda Hospital may even have all antedated the Selikoff reprint. The decision, as to summary judgment standards, is in direct conflict with Moore v. Morris, 475 So.2d 666, 668

8 (Fla. 1985) and Holl v. Talcott, 191 So.2d 398 (Fla. 1966) Incidental Conflict with Florida Power & Light Co. v. Robinson. In Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla. 1953) this court adopted the rule allowing an owner to discharge his duty to warn an inviteeemployee of an independent contractor of a potential danger he may encounter on the property during the course of his work by giving the warning to supervisory personnel of the independent contractor. Although this court did not go into detail as to the reasoning behind the rule, it adopted the rule from Storm v. New York Telephone Co., 200 N.E. 659, (N.Y. 1936). Special warnings given by the landowner to supervisory personnel of the independent contractor are considered constructive knowledge to the employee because of the special relationship between employer and employee whereby it may reasonably be presumed that the special warning will be communicated in ordinary course to all affected employees on the work site. It is to allow the owner to utilize a channel of communication already in place with the independent contractor, because the owner could not reasonably have such a channel of communication with each affected employee of the independent contractor. The warning must convey useful knowledge as noted above. The information conveyed

9 may be insufficient as so held by the Robinson court. 68 So.2d 406 at We think the rule was misapplied in the case attached hereto because the record demonstrates that the Hospitals never warned anybody about anything material to 7 asbesos hazards. But the attached opinion seems to rely so heavily on the F.P.L. v. Robinson case and its progeny that it appears to hold that almost any quantum of constructive knowledge on the part of the employee brings the rule into play. 3. Equal or Superior Knowledge Florida courts formerly held that a business invitee=s equal or superior knowledge of a special hazard discharges the owner=s duty to warn. This knowledge is usually practical specialized knowledge of an expert or skilled invitee. See, e.g. Ayala v. J. M. Fields, Inc., 390 So.2d 166 (Fla. 5 th DCA 1980). In our case as noted above, Gene Johnson=s practical specialized knowledge was in the field of applying and working with insulation products; the owner=s knowledge was in the field of the etiology of asbestos diseasebparticularly lung cancer. The two are not in parity. There is no attribution of superior knowledge where the fields of knowledge are different. Melton v. Estes, 379 So.2d 961 ( Fla. 1 st DCA 1979). The attached opinion finds that the danger was a latent potential danger, and the only such risk here is the risk of contracting asbestos disease. The only showing is that Mr. Johnson=s actual or

10 constructive knowledge there was far less than defendant-owners=. Squiteri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5 th DCA 1980). (Summary judgment improperly entered where issue of plaintiff=s knowledge of latent defect could be less that defendant=s). The Second District has called into question whether 8 this rule has also been subsumed into comparative negligence. Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2 nd DCA 1980). See also Miller v. Slabaugh, 909 So.2d 588, at 589 (Fla. 2 nd DCA 2005). And in the First District case, Bennett v. Mattison, 382 So.2d 873 (Fla. 1 st DCA 1980), the rule is stated: Appellees argue that Melena=s recovery is barred because of her superior knowledge of the slippery condition of the hallway. We reject this argument for two reasons. First, whether Melena had superior knowledge is a question for the jury. Second, Melena=s knowledge, if any, would present an issue of comparative negligence and would not bar her recovery. 382 So.2d at 875. Now, the rule seems to be that a plaintiff=s knowledge of a dangerous condition does not negate a defendant=s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment. Lynch v. Brown, 489 So.2d 65 (Fla. 1 st DCA 1986). An invitee=s knowledge of danger is not a complete bar to recovery, but rather triggers comparative negligence. Knight v. Waltman, 774 So.2d 731 (Fla. 2 nd DCA 2000). Since the

11 holding of the attached opinion appears based on Mr. Johnson=s superior knowledge of cancer etiology inherent in this latent hazard, there is at least a potential conflict with the newer rule. CONCLUSION We think we have shown that the attached district court decision in this case is in express and direct conflict with Hoffman v. Jones, supra, and with the recent cases enunciating the rule taking the place of the Asuperior knowledge@ rule; these cases are in harmony with Hoffman. Even under the old rule of Asuperior knowledge@ summary judgment could not be affirmed. Our second point may not be jurisdictional depending on how the attached decision is interpreted. Several other issues inhere in this troublesome opinion, but they are not jurisdictional. Knowledge, actual or constructive, exists and develops along a continuum. There is not simply ignorance or knowledge. Depending on the person and the circumstances, ignorance gives way to suspicion and then to speculation. Pursued further, conjecture is next; and if you are educated and of a bent and in a position to carry the inquiry to the scientific level, a hypothesis follows, and if you=re in a lab, university, hospital, or funds are otherwise available, studies, experiments, and tests are conducted which, if determinative are written and submitted for peer review. If passed and approved, your results will likely be published and become part of the 13

12 medical literature: reasonable medical certainty is reached and available to the medical community. Where on this spectrum do the parties to this controversy lie? We don=t contend that Gene Johnson began and ended in ignorance. But we doubt whether his level of knowledge of asbestos disease ever progressed beyond speculationba level not even legally recognized. Perhaps the most widely used reference work in our society is Webster=s New Collegiate Dictionary. The Ninth Edition (1984) defines as Aa mineral (as chrysotile) that readily separates into long flexible fibers suitable for use as a noncombustible, nonconducting, or chemically resistant material.@ 9 th Ed. p The Tenth Edition (1993) defines Aasbestos@ as Aany of several minerals (as chrysotile) that readily separate into long flexible fibers, that have been implicated as causes of certain cancers, and that have been used esp. formerly as fireproof insulating materials.@ 10 th Ed. p. 66. So now we know. But these Hospitals knew to a scientific certainty fifty years sooner. In the interim, like lambs to slaughter, went good men like Gene Johnson. This court should exercise its discretion to review and quash the attached decision of the district court, and remand this case to the district court with directions to reverse the summary final judgment in favor of Boca Hospital and Bethesda Hospital and remand this case to the circuit court for trial. 13

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing brief has been served by U. S. mail upon counsel for appellees listed on the attached Standard Appellate Service List this 5 th day of September, CERTIFICATE OF COMPLIANCE I HEREBY FURTHER CERTIFY that this brief has been prepared in WordPerfect with 14 point Times New Roman font and otherwise conforms to the requirements of Fla. R. App. P Reed A. Bryan, Esq. P. O. Box 2466 Fort Lauderdale, Florida Phone: (954) Fax: (954) FBN 9763 Counsel for Plaintiff/Petitioner Reed A. Bryan Z:\HSR Files\Bryan.Brief.wpd 13