IN THE SUPREME COURT OF FLORIDA Case Number SC03-131 (Lower Tribunal # 3D00-3278) A.M. BEST ROOFING, INC., Petitioner, versus RICHARD KAYFETZ, Respondent. ON NOTICE TO INVOKE DISCRETIONARY CONFLICT JURISDICTION FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF FOR RESPONDENT ROSEN, SLATON & CLARK, LLP Bret Clark, Esquire FB #384038 Attorney for Respondent Alfred I. DuPont Building 169 East Flagler Street - Suite 1224 Miami, Florida 33131 Telephone: (305) 358-0058 Facsimile: (305) 358-1352
TABLE OF CONTENTS Cover Page i Table of Contents ii Table of Citations ii-iv Statement of the Case & of the Facts 1-4 Summary of the Argument 4 Argument: 4-9 Conclusion 10 Certificate of Service & of Compliance 10 TABLE OF CITATIONS Florida Supreme Court: Allstate Ins. Co. v. Vanater, 7 297 So.2d 293 (Fla.1974) Ansin v. Thurston, 8 101 So.2d 808, 810 (Fla. 1958) Angrand v. Key, 5 657 So.2d 1146 (Fla. 1995) - ii -
Gurganus v. State, 5 451 So.2d 817 (Fla. 1984) Jenkins v. State, 8-9 385 So.2d 1356 (Fla. 1980) Reaves v. State, 1, n.1 485 So.2d 829 (Fla. 1986) Town of Palm Beach v. Palm Beach County, 5 460 So2d 879 (Fla. 1984) District Courts of Appeal: Brescher v. Pirez, 5 696 So.2d 370 (Fla. 4 th DCA 1997) Fino v. Nodine, 5 646 So.2d 746 (Fla. 4 th DCA 1994) Gulley v. Pierce, 5, 6 625 So.2d 45 (Fla. 1 st DCA 1993) Jacobs v. Westgate, 7 766 So.2d 1175 (Fla. 3 rd DCA 2000) Kayfetz v. Best, 1-4, 10 832 So.2d 784 (Fla. 3 rd DCA 2002) Poole v. Lowell Dunn Co., 7 573 So.2d 51 (Fla. 3d DCA 1990) Schneer v. Allstate, 5 767 So.2d 485 (Fla. 3 rd DCA 2000) - iii -
Shaw v. State, 5 557 So.2d 77 (Fla. 1 st DCA 1990) Smith v. Martin, 5 707 So.2d 924 (Fla. 4 th DCA 1998) Volusia County v. Kemp, 5 764 So.2d 770 (Fla. 5 th DCA 2000) Wal-Mart Stores, Inc. v. Rogers, 7 714 So. 2d 577 (Fla. 1st DCA 1998) Other Authorities: 90.702 5 Charles W. Ehrhardt, 5 Florida Evidence 703.1 (2000) - iv -
STATEMENT OF THE CASE & OF THE FACTS Richard Kayfetz hired AM Best Roofing to do roof repairs on his home. Kayfetz v. Best, 832 So.2d 784, 785 (Fla. 3 rd DCA 2002) 1. With its permission, he ascended to the roof using the ladder positioned against his home by AM Best. Id. On his way down, AM Best s ladder, which was not secured, slipped away from the roof, causing Mr. Kayfetz to fall to the ground and sustain severe injuries. Id. Kayfetz filed a case of simple negligence, saying that AM Best was negligent for failing to properly position, secure or maintain the ladder. Id. Contributing to the accident was the fact that the rubber footings on the ladder were excessively worn. Id. He did not assert any theory of liability based on product liability law, including 1 For purposes of reviewing whether the Court has jurisdiction, the facts of the case are limited in this brief to those presented in the four corners of the district court opinion. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). This is in contrast to the jurisdictional brief filed by petitioner, which makes the common error made in preparing jurisdictional briefs : The only facts relevant are those facts contained within the four corners of the decisions allegedly in conflict. * * * it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below * * *. 485 So.2d 830, n.3. - 1 -
any claim that AM Best knew of the dangerous condition of the ladder 2, and had breached a duty to warn him of that danger. 832 So.2d 786. His is a case of simple negligence. In the trial court, AM Best argued that, because Kayfetz had applied for the permit allowing it to do the roof repairs to his home, he was solely responsible for the negligent placement of the unsecured ladder, citing the South Florida Building Code. Id. This argument was made in the form of expert testimony, which, in substance told the jury that the only person responsible was the plaintiff, and this necessarily informed the jury that the defendant roofer owed no duty of care to the plaintiff. Id. at n.2. Having been incorrectly misled by expert testimony that Mr. Kayfetz obligations under the South Florida Building Code excused [AM Best Roofing] of its responsibilities under Florida tort law, 832 So.2d 786, the jury rendered a verdict in favor of the defense. The jury was further misled by an instruction fashioned from a portion of product liability law concerning the duty of a defendant to warn of hidden or latent defects. Id. This instruction supplemented the standard negligence instruction 2 There is no evidence contained in the opinion, or otherwise, that AM Best was in fact aware of an unreasonably dangerous condition of the ladder triggering a duty to warn Mr. Kayfetz of this danger.
approved for use by this Court to say that AM Best had no duty to warn of any readily observable or patent defect in the ladder, that is, a condition which a mere casual looking-over will disclose. Id. The district court reversed the resulting judgment in favor of AM Best. The court agreed that the defense expert gave inadmissible testimony as to his opinion of Plaintiff s responsibilities under the South Florida Building Code, essentially instructing the jury on the issue of legal liability in this case. 832 So.2d 786. The court found that the expert was not permitted to instruct the jury concerning his beliefs as to how to apply these rules of the code to the facts before them, especially since this opinion likely led the jury to incorrectly conclude that the code excused AM Best from any responsibility under the tort law of Florida. Id. Noting that Mr. Kayfetz case is one of simple negligence, the court found the product liability instruction given to the jury to be error. The court concluded that the instruction did not fit the facts of the case, because the ladder was already in place when Mr. Kayfetz used it, and so there was no reason for him to pick up the ladder and examine the feet. Id. Since the product liability instruction also did not apply to - 3 -
the theory of Mr. Kayfetz simple negligence case 3, giving the instruction was error. Id. SUMMARY OF THE ARGUMENT Expert witnesses are not permitted to give their opinion of what the law is, and how a jury must apply that law. This is particularly true when the expert tells the jury to apply a law that does not exist to the facts. Similarly, juries may not be misled by instructions that do not involve the issues presented by the case, do not fit the facts of the case, and are misleading. These basic principles of law, applied by the district court, are not novel or complex, and do not conflict with any decision of any court. This Court does not have jurisdiction to review such decisions ARGUMENT An expert witness may offer an opinion, based upon sound reasoning on a subject matter not familiar to a jury that will assist a jury "in understanding the evidence or in determining a fact in issue." Florida Statutes 90.702; Angrand v. Key, 657 So.2d 1146 (Fla. 1995); Fino v. Nodine, 646 So.2d 746 (Fla. 4 th DCA 1994). Expert 3 The court correctly lists the elements Mr. Kayfetz needed to prove in order to recover on his simple negligence claim, 832 So.2d 786, which are covered by the standard negligence instruction approved by this Court.
testimony on subjects within the common understanding of jurors, or that tells jurors how to decide a case, however, are not admissible. Angrand; Town of Palm Beach v. Palm Beach County, 460 So2d 879 (Fla. 1984); Fino v. Nodine. As the Third District Court had previously explained: "Witnesses will be prevented from expressing their conclusions when the opinion only tells the jury how to decide the case and does not help the jury to determine what occurred." Schneer v. Allstate, 767 So.2d 485, 488 (Fla. 3 rd DCA 2000), quoting Charles W. Ehrhardt, Florida Evidence 703.1 (2000)(citations omitted). An expert is not permitted to render an opinion that purports to apply a legal standard to the facts of the case. Town of Palm Beach; Gurganus v. State, 451 So.2d 817 (Fla. 1984); Volusia County v. Kemp, 764 So.2d 770 (Fla. 5 th DCA 2000); Smith v. Martin, 707 So.2d 924 (Fla. 4 th DCA 1998); Gulley v. Pierce, 625 So.2d 45 (Fla. 1 st DCA 1993); Shaw v. State, 557 So.2d 77 (Fla. 1 st DCA 1990); cf. Brescher v. Pirez, 696 So.2d 370, 374 n.2 (Fla. 4 th DCA 1997). One court explained the obvious reason why the role of an expert is not to enlighten jurors on what he may believe the law to be: - 5 -
This type of testimony should be excluded because it interferes with the trial court's function of determining the applicable law and instructing the jury thereon. Gulley, 625 So.2d 51 (citation omitted). The district court here followed these elementary principles of law, with which no court is known to disagree. The South Florida Building Code does not excuse the negligence of a roofing contractor, established by basic Florida tort law, simply because a homeowner applies for a permit 4. In applying this incorrect, indeed fanciful, rule of law to the facts of the case, the expert testimony did not merely assist[] the jury in understanding technical issues as is represented before this Court. Jurisdictional Brief of Petitioner at 6. The testimony applied a pure question of law to the facts, instructing the jury how to decide the case, and to do so contrary to the law. The district court did not stray from any precedent of any court in any jurisdiction in reaching the inescapable conclusion that the testimony was inadmissible. Similarly, AM Best s jury instruction was designed to mislead, not properly guide the jury. Mr. Kayfetz case is and always has been a simple case of negligence. He never alleged that AM Best, knowing the ladder to be unreasonably dangerous, breached a duty to warn him of this danger, nor did his case contain any other feature 4 AM Best on appeal declined to continue to advocate this peculiar rule of law, which was its primary defense in the trial court.
of product liability law that AM Best now wishes to insert into the case. An elementary rule of law, followed by the district court, is that jurors may not be instructed on issues not before them. Jacobs v. Westgate, 766 So.2d 1175 (Fla. 3 rd DCA 2000), citing Wal-Mart Stores, Inc. v. Rogers, 714 So. 2d 577 (Fla. 1st DCA 1998). The district court here followed this basic rule of law. A jury instruction that tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that they otherwise would not have reached. 766 So.2d 1175, 1180, citing Allstate Ins. Co. v. Vanater, 297 So.2d 293, 295 (Fla.1974); Poole v. Lowell Dunn Co., 573 So.2d 51 (Fla. 3d DCA 1990). The decision of the district court in this case, far from being in conflict with any decision of any court, is in fact the natural consequence of basic errors of law that AM Best insisted be made in the trial court, and that the district court was duty bound to correct. These errors were so basic that the opinion of the district court is remarkable only for its simplicity, citing virtually none of the cases upon which AM Best now claims conflict. - 7 -
There is in these circumstances no real conflict jurisdiction for this Court to assert. By asking this Court to review the case, AM Best in effect asks the Court to ignore the constitutional limitations on the power of the Court to review cases, altering the character of the district courts from being courts whose review in most instances are final and absolute, to courts that merely serve as intermediate courts through which litigants must travel before seeking review of issues presented in their cases in this Court. As explained by the Court in Jenkins v. State, 385 So.2d 1356 (Fla. 1980), the role AM Best seeks to foist upon the Court as the final arbiter of all issues presented by every case within the court system is neither that intended by the constitution nor one that is desirable. Quoting from Ansin v. Thurston, 101 So.2d 808, 810 (Fla. 1958), this Court said: We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice.
385 So.2d 1357-8 (citations omitted). The constitution embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute. Id. at 1358. The Court should not accept the invitation made by AM Best Roofing in this case to now relegate the district courts to the role of a way station on the road to review in every case that must now be had before this Court, no matter how basic and fundamental the issues argued and decided in the lower courts. As this Court found: To fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy. 385 So.2d 1357-8 - 9 -
CONCLUSION The opinion in Kayfetz v. Best, 832 So.2d 784 (Fla. 3 rd DCA 2002) does not conflict with a decision of any court on any issue of law, either expressly or by implication, nor directly or indirectly. This Court therefore has no jurisdiction to review the decision, and no compelling reason to do so, given the basic propositions of law correctly applied by the district court. CERTIFICATE OF SERVICE & OF COMPLIANCE I HEREBY CERTIFY that a true and correct copy of the foregoing was caused to be served by mail on February 17, 2003, upon Scott Forman, Esquire, of Vernis & Bowling of Miami, P.A., 1680 Northeast 135th Street, Second Floor, North Miami, FL 33181, and that the brief was printed using 14-point Times New Roman font in compliance with Rule 9.210(a)(2). Respectfully submitted, ROSEN, SLATON & CLARK, LLP Alfred I. DuPont Building 169 East Flagler Street- Suite 1224 Miami, Florida 33131 Telephone: (305) 358-0058 Facsimile: (305) 358-1352 BRET SHAWN CLARK FB#384038 Attorney for Richard Kayfetz
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