IN THE SUPREME COURT OF FLORIDA. Case No.

IN THE SUPREME COURT OF FLORIDA Case No. JOSEPH GYONGYOSI, individually, EVA GYONGYOSI, individually, and ARTHUR L. CARTER, individually and collectively f/u/b/o FEDERAL INSURANCE COMPANY, etc. Petitioners/Plaintiffs, vs. ALAN MILLER and JILL MILLER, Respondents/Defendants. On Appeal from The District Court of Appeal Fourth District, State of Florida Case No. 4D10-483 PETITIONERS BRIEF ON JURISDICTION CRAIG M. GREENE, ESQ. 4000 Hollywood Boulevard, Suite 485-South Hollywood, FL 33021 (954) 966-2112 Florida Bar No. 618421 cgreene@kramergreen.com ROBERT I. BUCHSBAUM, ESQ. 4000 Hollywood Boulevard Suite 485 South Hollywood, FL 33021 (954) 966-2112 Florida Bar No. 586048 rbuchsbaum@kramergreen.com

MICHAEL J. FERRIN, ESQ. 823 North Olive Avenue West Palm Beach, FL 33401 (561) 683-4000 Florida Bar No. 285900 mjf@ferrinlaw.com PAUL BARTOLACCI, ESQ. 1900 Market Street Philadelphia, PA 19103 (215) 665-2001 Pennsylvania Bar No. 39378 pbartolacci@cozen.com

TABLE OF CONTENTS Table of Contents... i Table of Authorities... ii Statement of the Case and Facts... 1 Summary of Argument... 2 Argument... 3 The Opinion Below Expressly and Directly Conflicts With Noa v. United Gas Pipeline Co., 305 So.2d 182 (Fla. 1974) and Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001).... 4 The Opinion Below Expressly and Directly Conflicts With Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla. 1964) and Doak v. Green, 677 So.2d 301 (Fla. 1 st DCA 1996)... 7 Conclusion... 10 Certificate of Service... 11 Certificate of Typeface Compliance... 13 i

TABLE OF AUTHORITIES Cases City of Miami v. Jafra Steel Corp. 184 So.2d 178, 180 (Fla. 1966) )... 3 D Olea Valdez v. State 531 So.2d 1347, 1348 (Fla. 1988)... 3 Doak v. Green, 677 So.2d 301, 302 (Fla. 1 st DCA 1996)... 7, 8 Florida Hematology & Oncology Specialists v. Tummala 969 So.2d 316, 318 n. 1 (Fla. 2007)... 3 Florida Power and Light Co. v. Price, 170 So.2d 293,295-96 (Fla. 1964)... 7, 8 Neilson v. Sarasota, 117 So.2d 731, 735 (Fla. 1960)... 4 Noa v. United Gas Pipeline Co., 305 So.2d 182, 186 (Fla. 1974)... 4, 5, 6, 9 Owens v. Publix Supermarkets, Inc. 802 So.2d 315, 329 (Fla. 2001)... 4, 7, 10 Tobkin v. Jarboe 710 So.2d 975 (Fla. 1998)... 3 Other Authorities Fla. Const. Art. V, 3(b)(3)... 3 Fla.R.App.P. 9.030(a)(2)(A)(iv)... 3 Fla.R.App.P. 9.210(a)(2)... 3 ii

NFPA 241... 2, 5, 6, 7 Florida Standard Jury Instruction 401.14c... 8 iii

STATEMENT OF THE CASE AND FACTS This case arises out of a liquid propane gas explosion at the home of the Millers on February 6, 2000. Op. at 1. The explosion damaged neighboring properties owned by the Gyongyosis and Carter who, along with the insurance companies subrogated to the rights of the insured property owners for damages paid, sued the Millers. Op. at 1. The complaints were ultimately consolidated, and included counts for negligence, negligence based on violations of various statutory, gas and building code provisions, and vicarious liability. Op. at 1. The Millers hired Timothy Menzer to replace tiles on the sundeck roof right over the garage. Located below the sundeck roof was liquid propane gas piping suspended by hangers attached to the underside of the sundeck. Menzer used a demolition hammer to remove the tiles. Petitioners/Plaintiffs experts opined that the use of the demolition hammer caused two hangers to fall out of their attachment points to the sundeck. This allowed the propane piping to sag and ultimately fracture at an elbow joint. Gas leaking from the fractured elbow joint was ignited by a water heater pilot light, resulting in the explosion. Op. at 2. The investigators from the Florida State Fire Marshal s office reached the same conclusions as to the cause of the explosion. On directed verdict motions by the Millers, the trial court unilaterally determined that the work performed by Menzer was not demolition, and thus 1

precluded Petitioners/Plaintiffs expert from testifying regarding his opinion that, according to industry standards, Menzer s work constituted demolition. After refusing to permit expert testimony on that issue and applying its own definition of demolition, the trial court determined that Menzer s work was not covered by NFPA 241 safeguards and granted a directed verdict. The trial court also decided that the work performed by Menzer was not an ultra-hazardous activity. Op. at 3. With no mention of the evidence in Petitioners/Plaintiffs favor which contraindicated the granting of a directed verdict, the Fourth District affirmed the trial court s rulings in every respect. It was determined that the word demolition in the NFPA does not create any ambiguity regarding expert testimony to assist the trier of fact in applying the pertinent regulation. Op. at 5. Also affirmed was the trial court finding that the removal of sundeck tiles with a demolition hammer right above partially visible gas piping was not ultra-hazardous. Op. at 6-7. Finally, also affirmed was the trial court finding that the Miller had no duty to advise [Menzer] about gas piping, which they had no knowledge of Op. at 9. SUMMARY OF ARGUMENT In its February 15, 2012 decision affirming the trial court s entry of directed verdicts in favor of the Respondents/Defendants, the Fourth District precluded expert testimony which would have assisted the jury in determining whether fire 2

and explosion safety regulations were applicable, held that a jury could not reasonably conclude that using a demolition hammer above an area which the Millers knew or should have known contained a suspended gas line was inherently dangerous and, in doing so, followed the trial court in resolving significant questions of fact in such a way that did not favor the nonmoving parties. The Fourth District s decision expressly and directly conflicts with prior decisions of this Court and other district courts of appeal. This Court should therefore exercise discretionary jurisdiction over this appeal pursuant to Article V, Section 3(b)(3) of the Florida Constitution and Fla.R.App.P. 9.030(a)(2)(A)(iv). ARGUMENT The Florida Constitution and the Florida Rules of Appellate Procedure authorize this Court to exercise discretionary jurisdiction to review a district court of appeal decision when such a decision expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. Const. Art. V, 3(b)(3); Fla.R.App.P. 9.030(a)(2)(A)(iv). 1 While conceivably there may be other circumstances, the principal situations justifying the invocation of [this Court s] jurisdiction to review decisions of Courts 1 Through the years this Court has also accepted discretionary jurisdiction in cases where even an apparent conflict is present. Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998); Florida Hematology & Oncology Specialists v. Tummala, 969 So.2d 316, 318 n. 1 (Fla. 2007); D Olea Valdez v. State, 531 So.2d 1347, 1348 (Fla. 1988); City of Miami v. Jafra Steel Corp., 184 So.2d 178, 180 (Fla. 1966). 3

of Appeal because of alleged conflicts are, (1) the announcement a rule of law which conflicts with a rule previously announced by this court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Neilson v. Sarasota, 117 So.2d 731, 735 (Fla. 1960) (italics in original). The present case falls precisely within the purview of discretionary review on the following three points: (1) the admissibility of expert evidence to assist the jury in determining the applicability of a regulation; (2) the extent to which a jury should have been allowed to conclude whether the Millers conduct was ultrahazardous/inherently dangerous; and (3) whether the court failed to resolve all factual disputes, for purposes of a directed verdict, by not viewing all evidence and by drawing every plausible inference in favor of the nonmoving Petitioners/Plaintiffs. 2 In all respects, the Fourth District reached results that conflict with the prior opinions of this Court and of other district courts of appeal. 3 The Opinion Below Expressly and Directly Conflicts With Noa v. United Gas Pipeline Co., 305 So.2d 182 (Fla. 1974) and Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001). In Noa, this Court clearly established that expert testimony should be 2 Though listed as three separate arguments, because the third point focuses on the court s treatment of the evidence, it is necessarily interwoven within the other arguments. 3 At the very least, the Fourth District s opinion certainly presents an apparent conflict sufficient to warrant the acceptance of discretionary jurisdiction by this Court. 4

introduced to elucidate a clearer understanding of safety regulations and their practical application for the benefit of the jury in resolving [a] factual issue of the case. Noa, 305 So.2d at 185. This Court also admonished lower courts not to substitute[] [their] factual judgment for that of the jury when determining whether a set of facts fall within the ambit of a proffered regulation. Noa 305 So.2d at 186. In reversing the district court s refusal to allow expert testimony in Noa, this Court, without equivocation, stated that the legal basis for expert testimony was to aid the jury in determining factually whether the spurline leading from the main pipeline was a service line within the contemplation of the regulations, and determined that this was a question which was not readily answerable by the trial judge referring to the cold language of the regulations. Id. at 185. In Noa (as in this case), the issue was the practical applicability of the regulations to the gas line that exploded. Id. at 185. The case turned on whether or not a gas line was a service line within the contemplation of a specific regulation. Id. If it were a service line to a customer, then odorization was required [under the regulation at issue]; if it were not a service line, then odorization was not required. Id. In the present case, the issue is exactly the same, and just as critical. If Menzer s use of a demolition hammer to excavate tile from the Millers sundeck was demolition within the meaning of the NFPA 5

regulations, certain safeguards under NFPA 241 had to be followed; if not, those safeguards did not apply. Under this Court s precedent, this issue was clearly a question of fact, and the matter should not have been taken away from the jury. Pursuant to Noa, expert testimony should have been permitted to assist the jury in answering that question. Id. at 186. In considering this issue on appeal, the Fourth District concluded that [t]his case is readily distinguishable from Noa because the opinion of the Plaintiffs expert was based on [his] own definition of demolition. Op. at 5 (italics in original). This purported distinction, however, did not consider that the evidence was that the expert s opinion on demolition was not his own, but was based on governing industry standards. In creating a distinction that is belied by the record and is contrary to Noa, the Fourth District conflicted with Noa s clear applicability. The decision not to apply Noa also engendered two other evidentiary impacts. First, the Fourth District unnecessarily applied the American Heritage Dictionary, Blacks Law Dictionary and its own subjective concept of common sense (Op. at 6), when expert testimony relating to demolition was necessary. And second, the Fourth District s refusal to apply Noa also resulted in its affirmance of the trial court s erroneous application of its own definition of demolition and in the affirmance of the trial court s own conclusion that Menzer s work was not demolition. 6

In doing so, the Fourth District, like the trial court, failed to properly apply the governing standard of review on directed verdicts, which requires the court to view the evidence and inferences in a light favorable to the nonmoving party, and to affirm a directed verdict only when no view of the evidence could sustain a verdict for the nonmoving party. Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001). At trial, Petitioners/Plaintiffs established that the agreement between Menzer and the Millers was for demo (demolition) work, the permit was issued for demolition work, and Menzer used a demolition hammer. This evidence of demolition by Menzer was ignored in granting a directed verdict, and again ignored in affirming the directed verdict. In addition, in affirming the directed verdict, the Fourth District gave no weight to the stipulation of NFPA 241 into evidence at trial. While there was a passing reference, in a footnote, to the fact that Respondents/Defendants stipulated the NFPA 241 standard into evidence, Op. at 2 n. 2, whereby Respondents/ Defendants agreed that NFPA 241 was applicable to the facts in this case, the Fourth District still failed to view this evidence in the light most favorable to the nonmoving party in affirming the trial court s grant of a directed verdict for Respondents/Defendants. The Opinion Below Expressly and Directly Conflicts With Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla. 1964) and Doak v. Green, 677 So.2d 301 (Fla. 1 st DCA 1996). 7

As a general rule, it is a fact question for the jury whether the undertaking of an independent contractor is inherently dangerous so as to impose liability on the employer for injuries resulting from the independent contractor s negligence. Doak v. Green, 677 So.2d 301, 302 (Fla. 1 st DCA 1996). In fact, to reinforce this issue as being a jury question, the Florida Standard Jury Instructions promulgated by this Court specifically defines ultrahazardous work for the jury. Florida Standard Jury Inst. 401.14c; Price, 170 So.2d at 295-96 (indicating that whether or not work is inherently dangerous is a jury question, defining standards for that jury determination). To find that work is inherently dangerous, it is sufficient if there is recognizable and substantial danger inherent to the work even though a major hazard is not involved. Price at 295. Furthermore, a person who is having work done on his premises by an independent contractor, and has actual or constructive knowledge of latent or potential dangers on the premises, owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers. Id. at 296. The Fourth District identified other cases where courts have allowed a jury to consider whether an activity was inherently dangerous. Op. at 7. Yet nowhere does the Fourth District explain why it would be unreasonable for this jury to find that using a demolition hammer to excavate tile above a suspended and active gas line is ultrahazardous/inherently dangerous, except to suggest in a footnote that 8

because Menzer s conduct caused only catastrophic property damage but not serious bodily injury or death, it cannot reasonably be considered inherently dangerous. Op. at 7 n.4. Just like it did with Noa, the Fourth District drew a distinction which does not exist. Menzer did not just engage in the removal of floor tiles from a roof deck Op. at 7, he did so using a demolition hammer only inches from active gas piping just below him. Under those specific conditions, considered in the context of this case, the matter of whether this constituted ultrahazardous/inherently dangerous work was for the jury. The Fourth District s explanation only serves to underscore the extent to which its decision on this point is in conflict with the opinions of this Court and other district courts of appeal on substantially similar facts. In addition, the Fourth District also failed to view the evidence in favor of the nonmoving party with respect to evidence of Respondents/Defendants duty, i.e., knowledge (actual or constructive) of the presence of the propane system at their home. The Fourth District acknowledged that the active propane line was visible from the corners of the interior of the garage where the propane lines entered and exited the garage. Op. at 2. Despite the visibility of these propane lines, the Fourth District accepted, without question, Respondents/Defendants testimony that they did not know they had any propane lines in the home, and 9

didn t even know they had a propane tank. Op. at 9. In affirming the trial court s grant of a directed verdict on this issue, the Fourth District failed to view evidence that Respondents/Defendants paid propane gas bills for eight years prior to the explosion in a light favorable to the nonmoving party, and did not even mention this evidence. Given the standard on directed verdicts, this fact, coupled with the Fourth District s recognition that the propane gas lines were partially visible, should have been viewed in Petitioners/Plaintiffs favor, and should have created the inference that Respondents/Defendants had knowledge (or should have had knowledge) of the presence of active propane gas lines inches below the sundeck. The Fourth District s failure to properly view this evidence in favor of the nonmoving party again conflicts with Owens. CONCLUSION It is respectfully submitted that this Court should exercise discretionary jurisdiction to resolve these express and direct conflicts caused by the Fourth District s erroneous application of precedent, permitting briefing on the merits to commence. 10

CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy served by fax and U.S. Mail, postage prepaid, this 2 nd day of May, 2012, upon SCOTT J. FRANK, ESQ., Butler, Burnette, Pappas, LLP, One Harbour Place, Suite 500, 777 S. Harbour Island Blvd., Tampa, FL 33602; HOUSTON S. PARK, III, Esq., Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., 515 N. Flagler Drive, Suite 1600, West Palm Beach, FL 33401. CRAIG M. GREENE, ESQ. ROBERT I. BUCHSBAUM, ESQ. Trial and Appellate Counsel for Petitioners Gyongyosi, et al. 4000 Hollywood Boulevard Suite 485 South Hollywood, Florida 33021 By: /s/ Craig M. Greene CRAIG M. GREENE, ESQ. Florida Bar No.: 618421 cgreene@kramergreen.com ROBERT I. BUCHSBAUM, ESQ. Florida Bar No: 586048 rbuchsbaum@kramergreen.com MICHAEL J. FERRIN, ESQ. Trial and Appellate Counsel for Petitioners Lexington Insurance Company, La Coquille Villas, Inc. and Coregis Insurance Company, et al. 823 North Olive Avenue West Palm Beach, FL 33401 By: /s/ Michael J. Ferrin MICHAEL J. FERRIN, ESQ. Florida Bar No.: 285900 mjf@ferrinlaw.com 11

COZEN O CONNOR PAUL BARTOLACCI, ESQ. 1900 Market Street Philadelphia, PA 19103-3508 Trial and Appellate Counsel for Petitioners Lexington Insurance Company, La Coquille Villas, Inc. and Coregis Insurance Company, et al. By: /s/ Paul Bartolacci PAUL BARTOLACCI, ESQ. Pennsylvania Bar No.: 39378 pbartolacci@cozen.com 12

CERTIFICATE OF TYPEFACE COMPLIANCE Counsel for Petitioners JOSEPH GYONGYOSI, individually, EVA GYONGYOSI, individually, and ARTHUR L. CARTER, individually and collectively f/u/b/o FEDERAL INSURANCE COMPANY, etc., certify that this Brief on Jurisdiction is typed in 14 points Times New Roman in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. CRAIG M. GREENE, ESQ. ROBERT I. BUCHSBAUM, ESQ. Trial and Appellate Counsel for Petitioners Gyongyosi, et al. 4000 Hollywood Boulevard Suite 485 South Hollywood, Florida 33021 By: /s/ Craig M. Greene CRAIG M. GREENE, ESQ. Florida Bar No.: 618421 cgreene@kramergreen.com ROBERT I. BUCHSBAUM, ESQ. Florida Bar No: 586048 rbuchsbaum@kramergreen.com MICHAEL J. FERRIN, ESQ. Trial and Appellate Counsel for Petitioners Lexington Insurance Company, La Coquille Villas, Inc. and Coregis Insurance Company, et al. 823 North Olive Avenue West Palm Beach, FL 33401 By: /s/ Michael J. Ferrin MICHAEL J. FERRIN, ESQ. Florida Bar No.: 285900 mjf@ferrinlaw.com 13

COZEN O CONNOR PAUL BARTOLACCI, ESQ. 1900 Market Street Philadelphia, PA 19103-3508 Trial and Appellate Counsel for Petitioners Lexington Insurance Company, La Coquille Villas, Inc. and Coregis Insurance Company, et al. By: /s/ Paul Bartolacci PAUL BARTOLACCI, ESQ. Pennsylvania Bar No.: 39378 pbartolacci@cozen.com 14