IN THE SUPREME COURT OF FLORIDA

CASE NO: SC14-2188

L.T. Case No: 5D13-1937

EVA SANTAMARIA, as personal

representative of the Estate of VICTOR

CORRALES LIZARRAGA, deceased, for the

benefit of the Estate and his survivors,

EVA SANTAMARIA, surviving spouse,

VICTOR GAEL LIZARRAGA-SANTAMARIA,

surviving minor child, and XIMENA MIA

LIZARRAGA-SANTAMARIA, surviving minor child,

Petitioner(s),

vs.

R.L. HAINES CONSTRUCTION, LLC,

Respondent. _____________________________________________/

PETITIONER’S BRIEF ON JURISDICTION

Kirwin Norris, P.A.

BRIAN P. KIRWIN

Fla. Bar No.: 867799

DOUGLAS W. ACKERMAN

Fla. Bar No.: 0115037

15 West Church Street, Ste. 301

Orlando, FL 32801

Ph: (407) 740-6600

Fax: (407) 740-6363

Counsel for Petitioners

Filing # 20545662 Electronically Filed 11/13/2014 03:51:22 PM

RECEIVED, 11/13/2014 15:53:41, John A. Tomasino, Clerk, Supreme Court

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Table of Contents

TABLE OF CITATIONS …………………………………………………........ii

STATEMENT OF THE CASE ………………………………………………...1

STATEMENT OF THE FACTS ……………………………………………….1

SUMMARY OF THE ARGUMENT …………………………………………..3

ARGUMENT ……………………………………………………………….3-10

I. THE MAJORITY OPINION EXPRESSLY AND DIRECTLY

CONFLICTS WITH THE DECISIONS IN TURNER V. PCR, INC.,

754 So.2d 683 (Fla. 2000), BAKERMAN V. THE BOMBAY

COMPANY, 961 So.2d 259, 264 (Fla. 2007); CONNELY V.

ARROW AIR, INC., 568 So.2d 448, 451 (Fla. 3d DCA 1990) and

CUNNINGHAM V. ANCHOR HOCKING CORP., 558 So.2d 93

(Fla. 1ST

DCA 1990)

II. THE MAJORITY’S CAUSATION ANALYSIS IS IN CONFLICT

WITH THIS COURT’S JURY INSTRUCTIONS FOR THIS EXACT

CAUSE OF ACTION

III. THE CASE IS SIGNIFICANT AND SHOULD BE HEARD

CONCLUSION ……………………………………………………………….10

CERTIFICATE OF SERVICE AND COMPLIANCE……………………..…10

ii

TABLE OF CITATIONS

Cases Page(s)

Reaves v. State,

485 So. 2d 829, 830 (Fla.1985) …………………………………………………...1

Turner v. PCR, Inc.,

754 So. 2d 683 (Fla. 2000) …………………………………………………..passim

Bakerman v. The Bombay Company,

961 So. 2d 259, 264 (Fla. 2007) ……………………………………………..passim

Connely v. Arrow Air, Inc.,

568 So. 2d 448, 451 (Fla. 3d DCA 1990) ………………………………..............3,4

Cunningham v. Anchor Hocking Corp.,

558 So. 2d 93 (Fla. 1st DCA 1990) ……………………………………………....3,4

Acensio v. State,

497 So. 2d 640, 641 (Fla. 1986) …………………...................................................3

Knowles v. State,

848 So. 2d 1055, 1056 (Fla. 2003) …………………………………………….......4

Robertson v. State,

829 So. 2d 901, 904 (Fla. 2002) …………………………………………………...4

Arab Termite and Pest Control of Fla. Inc. v. Jenkins,

409 So. 2d 1039, 1040 (Fla. 1982) …………………………………………….......4

State v. Stacey,

482 So. 2d 1350, 1350 (Fla.1986) ………………………………………………....4

Ford Motor Company v. Kikis,

401 So. 2d 1341, 1342 (Fla. 1981) ………………………………………………...4

In re Standard Jury Instruction in Civil Cases,

35 So. 3d 666, 772, 75 (Fla. 2010) …………………………………………….......6

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McConnell v. Union Carbide Corp.,

937 So. 2d 148, 153 (Fla. 4th DCA 2006) ……………………………….................6

R.J. Reynolds Tobacco Co. v. Jewett,

106 So. 3d 465, 469 n.4 (Fla. 1st DCA 2012) ………………………………….......6

Castellanos v. Next Door Company,

SC13-2082 ………………………………………………………………………....9

Westphal v. City of St. Petersburg,

SC13-1930 ………………………………………………………………………....9

State of Florida v. Florida Workers’ Advocates et al,

3D14-2062 …………………………………………………………………………9

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STATEMENT OF THE CASE

After a 9 day trial, the jury returned a verdict for Petitioner (the widow of

the decedent steel worker Victor Lizarraga) and their children in the amount of 2.4

million dollars. The trial judge denied motions made by Respondent (a general

contractor) for judgment notwithstanding the verdict. Respondent appealed, and

the Fifth District Court of Appeal reversed the jury verdicts. Notice of intent to

seek this Court’s discretionary jurisdiction was timely filed with the Fifth District.

STATEMENT OF THE FACTS1

Respondent contracted to build a 200,000 square foot expansion of an

existing warehouse. Respondent’s on site superintendent was Donnie Langdale.

Respondent subcontracted the steel work on the Project to Metal Bilt, Inc. At the

time he was killed, Victor Lizarraga was working as a foreman for Metal Bilt.

The steel columns were to be held to the concrete slab by anchor bolts which

were epoxied into the slab. According to the epoxy installation instructions, loads

were not to be applied until the cure time had passed. On January 13, 2010,

several anchor bolts were secured to concrete slabs with epoxy adhesive. The

epoxy installation instructions called for seventy-two hours of drying time. Donnie

1 All facts come from the majority and dissenting opinions. Petitioner is

aware of the case law holding that dissenting opinions should not be utilized.

Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) However, footnotes 6 and 7 of the

majority opinion acknowledge the accuracy of the facts stated by the dissent; it is

the legal significance of the facts, not their accuracy, which was rejected by the

majority.

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Langdale nonetheless instructed Metal Bilt employees to begin setting the steel

columns on January 15, 2010, after only forty-four hours of drying time.

The previous day, Thursday January 14, 2010, Donnie Langdale knew that

an anchor bolt that had been set at one of the columns had raised up. The bolt

could not have moved if the epoxy had been properly mixed and allowed to cure.

Those working at the site knew this; indeed, the workers who observed the bolt rise

up immediately stopped work and notified their supervisor.

Later on the 14th, Langdale met with the project engineer but never

informed the project engineer about the bolt rising up. At trial, Langdale and the

project engineer testified that notice of the movement of the bolt would be a “red

flag” indicating installation failure, which would necessitate stopping work and

performing additional testing before attempting to erect the steel columns.

The next morning, Friday, January 15, 2010, despite knowing about the bolt

rising, and knowing that the cure time on the column that ultimately fell and killed

Lizarraga had not passed, Langdale told Metal Bilt employees that it was safe to

set the steel columns. Worse yet, Langdale falsely represented to Metal Bilt’s site

superintendent and project manager that both the project engineer and owner’s

representative had indicated they were “good to go” for erecting the columns.

Evidence in the record demonstrated that those in the industry, including

Langdale, would know that a steel column weighing over 2,000 pounds, if not

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properly secured, would fall. Nonetheless, despite this knowledge, Langdale

misrepresented the danger and claimed that the project engineer had given the all

clear to raise the columns.

SUMMARY OF THE ARGUMENT

The majority Opinion gives no evidentiary weight to the substantial

evidence of employer concealment as it relates to the issue of likelihood of injury

in direct conflict with existing precedent.

The majority Opinion adds causation elements which are in direct conflict

with the jury instructions propounded by this Court for this exact cause of action.

ARGUMENT

I. THE MAJORITY OPINION EXPRESSLY AND

DIRECTLY CONFLICTS WITH THE DECISIONS IN

TURNER V. PCR, INC., 754 So.2d 683 (Fla. 2000);

BAKERMAN v. THE BOMBAY COMPANY, 961 So.2d

259, 264 (Fla. 2007); CONNELY v. ARROW AIR, INC.,

568 So.2d 448, 451 (Fla. 3d DCA 1990); and

CUNNINGHAM v. ANCHOR HOCKING CORP., 558

So.2d 93 (Fla. 1st DCA 1990)

Misapplication of precedent is an established basis for this Court’s conflict

jurisdiction. Bakerman v. The Bombay Company, Inc., 961 So. 2d 259 (Fla. 2007)

(accepting conflict jurisdiction where Third District misapplied Turner v. PCR,

Inc., 754 So. 2d 683 (Fla. 2000) to add requirement of employer concealment to

“substantial certainty” test); Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986);

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Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003); Robertson v. State, 829 So.

2d 901, 904 (Fla. 2002); Arab Termite and Pest Control of Fla. Inc. v. Jenkins, 409

So. 2d 1039, 1040 (Fla. 1982); State v. Stacey, 482 So. 2d 1350, 1350 (Fla. 1986)

That the Opinion does not itself identify any conflict is not necessary:

The . . . district court below did not identify a direct conflict of its

decision with any other Florida appellate decisions. The court’s

opinion, discusses, however, the basis upon which it reversed the trial

court’s entry of a directed verdict of Ford. This discussion, of the

legal principles which the court applied supplies a sufficient basis

for a petition for conflict review. It is not necessary that a district

court explicitly identify conflicting district court or supreme court

decisions in its opinion in order to create an “express” conflict under

section 3(b)(3).

Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981)

Here, the Opinion misapplies, indeed fails to apply, a holding of Turner v.

PCR, Inc., 754 So. 2d 683, 690 (Fla. 2000) that remains valid and controlling.

Turner confirmed that

where an employer withholds from an employee knowledge of a

defect or hazard which poses a grave threat of injury . . . the

employer will be considered to have acted in a belief that the

harm is substantially certain to occur. Turner v. PCR, Inc., 754 So.

2d 683, 690 (Fla. 2000) (quoting with approval Connely v. Arrow Air,

Inc., 568 So. 2d 448, 451 (Fla. 3d DCA 1990).

The Court in Turner further noted with agreement that Connely and

Cunningham v. Anchor Hocking Corp., 558 So. 2d 93 (Fla. 1st DCA 1990) “share a

common thread of evidence that the employer tried to cover up the danger,

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affording the employees no means to make a reasonable decision as to their

actions.” Id. at 691.

Bakerman v. The Bombay Company, 961 So. 2d 259, 264 (Fla. 2007)

expressly reaffirmed that “[employer] concealment can be an important . . . factor

in the larger analysis of whether the circumstances demonstrate a substantial

certainty of harm.”

The Legislature’s move from “substantial certainty” to “virtual certainty,”

did not overrule Turner’s and Bakerman’s statement of the evidentiary

significance of an employer’s concealment as it relates to the issue of likelihood of

injury or death.

However, the Opinion, while citing both Turner and Bakerman, and

acknowledging Donnie Langdale’s lies and concealment, conflicts with Turner and

Bakerman by giving no evidentiary weight to the lies and concealments in the

Opinion’s discussion of the likelihood of injury or death. The Court in Bakerman

accepted jurisdiction because the Third District held that employer concealment

was a required element. The Court in this case should accept jurisdiction because

the Opinion fails to give any evidentiary weight to the substantial employer

concealment. The Opinion conflicts with this Court’s holdings in Turner and

Bakerman that employer concealment is highly relevant to the likelihood of injury

or death.

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II. THE MAJORITY’S CAUSATION ANALYSIS IS IN

CONFLICT WITH THIS COURT’S JURY

INSTRUCTIONS FOR THIS EXACT CAUSE OF

ACTION

Adding elements to a cause of action is a suitable basis for this Court’s

conflict jurisdiction. Bakerman, supra. (holding that Third District’s adding of

employer concealment as a required element of the intentional tort exception to

workers’ compensation immunity created conflict jurisdiction).

Here, the Opinion adds multiple causation elements to the cause of action

which are not in the statute and conflict with this Court’s jury instructions for this

exact cause of action.

In 2010, more than six years after the Legislature enacted the “virtually

certain” standard for intentional harm by employers, this Court approved jury

instructions specifically for use in this exact cause of action. In re Standard Jury

Instruction in Civil Cases, 35 So. 3d 666, 772, 75 (Fla. 2010). Jury instructions are

not binding but are presumed to be accurate until a litigant makes a showing to the

contrary. McConnell v. Union Carbide Corp., 937 So. 2d 148, 153 (Fla. 4th

DCA

2006). Moreover, the case law from which they derive is binding, and the

instructions “are neutral and reliable because they represent the product of

laborious and nuanced discussions among highly experienced and knowledgeable

members of the bench and bar.” R.J. Reynolds Tobacco Co. v. Jewett, 106 So. 3d

7

465, 469 n.4 (Fla. 1st DCA 2012).

The Court approved the following instructions regarding causation:

Instruction 414.4C

In order to be regarded as a legal cause of injury or damage the

conduct need not be the only cause. A party’s conduct may be a

legal cause of loss, injury or damage even though it operates in

combination with some other cause if the conduct contributes

substantially to producing such loss, injury or damage.

A party’s conduct may also be a legal cause of injury or damage even

though it operates in combination with the act of another, some

natural cause or some other cause occurring after the party’s conduct

occurs if such other cause was itself reasonably foreseeable and the

party’s conduct contributes substantially to producing such injury or

damage or the resulting injury or damage was a reasonably

foreseeable consequence of the party’s conduct and the party’s

conduct contributes substantially to producing it.

Instruction 414.5 Issues on Claim

After quoting in part section 440.11, Florida Statutes:

“and, if so, whether that conduct was a legal cause of [loss] [injury] or

[damage] to (claimant).”

“Foreseeability” is by definition “[t]he ability to see or know in advance.”

Black’s Law Dictionary 584 (5th

ed. 1979).

Yet, the Opinion forsakes the prescribed standard of foreseeability by

declaring that the statutory standard “requires events to be viewed retrospectively

8

in order to determine whether the injury actually sustained was virtually certain to

have occurred as a result of the employer’s conduct.”

In addition to forsaking the traditional tort concept of “foreseeability” with a

“retrospective” analysis, the Opinion adds requirements fundamentally inconsistent

with the approved jury instructions. Indeed, the Opinion requires proof “that the

column would fall at a time, in a direction, and in a manner that was virtually

certain to injure or kill an employee,” and further requires that the foregoing be

causally linked to “the injury actually sustained.”

Finally, in direct conflict with the jury instructions, the Opinion discounts

Metal-Bilt’s project manager’s testimony that injury under these circumstances

was “more than certain,” because it “does not refer to causation by the shortened

curing time rather than an unrelated failure of the epoxy adhesive, the alternative

cause for which there was evidentiary support.” Opinion, n.6.

This line of reasoning results in causation requirements which are

inconsistent with the jury instructions propounded by this Court for this exact

cause of action. The statute requires proof of only injury or death generally, and

the Opinion’s conclusion that Metal-Bilt’s project manager had to explain away an

“alternative cause” is in direct conflict with the jury instructions. Requiring the

employee to prove that an employer’s conduct was virtually certain to cause a

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particular chain of events subsequently linked to particular injuries or death cannot

be reconciled with this Court’s jury instructions for this exact cause of action.

The facts of this case illustrate the point. Numerous Metal-Bilt employees

could have been injured in a variety of ways or killed. To require each of these

putative plaintiffs to prove Donnie Langdale’s conduct was going to cause

columns, beams, and/or purlins to fall at a particular time, direction, and manner

and then link the foregoing to “the actual injuries sustained” cannot be reconciled

with this Court’s jury instructions on causation for this exact cause of action.

III. THE CASE IS SIGNIFICANT AND SHOULD BE HEARD

There are two cases pending in this Court on workers’ compensation

issues—both tending to suggest that employees are not being treated fairly.

Castellanos v. Next Door Company, SC13-2082; Westphal v. City of St.

Petersburg, SC13-1930. Additionally, the 11th

Circuit Court in Miami-Dade

County recently declared section 440.11, Florida Statutes, the exclusive remedy

provision of the Workers’ Compensation statute, unconstitutional because

employees are not fairly treated under the statute. That case is pending before the

Third District. State of Florida v. Florida Workers’ Advocates et al, 3D14-2062.

In the Fifth District’s latest interpretation in this case, the majority itself

describes the cause of action as “hypothetical,” while the dissent describes it as

“illusory or unattainable.” Statutes should not be interpreted to render causes of

10

action “hypothetical,” “illusory or unattainable.” The facts of this case are

egregious and the Court should hear the case on the merits.

CONCLUSION

The Court has discretionary jurisdiction to review the opinion of the Fifth

District Court of Appeal, and the Court should exercise that jurisdiction to consider

the merits of Petitioner’s case.

CERTIFICATE OF SERVICE AND COMPLIANCE

Pursuant to Rule 9.210 (a), Fla. R. App. P., undersigned counsel hereby

certifies that on November 13, 2014, this Brief is submitted in Times New Roman

14-point font. Counsel further certifies that a copy of the Brief was electronically

filed with The Florida Supreme Court and served via e-mail on the following: Scott

A. Cole Esq., Rhonda L. Beesing, Esq., scott.cole@csklegal.com,

rhonda.beesing@csklegal.com, charo.fagundez@csklegal.com,

mary.rigau@csklegal.com, Counsel for Respondent, R.L. Haines Construction,

Inc.

Kirwin Norris, P.A.

/s/ Brian P. Kirwin

BRIAN P. KIRWIN

Fla. Bar No.: 867799

DOUGLAS W. ACKERMAN

Fla. Bar No.: 0115037

15 West Church Street, Ste. 301

Orlando, FL 32801

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Ph: (407) 740-6600

Fax: (407) 740-6363

Counsel for Petitioners

U:\Public\DOCS\5039-01\Appeal\Drafts\BriefonJurisdiction.doc.docx