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Davie Plaza, LLC v. Iordanoglu

Florida Court of Appeals, Fourth District

December 13, 2017

DAVIE PLAZA, LLC, Appellant,
EMMANUEL IORDANOGLU, as personal representative of the Estate of MIKHAEL MAROUDIS, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. 11-004370CACE13.

          Hinda Klein of Conroy Simberg, Hollywood, and Jan D. Langer of the Law Office of Hugh Behan, Hollywood, for appellant.

          Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and John F. Billera of Billera Law, PLLC, Boca Raton, for appellee.

          WARNER, J.

         Davie Plaza, LLC appeals a final judgment in a premises liability case involving the plaintiff's fall from a ladder. The plaintiff's estate claimed that the fall was due to defects in the premises. Davie Plaza contends that the court erred in denying its motion for directed verdict, when the evidence presented by the plaintiff failed to establish the cause of the fall or even precisely where the fall occurred. We agree that the circumstantial evidence was insufficient and the court erred in denying the motion. We reverse for a judgment in favor of Davie Plaza.

         Davie Plaza owned a shopping center which included space leased by 84 Diner, its tenant. In 2007, Mikhael Maroudis, the plaintiff, worked for 84 Diner as a handyman. One night in June of that year, the supervisor of the diner asked Maroudis to go up on the roof to clear water, as the roof was leaking into the restaurant. The diner's roof had two levels. In order to get to the area which was leaking, Maroudis had to ascend to the first level of the roof over part of the kitchen, haul up the ladder, and then ascend to the upper part of the roof where the water was collecting. After clearing the water, Maroudis descended from the upper roof and then repositioned the ladder to descend from the lower roof to the ground. As he descended he fell backwards to the ground, causing serious injuries.

         In 2011, Maroudis filed suit against Davie Plaza alleging his status as a business invitee on the property. The suit alleged that the property had a latent defect in the premises, namely "uneven, cracked and defective exterior walkway/parking lot located in the area where [Maroudis] placed his ladder." Maroudis alleged the uneven area "collapsed underneath the foot of [Maroudis's] ladder, causing him to fall." During the course of the proceedings, Maroudis testified regarding the incident at several depositions, and he also gave a recorded statement. The statement and depositions were used at trial, because Maroudis died of unrelated causes in 2013, and his estate was substituted as the party plaintiff.

         At trial, through the depositions, Maroudis testified that when his supervisor directed him to go up on the roof to clear the water, it was dark and rain had started to fall. He went out the back of the restaurant to see how he could get up to the higher roof. He then used the diner's twelve-foot A-frame ladder. Instead of opening it as he normally would, he leaned the ladder against the side of the building, and he ascended the ladder to the first roof. He then pulled up the ladder and leaned it against the wall leading to the second roof. He ascended both levels without incident. After completing his task, he descended the ladder to the first roof. From the first roof, he then repositioned the ladder on the ground, again leaning it against the building. As he descended it, he fell backwards landing on the cement, causing injuries.

         Maroudis testified that he placed the ladder on a concrete surface to the right side of the door as he exited, which would be the left side of the door as one faced it from the exterior. This corresponds to the testimony of his friend at trial, who went by the diner with him sometime after the fall. At that time Maroudis identified the area where he fell, which the witness pointed out was to the left of the door when viewed from the exterior. Pictures entered as exhibits also confirm that a concrete sidewalk is to the left of the door as viewed from the exterior. Maroudis did not look at the ground as he placed the ladder, but he made sure that it was secure by moving it left to right. Although he usually had spotters when he was on a ladder, he did not use one that night. He did not open the A-frame ladder and did not observe any defects in the ladder.

         When he was placing the ladder on the ground to descend from the roof, he again leaned it against the building and checked the security of the ladder with his hands. He went down two steps when he lost his balance and fell backwards and to the left side. He testified that he did not know what made him fall, "maybe the floor." As to the ground, he noted that the area was not defective or broken but was not completely smooth and flat. Later in the same deposition, he looked at a picture and identified an area several feet from the door as covered in asphalt. He then testified that both feet of the ladder were on the asphalt. Then he stated that he placed the ladder on the dividing line between the asphalt and concrete. He said he placed his ladder within one foot of the door both going up and coming down. And after looking at the picture, he indicated that the area in the picture looked as though it had changed since the date of his fall.

         At his deposition, the picture which he was viewing was not identified. Other pictures admitted into evidence showed a concrete sidewalk on the left side of the door and a sloping concrete pad which ends at a grate several feet from the door. The property manager for Davie testified in her deposition that asphalt covered the area where the grates were now pictured.

         An expert on code violations testified for the Estate. He was asked to assume that the area in the vicinity of the accident had not changed since the time of Maroudis's fall. He testified that he saw many uneven surfaces in the area which were code violations. However, he never testified as to the cause of the fall. During cross-examination, he admitted that he did not know where Maroudis placed the ladder, as Maroudis had testified to different places in his deposition, including on concrete, on asphalt, and on the dividing line between concrete and asphalt. The expert noted that there was no asphalt upon his inspection. While he did not think that Maroudis's use of the A-frame ladder without opening it was necessarily improper, he also did not know the angle at which Maroudis would have placed the ladder. In his direct testimony he explained that the angle of the ladder would affect its stability. Further, he never saw the ladder, so he could not rule out a defect in the ladder. In sum, the expert did not give any opinion as to the cause of the fall. A defense expert testified that the use of the A-frame ladder was improper. He also determined that the area to the left of the door where Maroudis testified he placed his ladder was not an area of defective concrete, but if the feet were placed near the crack between the grate and the concrete, the ladder would have been at an improper angle.

         Davie Plaza moved for directed verdict at the close of the Estate's case and at the close of all the evidence, contending that the Estate's case consisted of stacking inference upon inference. Because the Estate could not show precisely where Maroudis placed his ladder when descending from the roof, it could not show that he placed it in an area of the ground that was dangerous or uneven. Further, an equally reasonable inference was that the angle at which he leaned the unopened ladder against the building caused it to be unsteady. The court denied the motions. The jury returned a verdict in favor of the Estate, awarding an ...

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