final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No.
Klein of Conroy Simberg, Hollywood, and Jan D. Langer of the
Law Office of Hugh Behan, Hollywood, for appellant.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...