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Krueger v. Quest Diagnostics, Inc.

Florida Court of Appeals, Second District

September 13, 2019

HAROLD KRUEGER, Appellant,
v.
QUEST DIAGNOSTICS, INC., MPN, LLC, a Florida limited liability company and BRUCE STRUMPF, INC., a Florida corporation, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Elizabeth Rice, Judge.

          Chris W. Altenbernd of Banker Lopez Gassler, P.A., Tampa, for Appellant.

          Dennis A. Lopez of Dennis A. Lopez, P.A., Tampa, for Appellant.

          Jonathan N. Zaifert of Caglianone & Miller, P.A., Tampa, for Appellee, MPN, LLC.

          Gregory S. Jones and Carla M. Sabbagh of Rywant, Alvarez, Jones, Russo, and Guyton, P.A., Tampa, for Appellee, Bruce Strumpf, Inc.

          LUCAS, JUDGE.

         In this premises liability case, Harold Krueger appeals a final judgment entered against him and in favor of the defendants below, MPN, LLC (MPN), and Bruce Strumpf, Inc. (Strumpf), following the circuit court's entry of a directed verdict. As we will explain, the circuit court's ruling was in error.

         On September 10, 2016, Mr. Krueger was injured when he fell near a curb in a strip mall parking lot. The area where he fell was in front of Quest Diagnostics, Inc. (Quest), the medical facility he had been visiting that day. Mr. Kreuger, who is elderly and disabled, had parked in the handicapped parking space closest to the Quest office. He was apparently trying to return to his vehicle when he fell.

         In April 2017, Mr. Krueger filed a complaint against Quest, [1] MPN (the owner of the strip mall), and Strumpf (the entity that managed the strip mall premises). His complaint alleges a fairly straight-forward premises liability theory of negligence. Specifically, Mr. Kreuger claimed that Strumpf and MPN negligently maintained the strip mall parking lot by not providing a suitable curb "cut" that would have allowed handicapped patrons a sufficiently direct access to and from the handicapped spaces that were in the vicinity of Quest. He alleged that the presence of the curb between the sidewalk outside of Quest and the parking lot constituted an impediment to his access to the Quest office and that the failure to provide a cut in the curb violated MPN and Strumpf's duty of care to handicapped patrons such as himself.

          The case proceeded to trial on May 7, 2018. Mr. Krueger's case revolved, in large part, around establishing that the Florida Accessibility Code for Building Construction[2] required a minimal distance between a handicapped parking space and an accessible entrance to Quest via the shortest accessible route. The parking lot, according to Mr. Krueger's view of the Florida Accessibility Code, did not provide such a route for disabled patrons such as Mr. Krueger, partly because of the impediment of a step (and the absence of a curb cut) in the sidewalk along this particular area of the parking lot and partly because of the disbursement of the handicapped spaces throughout the parking lot. Mr. Krueger had retained an architect, Daniel Robison, who would have testified to that effect. In Mr. Robison's opinion, this area of the strip mall parking lot did not comply with the Florida Accessibility Code.

         The circuit court, however, was troubled by the way Mr. Krueger sought to invoke the Florida Accessibility Code in this case. The court had carefully studied numerous provisions within the Florida Accessibility Code and reviewed reported Americans with Disabilities Act (ADA) decisions, and it came to the conclusion that there was a difference between building code provisions that addressed safety and those that addressed accessibility. According to the court, even though the Florida Accessibility Code is part of the Florida Building Code, "the Florida Accessibility Code, the particular one with which your witness's opinion is based is not a safety code and so if it's not a safety code, then I'm relying on the case law with respect to the ADA that says the ADA is merely an accessibility code."[3] From that conclusion, the court excluded the entirety of Mr. Robison's testimony, as well as testimony from other witnesses about a curb cut that could have been placed in front of the Quest office, a curb cut near another tenant of the strip mall, and work that had been performed on the parking lot in 2012 and 2016.

         With Mr. Krueger's claim effectively eviscerated, [4] the circuit court granted the defendants' motion for directed verdict at the conclusion of his case. Mr. Krueger filed a motion for new trial, which the circuit court denied. The circuit court then entered the final judgment now before us on appeal.

         We review the entry of a directed verdict de novo. See Christensen v. Bowen, 140 So.3d 498, 501 (Fla. 2014); Omega Ins. Co. v. Wallace, 224 So.3d 864, 867 (Fla. 2d DCA 2017). Like a trial court when it decides a motion for directed verdict, on review we must consider "the evidence and all inferences of fact in the light most favorable to the nonmoving party." Christensen, 140 So.3d at 501. "Florida law cautions against a motion for directed verdict in negligence cases since the evidence to support the elements of negligence are frequently subject to more than one interpretation." Nunez v. Lee ...


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