Construction Accidents - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

Jeffrey P. Gale, P.A. — Tue, 18 Mar 2025 21:37:28 GMT

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

In considering a motion for summary judgment, the trial court views the facts in the light most favorable to the non-moving party, draws all reasonable inferences in favor of the non-moving party, and may not weigh evidence or make credibility determinations, which are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11^th Cir. 2019) and Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1252 (11^th Cir. 2013). Accord, Holl v. Talcott, supra; Piedra v. City of North Bay Village, supra; Villanueva v. Reynolds, Smith and Hills, Inc., 159 So. 3d 200 (Fla. 5^th DCA 2015); Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011), and Moore v. Morris, 475 So.2d 666 (Fla. 1985). Further, if more than one inference can be construed from the facts by a reasonable fact finder, and only one of those inferences introduces a genuine issue of material fact, then the trial court should not grant summary judgment. Birren, supra; citing, Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11^th Cir.1990).

The bottom line is that summary judgment should be denied if there are genuine issues of material fact. In our case, there were many.

It is easy during hearings to get thrown off track by arguments made by the other side. Think of the proverbial red cape being waived in front of the angered bull. In our hearing, the defense attorney spent a good ten minutes spouting facts he claimed supported his position and the granting of Defendant’s motion for summary judgment. Since we strongly disagreed with his interpretation of the facts and the application of those facts to the law, it would have been easy for us to mistakenly get caught up trying to clean up his mess rather than keep our eye on the ball.

By keeping our eye on the ball, we stayed above the fray. When defending a motion for summary judgment, this is the proper approach. The figurative ball on summary judgment is whether there are genuine issues of material fact. Period. Rather than challenge Defendant head-on, we simply showed the court a whole set of material facts a jury could accept to decide in our favor. It was apparent that the judge had read the Defendant’s Motion for Summary Judgment and Plaintiff’s written response, both of which contained the facts the parties mentioned in the hearing, because his ruling came without hesitation after the lawyers had stopped speaking. He understood from the pleadings that there were genuine issues of material fact.

We knew coming into the hearing that the record contained many genuine issues of material fact. We were hopeful that the judge would see this and follow the law. He did. By keeping our focus on the simple MSJ standard, instead of crawling into the mud to challenge the Defendant’s facts and arguments, we made it simple for the court and avoided ‘snatching defeat from the jaws of victory’ — the subject of a future blawg — by getting off-topic.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Republicans Push Sovereign Immunity for Private Companies

Jeffrey P. Gale, P.A. — Mon, 22 Apr 2024 18:12:22 GMT

This blog is the second on recent efforts by Republican legislators with the consequence of making Florida’s roads and highways more dangerous. (The first blog: Jeffrey P. Gale, P.A. // Republican Legislators Work to Make Florida’s Roadways Less Safe.)

Section 768.28(5)(a), Florida Statutes limits the recovery against the state and its agencies and subdivisions for tort lawsuits to $200,000 per individual claim and $300,000 total for all claims arising out of the same incident or occurrence.

No matter how catastrophic and life-altering the injuries may be or whether death results from the negligence of the sovereign, this is the hard cap. It does not matter what a judge or jury decides regarding the extent of the damages.

Section 768.28(5)(a) is the outgrowth of section 768.28(1), which is a limited waiver by the state of the doctrine commonly referred to as “Sovereign Immunity.” The doctrine is derived from English common law under which the King could not be sued on the theories that he could do no wrong, and that there could be no legal rights against the authority that makes the laws upon which the rights depend. See Miles McCann, Visiting Fellow, National Association of Attorneys General, State Sovereign Immunity, Nov. 11, 2017, https://www.naag.org/attorney-general-journal/state-sovereign-immunity/(last visited Jan. 23, 2024).

In Alden v. Maine, 527 U.S. 706, 728 (1999), the Supreme Court of the United States held that the doctrine was adopted by our country’s Founders in the Constitution itself rather than the Eleventh Amendment, solidifying its place in American jurisprudence. The doctrine is available to the federal government and every state.

Not every state chooses to hide behind sovereign immunity. California and New York, states with large populations and high costs of living and medical care like Florida, have no caps on suits against their state and local governments. Among the states using cap limits, Florida’s numbers are some of the lowest, making them a mere slap on the wrist to wrongdoers and failing to encourage safer practices and procedures.

The Florida Department of Transporation (FDOT) enters into contracts with private companies on many of its projects. The contracts require a degree of vetting to determine competence and allow for oversight by the sovereign. 768.25(5) extends the sovereign caps to these companies while performing under FDOT contracts, providing a measure of insulation not otherwise available to them on private projects. So, for example, the negligence of one of these companies on a private project resulting in catastrophic injuries could lead to a final judgment against the company for millions of dollars, whereas the same facts on a sovereign project would be limited to a $200,000 (per person) final judgment.

For two months every year, Florida’s senators and representatives meet in Tallahassee to create new laws. This year, bills were offered to extend the sovereign caps to companies that were not in privity of contract with the governmental entities. As such, they would not be vetted for competence by the sovereign or be subject to the sovereign’s scrutiny.

This is a recipe for an increase in dangerous conditions. Under no circumstances would the arrangement promote safety.

Thankfully, due to the hard work of the staff and members of the Florida Justice Association (FJA), the worst aspects of the proposed bills were eliminated or watered down.

All of the dangerous bills were proposed by Republicans.

Elections matter.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Ignorance of a Document’s Content is no Defense

Jeffrey P. Gale, P.A. — Wed, 07 Dec 2022 22:07:43 GMT

“Ignorance of the law is no defense” is a popular expression. It means that a person will not be excused from punishment for not knowing that particular conduct was against the law.

A similar rule holds true when it comes to written documents: Ignorance of a document’s content does not discharge the responsibility of a party to the document.

We are in suit against a homeowner for serious personal injuries sustained by our client from an accident that occurred on the homeowner’s property during a construction project. Among the legal theories claimed for holding the homeowner responsible is the breach of his duty created by undertaking the project as the owner-builder.

Typically, only licensed contractors can pull building permits and supervise construction projects in Florida. Florida Statute 489.103 lists exemptions to the rule. Subsection (7)(a)1 allows owners of one-family residences to undertake improvements on the property for their personal use without a licensed contractor. The permit in our case was secured under this exemption.

To obtain the permit under this exemption, the homeowner was required to execute a permit application and a separate “Owner-Builder Disclosure Statement” attesting to his status as the owner-builder on the project. The statute and owner-builder statement advise that the owner-builder assumes ultimate responsibility for the negligence of others working under him on the project.

The landowner hired an unlicensed contractor to supervise the project. The homeowner did not undertake any supervisory role. Our client, a young and inexperienced construction worker, was hurt when he was struck in the face by a metal pole while falling from the top of a ten-foot wall. We sued the unlicensed contractor for failing to properly supervise and provide adequate equipment. We sued the homeowner as being ultimately responsible under the statute and executed documents for the unlicensed contractor’s negligence. His defense is that he did not read the documents to know he was applying as the owner-builder with ultimate responsibility.

In 1956, the Supreme Court of Florida, in All Florida Surety Company v. Coker, 88 So.2d 508 (Fla. 1956), confronted a similar defense. Signators to a performance bond attempted to avoid responsibility by claiming “they had neglected to read [the agreements] when presented for their signature.” The court rejected the defense. It established the basic rule, summarized as follows in Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla. 1977):

“Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.” (Bold added for emphasis.)

Our legal system does not excuse people for failing to exercise reasonable prudence. Johnson v. Green, 54 So.2d 44, 46 (Fla. 1951).

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Vicarious Liability of Owners-Builders for Personal Injuries

Jeffrey P. Gale, P.A. — Tue, 26 Apr 2022 19:42:59 GMT

In the interest of public health, safety, and welfare, most construction projects require the services of licensed contractors. See Section 489.101, Florida Statutes. Section 489.103 outlines various exemptions to this public policy. One of the exemptions, contained in 489.101(7)(a), applies to “Owners of property when acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors.”

To impress upon owners the significance and consequences of operating as their own contractors without being licensed, the statute contains a 12-part section titled “Disclosure Statement.” The owner is required to sign this form for the local permitting agency.

In general, Florida law provides that “[A] property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work.” Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA 2011).

However, just as 489.103 applies an exception to the requirement of using a licensed contractor, it also eliminates the owner’s immunity from liability available under the general law when an independent contractor is employed. See Worthington Communities, Inc. v. Mejia, 28 So.3d 79 (Fla. 2nd DCA 2009), Griggs v. Ryder, 625 So.2d 950 (Fla. 1st DCA 1993), and Lewis v. Sims Crane Service, Inc., 498 So.2d 573 (Fla. 3rd DCA 1986), review dismissed, 503 So.2d 327 (Fla. 1987). Moreover, because an “Owner who is also acting as a general contractor ‘has the ultimate duty to maintain a construction site in a reasonably safe condition,'” Worthington at 83, this liability does not depend upon the owner’s active participation. Lewis at 574. Hence, this is a form of vicarious liability.

Here’s a good definition of vicarious liability:

n. sometimes called “imputed liability,” attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution. Thus, an employer of an employee who injures someone through negligence while in the scope of employment (doing work for the employer) is vicariously liable for damages to the injured person. In most states a participant in a crime (like a hold-up) may be vicariously liable for murder if another member of the group shoots and kills a shopkeeper or policeman.

While owners may save money by not employing a licensed contractor, they’d be well advised to maintain adequate insurance to provide coverage in the event of an accident. Since the owner operating as owner-contractor would be considered the employer of those working on the project, the most practical type of insurance coverage for the owner to maintain is workers’ compensation. This coverage should provide immunity to the owner from all other liability, including vicarious liability, to any third-party tortfeasor and to the employee, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of injury or death. See section 440.11(1), Florida Statutes.

If the owner/contractor fails to maintain workers’ compensation insurance, he or she could be liable for personal injury damages resulting from the negligence of a third party. The type of insurance that would protect the owner/contractor against this exposure is called Liability Insurance.

One would think that the “Disclosure Statement” would key owners into the pitfalls of acting as owner-contractor. While there may be good reasons for being the O-C, there is never a good reason for not being adequately insured against workplace accidents.

Owners should be aware of their exposure. Construction site accidents can be especially serious, oftentimes catastrophic and deadly. Being adequately insured protects them and the victims.

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Contact us at 305-758-4900 or by email to learn your legal rights.