Third District Court of Appeal State of Florida
Opinion filed July 12, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-824 Lower Tribunal No. 20-10025 ________________
Ifrain Benitez, Appellant,
vs.
Lawson Industries, Inc., Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.
Robert L. Gardana, P.A., and Robert L. Gardana; and Philip D. Parrish, P.A., and Philip D. Parrish, for appellant.
Moyer Law Group, and Kellie A. Caggiano, Tyler R. Bennion and Randell H. Rowe (St. Petersburg), for appellee.
Before FERNANDEZ, HENDON and LOBREE, JJ. HENDON, J.
In this personal injury action, appellant Ifrain Benitez appeals entry of
final summary judgment in favor of the defendant below, appellee Lawson
Industries, Inc. (“Lawson”). Benitez sustained injuries when he attempted
to unload a shipment of heavy impact windows and doors that were
delivered by Lawson’s employee and placed on Benitez’s employer’s
forklift. The impact doors toppled off the forklift and onto Benitez when he
removed the windows that were leaning against the impact doors. We
affirm.
Lawson is a Miami-Dade impact window and door manufacturer.
PMYY Leon Corporation, Inc. (“PMYY”) is Benitez’s employer and a local
retailer in Hialeah that ordered impact windows and doors from Lawson.
The impact doors and windows had been offloaded onto PMYY’s forklift the
previous day by Lawson’s delivery truck driver, a Lawson employee, Mr.
Radu (“Radu”). On the delivery day, PMYY’s principal, Yohander Leon
(“Leon”), assisted Radu in moving the shipment from the delivery truck onto
a PMYY forklift outfitted with a special pallet rack to accommodate the
windows and doors. Radu stated in a deposition that, after transferring the
shipment from the delivery truck to the PMYY forklift rack, he did not recall
strapping the doors onto the forklift rack because that was not his job. He
2 did not recall whether or not the person on the forklift (Leon) strapped the
load down, but testified that this was PMYY’s usual practice. After making
the delivery, the driver left the PMYY premises. Leon stated in his
deposition that it was his usual practice to securely strap the doors and
windows to the forklift rack, and that he strapped the shipment to the pallet
rack on the forklift. Once the shipment had been transferred to the forklift
and the driver had left, Leon stated that he drove the forklift into the PMYY
warehouse for storage overnight.
Benitez testified at his deposition that on the morning following the
shipment delivery date, he entered the warehouse and began to unload the
shipment from the forklift by himself, and at that time observed that there
were no straps in place. Later, Benitez testified that he did not realize no
safety strapping was in place until after the doors fell on him. Benitez
stated that once he had unloaded the lighter windows from the front of the
heavier impact doors, the doors, which were stacked upright rather than on
their sides, fell forward onto him causing him injuries. Benitez filed suit
against Lawson asserting one count of negligence, asserting that Lawson
improperly loaded the shipment onto PMYY’s forklift, which ultimately led to
Benitez’s injuries.
3 Following a hearing, the trial court granted Lawson’s motion for
summary judgment. The evidence before the court at the hearing on the
motion for summary judgment indicated that PMYY’s owner, Leon, stated
several times that he strapped the shipment to the forklift once the Lawson
employee had offloaded the shipment. The record provides that Benitez
stated that, although he observed that the shipment was not strapped to
the forklift, he proceeded to offload the shipment by himself in
contravention of PMYY’s policy that two persons are required for offloading
a heavy shipment. PMYY’s counsel admitted at the summary judgment
hearing that the only testimony that the shipment was strapped to the
forklift came from Leon, who accepted the shipment from Lawson’s
employee. Lawson’s former shipping manager and corporate
representative, Jose Vidal, stated that it is standard operating procedure
that a shipment being moved is strapped down by the customer or by the
party doing the transporting. In this case, Vidal indicated that Lawson
secures the shipment for delivery, and once the shipment is delivered, the
shipment becomes the customer’s responsibility.
The trial court granted Lawson’s motion for summary judgment,
determining as a matter of law that Lawson had no duty to Benitez, and
that PMYY was responsible for strapping the shipment to the forklift once
4 the shipment had been offloaded. Further, the court noted that Benitez
undertook to unload the forklift by himself despite observing the lack of
safety straps. Benitez appealed.
Our standard of review of a final summary judgment is de novo.
Najeera v. Tropical Supermarket Corp., 305 So. 3d 639 (Fla. 3d DCA 2020)
(citing Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259
(Fla. 2002)).
Analysis
Florida Rule of Civil Procedure 1.510 1 provides that the test for the
existence of a genuine factual dispute is whether “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party,” and
“whether the evidence presents a sufficient disagreement to require
submission to a jury.” See In re Amends. to Fla. R. Civ. P. 1.510, 317 So.
3d 72, 74 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986)). Under this standard, “[t]he substantive evidentiary
burden of proof that the respective parties must meet at trial is the only
1 The Florida Supreme Court recently amended Rule 1.510 and adopted the federal summary judgment standard laid out in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). The Rule's effective date was May 1, 2021, and governs the adjudication of any motions decided on or after this date. See In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77 (Fla. 2021). As the summary judgment at issue in this this case was decided in May 2022, it is properly before the Court under the new summary judgment standard.
5 touchstone that accurately measures whether a genuine issue of material
fact exists to be tried.” Id. (citations omitted).
We conclude that the absence of a material issue of fact is
established by this record. There is no evidence in the record that Lawson’s
driver strapped or failed to strap the shipment to PMYY’s forklift once he
transferred the shipment from the delivery truck. Having made many
deliveries to PMYY, Radu testified it was not his responsibility to do so
once the shipment was offloaded to the customer. Leon, on the other
hand, affirmatively testified that he strapped the shipment to his forklift after
the driver transferred the shipment and left the premises. We agree with
the trial court that, as to Lawson, the “plaintiff cannot show a genuine
dispute as required by Fla. R. Civ. P. 1.510.”
Proof that there is no genuine dispute of a material issue of fact is not
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Third District Court of Appeal State of Florida
Opinion filed July 12, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-824 Lower Tribunal No. 20-10025 ________________
Ifrain Benitez, Appellant,
vs.
Lawson Industries, Inc., Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.
Robert L. Gardana, P.A., and Robert L. Gardana; and Philip D. Parrish, P.A., and Philip D. Parrish, for appellant.
Moyer Law Group, and Kellie A. Caggiano, Tyler R. Bennion and Randell H. Rowe (St. Petersburg), for appellee.
Before FERNANDEZ, HENDON and LOBREE, JJ. HENDON, J.
In this personal injury action, appellant Ifrain Benitez appeals entry of
final summary judgment in favor of the defendant below, appellee Lawson
Industries, Inc. (“Lawson”). Benitez sustained injuries when he attempted
to unload a shipment of heavy impact windows and doors that were
delivered by Lawson’s employee and placed on Benitez’s employer’s
forklift. The impact doors toppled off the forklift and onto Benitez when he
removed the windows that were leaning against the impact doors. We
affirm.
Lawson is a Miami-Dade impact window and door manufacturer.
PMYY Leon Corporation, Inc. (“PMYY”) is Benitez’s employer and a local
retailer in Hialeah that ordered impact windows and doors from Lawson.
The impact doors and windows had been offloaded onto PMYY’s forklift the
previous day by Lawson’s delivery truck driver, a Lawson employee, Mr.
Radu (“Radu”). On the delivery day, PMYY’s principal, Yohander Leon
(“Leon”), assisted Radu in moving the shipment from the delivery truck onto
a PMYY forklift outfitted with a special pallet rack to accommodate the
windows and doors. Radu stated in a deposition that, after transferring the
shipment from the delivery truck to the PMYY forklift rack, he did not recall
strapping the doors onto the forklift rack because that was not his job. He
2 did not recall whether or not the person on the forklift (Leon) strapped the
load down, but testified that this was PMYY’s usual practice. After making
the delivery, the driver left the PMYY premises. Leon stated in his
deposition that it was his usual practice to securely strap the doors and
windows to the forklift rack, and that he strapped the shipment to the pallet
rack on the forklift. Once the shipment had been transferred to the forklift
and the driver had left, Leon stated that he drove the forklift into the PMYY
warehouse for storage overnight.
Benitez testified at his deposition that on the morning following the
shipment delivery date, he entered the warehouse and began to unload the
shipment from the forklift by himself, and at that time observed that there
were no straps in place. Later, Benitez testified that he did not realize no
safety strapping was in place until after the doors fell on him. Benitez
stated that once he had unloaded the lighter windows from the front of the
heavier impact doors, the doors, which were stacked upright rather than on
their sides, fell forward onto him causing him injuries. Benitez filed suit
against Lawson asserting one count of negligence, asserting that Lawson
improperly loaded the shipment onto PMYY’s forklift, which ultimately led to
Benitez’s injuries.
3 Following a hearing, the trial court granted Lawson’s motion for
summary judgment. The evidence before the court at the hearing on the
motion for summary judgment indicated that PMYY’s owner, Leon, stated
several times that he strapped the shipment to the forklift once the Lawson
employee had offloaded the shipment. The record provides that Benitez
stated that, although he observed that the shipment was not strapped to
the forklift, he proceeded to offload the shipment by himself in
contravention of PMYY’s policy that two persons are required for offloading
a heavy shipment. PMYY’s counsel admitted at the summary judgment
hearing that the only testimony that the shipment was strapped to the
forklift came from Leon, who accepted the shipment from Lawson’s
employee. Lawson’s former shipping manager and corporate
representative, Jose Vidal, stated that it is standard operating procedure
that a shipment being moved is strapped down by the customer or by the
party doing the transporting. In this case, Vidal indicated that Lawson
secures the shipment for delivery, and once the shipment is delivered, the
shipment becomes the customer’s responsibility.
The trial court granted Lawson’s motion for summary judgment,
determining as a matter of law that Lawson had no duty to Benitez, and
that PMYY was responsible for strapping the shipment to the forklift once
4 the shipment had been offloaded. Further, the court noted that Benitez
undertook to unload the forklift by himself despite observing the lack of
safety straps. Benitez appealed.
Our standard of review of a final summary judgment is de novo.
Najeera v. Tropical Supermarket Corp., 305 So. 3d 639 (Fla. 3d DCA 2020)
(citing Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259
(Fla. 2002)).
Analysis
Florida Rule of Civil Procedure 1.510 1 provides that the test for the
existence of a genuine factual dispute is whether “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party,” and
“whether the evidence presents a sufficient disagreement to require
submission to a jury.” See In re Amends. to Fla. R. Civ. P. 1.510, 317 So.
3d 72, 74 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986)). Under this standard, “[t]he substantive evidentiary
burden of proof that the respective parties must meet at trial is the only
1 The Florida Supreme Court recently amended Rule 1.510 and adopted the federal summary judgment standard laid out in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). The Rule's effective date was May 1, 2021, and governs the adjudication of any motions decided on or after this date. See In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77 (Fla. 2021). As the summary judgment at issue in this this case was decided in May 2022, it is properly before the Court under the new summary judgment standard.
5 touchstone that accurately measures whether a genuine issue of material
fact exists to be tried.” Id. (citations omitted).
We conclude that the absence of a material issue of fact is
established by this record. There is no evidence in the record that Lawson’s
driver strapped or failed to strap the shipment to PMYY’s forklift once he
transferred the shipment from the delivery truck. Having made many
deliveries to PMYY, Radu testified it was not his responsibility to do so
once the shipment was offloaded to the customer. Leon, on the other
hand, affirmatively testified that he strapped the shipment to his forklift after
the driver transferred the shipment and left the premises. We agree with
the trial court that, as to Lawson, the “plaintiff cannot show a genuine
dispute as required by Fla. R. Civ. P. 1.510.”
Proof that there is no genuine dispute of a material issue of fact is not
the only prerequisite to obtaining an order granting a motion for summary
judgment. The court must also conclude that the moving party is entitled to
a judgment as a matter of law. Fla. R. Civ. P. 1.510(a). If the moving party
has failed to show an entitlement to a judgment as a matter of law it makes
no difference whether the moving party has succeeded in showing there is
no dispute of a material fact. § 14:2. Summary Judgment, 5 Fla. Prac.,
Civil Practice § 14:2 (2023 ed.) (citations omitted). In this case, the
6 determination of the existence of a duty of care in a negligence action is the
threshold question of law. See McCain v. Fla. Power Corp., 593 So. 2d
500, 502 (Fla.1992).
“The duty element of negligence focuses on whether the defendant's
conduct foreseeably created a broader ‘zone of risk’ that poses a general
threat of harm to others.” Id. at 502. “Where a defendant's conduct creates
a foreseeable zone of risk, the law generally will recognize a duty placed
upon defendant either to lessen the risk or see that sufficient precautions
are taken to protect others from the harm that the risk poses.” McCain v.
Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992); Smith v. Fla. Power &
Light Co., 857 So. 2d 224, 230 (Fla. 2d DCA 2003).
A duty may arise from multiple sources: “(1) legislative enactments or
administration regulations; (2) judicial interpretations of such enactments or
regulations; (3) other judicial precedent; and (4) a duty arising from the
general facts of the case.” Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d
1182, 1185 (Fla. 2003) (quoting McCain, 593 So. 2d at 503 n.2). The
present case falls into the fourth category: the duty, if it exists, would arise
from the general facts of the case. Goldberg v. Fla. Power & Light Co., 899
So. 2d 1105, 1110 (Fla. 2005); Limones v. Sch. Dist. of Lee Cnty., 161 So.
3d 384, 389 (Fla. 2015).
7 We conclude from this record that once Lawson placed the shipment
onto PMYY’s forklift, PMYY became the responsible party. At that point, the
shipment, and the duty to implement safety precautions, was in PMYY’s
sole control, not Lawson’s. Leon’s record testimony indicates that he
strapped the load to the forklift, and then drove the forklift some distance to
park it in the warehouse. The plaintiff Benitez’s record testimony is
contradictory, but in any event, the record shows that Benitez proceeded to
unload the shipment by himself, in disregard of any lack of straps or
assistance. Any foreseeable “zone of risk” surrounding the forklift and
shipment was in PMYY’s sole control once the shipment was delivered.
Smith, 857 So. 2d at 230 (“The reasonable specific foreseeability of a
general zone of risk to a given plaintiff is an objective test . . . that
recognizes that more is required than the mere general risk of injury that is
concomitant to all human activity.”) (internal quotations omitted).
Accordingly, we affirm.
Affirmed.