Thomas v. Perry Manufacturing, Inc.

539 So. 2d 2, 14 Fla. L. Weekly 443, 1989 Fla. App. LEXIS 668, 1989 WL 11262

• Court: District Court of Appeal of Florida
• Decided: February 15, 1989
• Docket: No. 87-2384
• Status: Published

Opinion

PER CURIAM.

Máxime Thomas was injured when he fell from a scaffold on which he was working as a wallboard installer. He brought a products liability action against the scaffold manufacturer, Perry Manufacturing, Inc., (Perry), which lawsuit resulted in summary final judgment in favor of the defendant. We reverse.

Although Thomas has photos taken of the scaffold shortly after the accident, the scaffold itself is no longer to be found. Thomas’ expert opined design defects based on those photos, as well as on Perry’s specifications.

Assuming Thomas can persuade a jury that there were indeed design defects, he still must establish that such defects were the cause of his misfortune. West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976).

We do not envy Thomas that task. The scaffold’s nonavailability places an exceedingly difficult burden on him to eliminate other logical reasons for the scaffold to dislodge him, such as its age, poor maintenance, improper fabrication, just to name a few.

Nevertheless, an adverse summary final judgment is not a proper vehicle with which to relieve Thomas of his burden. DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986).

REVERSED and REMANDED for further proceedings consistent herewith.

GLICKSTEIN and GARRETT, JJ., and KAHN, MARTIN D., Associate Judge, concur.