01-2197 GEHR V. NEXT DAY

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d01-2197

Case Date: 02/20/2002

Plaintiff: 01-2197 GEHR

Defendant: NEXT DAY

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2002 JACK RICHARDO GEHR, Appellant, vs. NEXT DAY CARGO, INC., Appellee. ** ** ** ** ** CASE NO. 3D01-2197 LOWER TRIBUNAL NO.00-31547

Opinion filed February 20, 2002. An appeal from the Circuit Court for Dade County, Florida, Thomas S. Wilson, Jr., Judge. Stokes and Gonzalez and Jacinto Gonzalez, for appellant. Freud & Abraham and Peter E. Abraham, for appellee.

Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge. NESBITT, Senior Judge. In a negligence action, an injured invitee appeals the summary judgment issued in favor of a premises owner. We affirm.

Jack Ricardo Gehr brought a package to Next Day Cargo, Inc. for shipping. Upon arrival, Gehr walked through the parking lot

and into Next Day's loading dock area. One of Next Day's employees met Gehr, and together they exited the loading dock area and returned to Gehr's vehicle. That same employee instructed Gehr to

wait by his car until the employee returned with certain necessary paperwork. Next Day's loading dock was brimming with packages.

Thereafter, a truck driver, not employed or associated with Next Day, stopped his truck in the parking lot, and proceeded to lower the truck's lift-gate with a large box on it. According to Gehr, the driver requested Gehr's assistance in lowering the package. Unbeknownst to Gehr, the package contained a hospital bed weighing approximately 300 pounds. The box fell Gehr

from the lift-gate onto Gehr's left ankle, injuring Gehr.

brought the instant action against Next Day for failing to maintain the premises in a reasonably safe condition and failing to warn Gehr of a dangerous condition of which Next Day knew or should have known. Next Day filed for Summary Judgement, arguing that no act or omission on its part was the proximate cause of the subject accident, and that Next Day owed Gehr no duty to warn him of the hazards in assisting the truck driver when Gehr's assistance was voluntary and unforeseeable, and the risks, obvious. In response, Gehr submitted the testimony of the truck driver in the past, boxes had obstructed the loading dock, thereby forcing the driver to unload his deliveries in the middle of the company's entranceway and that he had notified Next Day of this problem. Gehr also

submitted the testimony of Next Day employee, Lazaro Ramos, who said that Next Day was expecting the bed and that it was being delivered at Next Day's request. 2 The trial judge thereafter

granted final summary judgment on behalf of Next Day. As observed in Hoffman v. Bennett, 477 So. 2d 43 (Fla. 3d DCA 1985), in proximate cause cases, the court must determine, inter alia, (1) causation in fact, i.e., whether the defendant's conduct was a substantial factor in producing the result, and (2) whether the defendant's responsibility is superseded by an abnormal intervening force. These determinations are to be made as a matter of law where reasonable people could not differ. In Hoffman, the

plaintiff sustained injuries when a church employee threw a harmful chemical in her face. She brought an action against a building

contractor, who had left the chemical on premises. We affirmed the summary judgment in contractor's favor, concluding that contractor could not be held liable as the actions of the church employee constituted the superseding cause of the harm. In Barnes v. Gulf Power Co., 517 So. 2d 717, 718 (Fla. 1st DCA 1987), the court observed that while normally causation is a jury question, when reasonable people could not differ, the issue is one of law for the court. The plaintiffs in Barnes were telephone

repairmen who claimed they were forced to complete a job after dark due to power company's delay in repairing electrical lines. The

repairmen were attacked by unknown assailants at the jobsite. The First District concluded that the power company's conduct could not be considered a substantial factor in bringing about harm suffered, and the court affirmed the summary judgment that had been ordered in the power company's favor. See Banat v. Armando, 430 So. 2d 503 3

(Fla. 3d DCA 1983)(negligence of truck owner in leaving hydraulic lift in rear of truck down while truck was being operated in traffic, though furnishing an occasion for injury to passenger in front seat of small car when hydraulic lift tore through windshield as car crashed into rear of truck when car's brakes failed, was not a proximate cause of injury); Salinetro v. Nystrom, 341 So. 2d 1059, 1061 (Fla. 3d DCA 1977) (directed verdict in favor of defendant proper where it is not shown that the injury suffered by plaintiff was caused by the alleged wrongful act or omission to act by the defendant). As the trial court concluded, no act or omission by Next Day could be considered a substantial factor in bringing about the harm suffered by customer Gehr. Thus, summary judgment was properly As every first year law

entered in the cargo company's favor.

student is instructed, "Proof of negligence in the air, so to speak, will not do." Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99(1928)(opinion per Chief Judge Cardozo, quoting Sir Frederick Pollock). Accordingly, the order under review is affirmed.

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