03-2980 STA-RITE V. LEVEY

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-2980 STA-RITE V. LEVEY

Case Date: 12/22/2004

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 JULY TERM A.D. 2004 ** ** ** ** ** ** ** LOWER TRIBUNAL NO. 01-20887 CASE NO. 3D03-2980

STA-RITE INDUSTRIES, INC., a Wisconsin corporation, Appellant, vs. LEWIS J. LEVEY, as Personal Representative of the estate of LORENZO PETERSON, a minor, Appellees.

Opinion filed December 22, 2004. An Appeal from the Circuit Court for Dade County, Celeste Hardee Muir and Harold Solomon, Judges. Marlow Connell Valerius Abrams Adler & Newman; Kneale and Mark Hicks and Dinah Stein, for appellant. Hicks &

Haggard, Parks, Haggard & Bologna and Andrew Haggard and Robert Parks and Michael Haggard; Wetherington, Klein & Hubbart and Gerald T. Wetherington and Phillip A. Hubbart, for appellees. Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

While

visiting

his

mother

at

the

Village

Apartments,

fourteen year old Lorenzo Peterson decided, along with a teenage friend, to swim in the complex's pool. During that innocent

excursion he suffered severe brain injuries which occurred when, after removing an unsecured protective grate, he was caught in the powerful suction of the exposed drain. The efforts of

numerous rescuers could not pull him out and, by the time the suction was released after it had become necessary to break down the locked door of a shack which housed the on and off switch, almost twelve minutes had passed. The boy had become

catastrophically brain damaged and, at the time of the trial, was in a permanent vegetative state.1 His representatives brought claims against Roberta Segal, the owner of the Village the Apartments, she hired and to All Florida and

Distributors,

Inc.,

company

maintain

operate the pool. against them for In

These potential defendants settled the cases four this million case, and three million dollars the

respectively.

Sta-Rite

Industries,

Inc.,

manufacturer of the pump, appeals from a judgment entered on a $104,409,053.20 jury verdict for the plaintiff, based on product liability theories of (a) defective design; and (b) failure

We have been told that during the pendency of this appeal, indeed after oral argument, Lorenzo died. The possible legal effect of this fact is treated in note 16 infra.
1

2

properly to warn the owner and users of the pool of the dangers posed by permitting the drain to become exposed. While we do not agree with Sta-Rite's primary contention on appeal that as the to evidence its was insufficient on either to create a we jury find

question

liability

theory,

reversible error in the trial court's treatment of the owner and maintenance company as Fabre2 defendants. We also conclude that

the damage verdict cannot stand and that any new trial must involve the issues, not only of the respective responsibilities of Sta-Rite, the owner, and maintenance company, but of damages as well. I. We first conclude that the evidence supports the jury

verdict as to Sta-Rite's liability on both the defective product and reasonable warning issues: 1. Defective design. The plaintiff's most prominent theory was that Sta-Rite's pump was "defectively designed," see West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)(adopting Restatement (Second) of Torts

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