PLAZA V. FISHER

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PLAZA V. FISHER

State: Florida

Court: Florida Third District Court

Docket No: 06-3190

Case Date: 12/19/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed December 19, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-3190 Lower Tribunal No. 01-4673 ________________

Nicholas Plaza,
Appellant, vs.

Fisher Development, Inc., et al.,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Scott M. Bernstein, Judge. Templer Law and Laura P. Templer, for appellant. Richard A. Sherman, Sr. (Ft. Lauderdale); Wolpe, Leibowitz, Alvarez, Fernandez and George L. Fernandez, for appellee Fisher Development, Inc.

Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ. ROTHENBERG, Judge.

The plaintiff, Nicholas Plaza ("the Plaintiff"), appeals from an order granting final summary judgment in favor of defendant Fisher Development, Inc. ("Fisher"). We affirm. In 1999, the Plaintiff, who was an employee of Pottery Barn, was allegedly injured when he fell onto a conveyor system at a Pottery Barn store. In 2001, the Plaintiff filed suit against several entities, including Automated Conveyor Systems, Inc. ("Automated Conveyor"), Northern Steel Company ("Northern Steel"), and Fisher. The Plaintiff's second amended complaint alleges two counts against

Fisher, strict liability (Count V) and negligence (Count VI). Count V alleges that Fisher is strictly liable for the injuries sustained by the Plaintiff because Fisher was the distributor of the subject conveyor, which was defective when it left Fisher's possession. Count VI alleges that Fisher, "through its employees and/or agents, was negligent in the manner in which it installed or assembled the conveyor." The Plaintiff's second amended complaint alleges that the subject conveyor was defective because the "pinch point" was not protected by a guard and because there was no "kill-switch" control. In its answer to the second amended complaint, Fisher denied these allegations. After approximately five years of defending against this lawsuit, Fisher filed a motion for final summary judgment, arguing that based on the undisputed facts, it was entitled to judgment as a matter of law. Fisher asserted that the undisputed

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facts demonstrate that it was hired by Williams-Sonoma, Inc., Pottery Barn's parent company, to act as the general contractor for the construction of the Pottery Barn store where the Plaintiff was allegedly injured; Williams-Sonoma and its architect supplied the plans and specifications, which included the installation of the subject conveyor; Fisher entered into a subcontract with Northern Steel, whereby Northern Steel agreed to provide and install the subject conveyor; the subject conveyor was designed, manufactured, and sold by Automated Conveyor; the allegedly defective conditions were patent; and Williams-Sonoma had inspected, accepted, and approved the construction of the Pottery Barn store. As to the strict liability count, Fisher, citing to Neumann v. Davis Water & Waste, Inc., 433 So. 2d 559 (Fla. 2d DCA 1983), argued, in part, that it was entitled to summary judgment because the subject conveyor is a structural improvement to real property, not a product, and Florida law recognizes that principles of strict liability are not applicable to structural improvements to real property. As to the negligence count, Fisher argued that the allegedly defective conditions were clearly patent, and under the Slavin 1 doctrine, a contractor cannot be held liable for injuries sustained by third parties that occurred after the contractor completed its work and the owner of the property accepted the contractor's work if the defects causing the injury were patent.

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Slavin v. Kay, 108 So. 2d 462 (Fla. 1959). 3

In support of its motion for final summary judgment, Fisher submitted the affidavit of Denise Sharp, Fisher's President. She averred that Fisher is not a distributor or manufacturer of conveyor systems; it did not manufacture, distribute, or sell the subject conveyor system; Northern Steel was the subcontractor hired by Fisher to install the subject conveyor system; and in 1997, Williams-Sonoma conducted the final walk-through of the Pottery Barn store, and accepted all of the work completed by Fisher and its subcontractors. At the hearing on the motion for summary judgment, it was undisputed that when a customer purchases an item at the Pottery Barn store, the subject conveyor is utilized to transport the item from Pottery Barn's storage area, which is located on the second floor, to Pottery Barn's retail area, which is located on the first floor. The subject conveyor is affixed to a stretcher that has an electrical system, and the electrical system is affixed to the building. The trial court granted Fisher's motion for final summary judgment. Thereafter, the Plaintiff filed the instant appeal. The Plaintiff contends, in part, that the trial court erred in granting summary judgment in favor of Fisher as to the strict liability count because the subject conveyor is a product, not a structural improvement to real property, and therefore, Fisher can be held strictly liable. We disagree. In West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976), the Florida

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Supreme Court adopted the doctrine of strict liability as set forth in section 402A of the American Law Institute Restatement (Second) of Torts. As summarized by the court, "strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." West, 336 So. 2d at 86 (emphasis added). This doctrine has since been expanded "to others in the distributive chain including retailers, wholesalers, and distributors." Friedland Family Enters. v. Amoroso, 630 So. 2d 1067, 1068 (Fla. 1994). Fisher, citing to Neumann, argues on appeal, as it did below, that the subject conveyor is a structural improvement to real property, not a product, and therefore, the doctrine of strict liability is inapplicable. In Neumann, a three-year-old boy drowned after he fell into a sewage treatment tank. The plaintiffs asserted a strict liability claim against the defendant, who was the installer or assembler of the sewage treatment tank. The trial court dismissed with prejudice the strict liability claim against the defendant. The plaintiffs appealed the trial court's decision to the Second District Court of Appeal. The Second District, noting that the sewage treatment tank was "an integral part of the sewage facility," declined "to extend the strict liability principle of West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976), to structural improvements to real estate." Neumann, 433 So. 2d at 561; see Easterday v. Masiello, 518 So. 2d 260, 261 (Fla. 1988) ("[I]t has long been Samuel

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recognized that the doctrine of strict products liability does not apply to structural improvements to real estate."); Jackson v. L.A.W. Contracting Corp., 481 So. 2d 1290, 1291 (Fla. 5th DCA 1986). The Plaintiff argues that Neumann is inapplicable because the subject conveyor system is a product, not a structural improvement to real property. In support of his argument, the Plaintiff relies on Tri-Pak Machinery, Inc. v. Hartshorn, 644 So. 2d 118 (Fla. 2d DCA 1994). In Tri-Pak, the plaintiffs, Mr. and Mrs. Hartshorn, filed a strict liability claim against the manufacturer of the conveyor, Tri-Pak Machinery, Inc. ("Tri-Pak"), alleging that Mrs. Hartshorn was injured when her finger got caught in a conveyor at a tomato packing plant. The trial court instructed the jury on strict liability and negligence. The jury returned a verdict in favor of Tri-Pak, and thereafter, the trial court granted the plaintiffs' motion for new trial. Tri-Pak appealed to the Second District. The Plaintiff acknowledges that Tri-Pak does not address whether a conveyor is a product or a structural improvement to real property, but argues that because the trial court instructed the jury on strict liability, the trial court found that the conveyor was a product subject to strict liability principles. The Plaintiff's reliance on Tri-Pak is misplaced. First, there is no indication in the opinion that this issue was raised before the trial court, or that the trial court even considered this issue. Next, Tri-Pak is factually distinguishable as the lawsuit was filed

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against the manufacturer of the conveyor system, and in the instant case, Fisher is not the manufacturer of the subject conveyor system. The Plaintiff also relies on the First District Court of Appeal's decision in Pamperin v. Interlake Cos., 634 So. 2d 1137 (Fla. 1st DCA 1994), in support of his argument that the conveyor system is a "product," and therefore, within the scope of the strict liability doctrine. In Pamperin, the plaintiff's employer was hired to install a storage rack system that was manufactured by Interlake Companies Corporation ("Interlake"). While installing the storage rack system, the plaintiff fell due to a defect in the storage rack system, and he was injured. The plaintiff filed a strict liability action against the manufacturer, Interlake. Interlake moved for summary judgment, arguing, in part, that it could not be held strictly liable because the storage rack system was an improvement to real property, not a product. The trial court granted Interlake's motion for summary judgment. The plaintiff appealed to the First District, which reversed, holding, in part, as follows: We address now the lower court's determination that the instant storage rack system is not a product within the scope of the strict liability doctrine. We are aware of the line of cases holding that structural improvements to real property are not generally considered products for purposes of products liability actions. Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988) (jail facility); Seitz v. Zac Smith & Co., Inc., 500 So. 2d 706 (Fla. 1st DCA 1987) (floodlight tower); Craft v. Wet `N Wild, Inc., 489 So. 2d 1221 (Fla. 5th DCA 1986) (amusement park water slide); Neumann v. Davis Water and Waste, Inc., 433 So. 2d 559 (Fla. 2d DCA), review denied, 441 So. 2d 632 (Fla. 1983) (sewage treatment tank); and Edward M. Chadbourne, Inc. v. Vaughn, 491 So. 2d 551 (Fla. 1986) (public road). We conclude, 7

however, that the lower court erred in likening this rack system to such permanent fixtures. Expert witness Coloney attested that such storage rack systems can be, and are, disassembled and resold and are not permanent improvements to real property. We cannot glean from the order below whether the lower court overlooked, disregarded, or discounted this testimony. We, however, find it compelling on this issue. Upon review of the record below, and after carefully analyzing existing case law on the subject, we conclude, as a matter of law, that the instant storage rack system is a product for purposes of the underlying action. Pamperin, 634 So. 2d at 1140. We find that Pamperin is distinguishable because the strict liability count in that case was filed against the manufacturer of the storage rack system, whereas, the strict liability count, which is the subject of this appeal, was filed against the general contractor. We are equally unpersuaded by the notion that the

determination of whether the subject storage rack system is a "product," should be governed by whether it can be disassembled and then resold. If that was the case, practically anything affixed to real property would constitute a "product." More importantly, Plaza never presented any sworn testimony that the subject conveyor system could be disassembled and resold. Pamperin is, therefore, inapplicable. Although we have not located a Florida case addressing whether a conveyor system is a product or a structural improvement to real property, courts in other jurisdictions have concluded that the subject conveyor systems before them were structural improvements to real property, not a product. In McCormick v.

Columbus Conveyer Co., 564 A.2d 907 (Pa. 1989), Mr. McCormick was injured 8

when his arm got caught in a conveyor belt of a coal delivery system. Two of the defendants filed motions for summary judgment, arguing that the statute of repose barred the action. The statute of repose provided, in part, as follows: "[A] civil action or proceeding brought against any person lawfully performing or furnishing the design, planning supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages . . . ." Id. at 908 (quoting 42 Pa. Cons. Stat.

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