4D05-3834-Biggins v. Fantasma Productions Inc.

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State: Florida

Court: Florida Southern District Court

Docket No: 4D05-3834.op

Case Date: 12/06/2006

Plaintiff: 4D05-3834-Biggins

Defendant: Fantasma Productions Inc.

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT July Term 2006 TIMOTHY BIGGINS, Appellant, v. FANTASMA PRODUCTIONS, INC. OF FLORIDA, FREELANCE PRODUCTIONS INC., CHOSEN SOUND & LIGHTING, INC., and THE CITY OF POMPANO BEACH, Appellees. No. 4D05-3834 [ December 6, 2006 ] HAZOURI, J. Timothy Biggins appeals a final summary judgment entered in favor of Chosen Sound & Lighting, Inc. We reverse. Biggins filed a four-count complaint against Chosen Sound, Fantasma Productions, Inc. of Florida, Freelance Productions, Inc., and the City of Pompano Beach, alleging negligence against each defendant arising from an accident in which Biggins received serious injuries after falling from a "Genie" lift used for rigging cables in preparation for a George Benson concert at the Pompano Beach Amphitheatre. Fantasma filed a motion for summary judgment on grounds that it enjoyed immunity as a general contractor under the Workers' Compensation Act. The trial court granted Fantasma's motion. Biggins voluntarily dismissed his case against Freelance and reached a settlement with the City of Pompano Beach. Chosen Sound was the only defendant remaining in the suit and is the only defendant involved in this appeal. Biggins's allegations against Chosen Sound were that it: failed to provide him with sufficient equipment, assistance, and supervision to safely perform his job; negligently ordered Biggins to perform work beyond the scope of his duties, responsibilities, and experience; failed to warn Biggins regarding the dangerous condition of the Genie lift when it knew or should have known of the danger; and created a hazardous environment by attempting to construct the stage and lighting without

sufficient equipment or supervision. Biggins testified at his deposition that he was hired by Backstage Productions to do lighting and electrical set-ups. Backstage was employed to provide workers for the George Benson concert at the Pompano Beach Amphitheatre in November 1999. Biggins was asked to work as a "rigger" at the concert, although he had only assisted other riggers in the past. Biggins testified that a rigger is a person who is responsible for hanging equipment from the ceiling while on a lift. Backstage did not train Biggins on the use of lifts. Biggins testified that he was working as an electrician for Backstage at the concert when an employee for Chosen Sound directed him to find a lift to go up and hang cable. Biggins could not locate "safety legs" for the lift. Safety legs are designed and used to stabilize the lift. Biggins testified that the Chosen Sound employee directed him to go up in the lift, even though there were no safety legs. Biggins went up on the lift by himself. After realizing he could not rig cables from the location where the lift was positioned, he started to bring the lift down. As he was bringing the lift down, the lift became unstable and fell over causing Biggins to fall approximately 14 to 20 feet, sustaining serious injuries. Chosen Sound filed two motions for summary judgment. The first alleged that Chosen Sound did not owe Biggins a legal duty because it did not own the Genie lift involved in the accident. The second motion for summary judgment claimed Chosen Sound had immunity from suit under the Workers' Compensation Act. In entering the summary judgment for Chosen Sound, the trial court granted both motions for summary judgment stating: "The Court finds that there are no genuine issues of material fact which would preclude Summary Judgment under the facts of this case." "The standard of review of an order granting summary judgment is de novo." Mobley v. Gilbert E. Hirschberg, P.A., 915 So. 2d 217, 218 (Fla. 4th DCA 2005 (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)). The party moving for summary judgment has the burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). "If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it
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should be submitted to the jury as a question of fact to be determined by it." Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citations omitted). We dispense with the first basis for the granting of the summary judgment, i.e., that there was no genuine issue of material fact that Chosen Sound owed a legal duty to Biggins. A review of the record reveals that there are genuine issues of material fact concerning whether Chosen Sound owed a legal duty to Biggins and whether that duty was violated, thereby precluding summary judgment. We also conclude that the trial court erred in granting Chosen Sound's motion for summary judgment based upon its conclusion that Chosen Sound was entitled to workers' compensation immunity. Section 440.10(1)(b), Florida Statutes (1999), provides: In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. Biggins claims Chosen Sound was not entitled to workers' compensation immunity because Chosen Sound was a subcontractor standing in a horizontal relationship to Biggins's employer, Backstage, which was another subcontractor under the same general contractor (Fantasma). See

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