Albelo v. Southern Bell, 95-1798
| Decision Date | 09 October 1996 |
| Docket Number | No. 95-1798,95-1798 |
| Citation | 682 So.2d 1126 |
| Parties | 21 Fla. L. Weekly D2165 Gabriel ALBELO and Patricia Albelo, his wife, Appellants, v. SOUTHERN BELL k/n/a Bell South Telecommunications, Inc. and Emerald Village Professional Plaza Company, Inc., Appellees. Fourth District |
| Court | Florida District Court of Appeals |
David A. Hoines of Hoines and Rose, Fort Lauderdale, for appellants.
John R. Hargrove of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for Appellee-Bell South Telecommunications, Inc.
Appellants, Gabriel and Patricia Albelo, plaintiffs below, appeal a final summary judgment in favor of Appellee, Southern Bell k/n/a Bell South Telecommunications, Inc. (Southern Bell). We reverse because the record demonstrates the existence of genuine issues of material fact as to whether Southern Bell, its agents or employees, created the condition which caused the personal injuries sustained by Appellant, Gabriel Albelo.
The record demonstrates that Appellant Gabriel Albelo was employed by Industrial Waste Service as a refuse collector. His regular route included the Emerald Village Professional Plaza where he collected refuse from two dumpsters three times each week. The dumpsters were located in an alleyway near the plaza. On the morning of May 3, 1989, at approximately 9:30 a.m., when he arrived at the entrance to the alleyway, he found it blocked by three Southern Bell vehicles which he described as being two vans and a big truck. He also saw several Southern Bell employees walking around in the area of the alleyway and upon conversing with them, he was told by them that he could not make his pickup because they were working in the alley. Since he could not access the area where the dumpsters were located, he left the area and continued with the remainder of his route.
The record further demonstrates that Mr. Albelo returned to the area that same day at approximately 2:30 p.m. at which time he found the entrance to the alleyway and access to the dumpsters no longer blocked. Moreover, he found no Southern Bell vehicles or employees in the area. Therefore, he proceeded to collect the refuse from the two dumpsters. As Mr. Albelo was rolling one of the dumpsters toward the rear of his vehicle, the wheels of the dumpster rolled into an uncovered trench which had been cut through the pavement. This caused the wheels of the dumpster to come to a sudden and abrupt stop which in turn caused Mr. Albelo to slip and the dumpster to fall pinning him underneath it. He sustained injuries to his knee and shoulder. The record reflects that the trench in question contained cable which was the property of Southern Bell.
Appellants sued Southern Bell and in their second amended complaint alleged that Southern Bell was negligent initially in creating the trench and then leaving it in an uncovered and unpatched condition. They alleged further that Southern Bell was negligent in failing to barricade the trench or to warn Mr. Albelo of its existence. More importantly they alleged that Mr. Albelo's personal injuries were caused "solely and wholly" by the negligence of Southern Bell, its agents or employees. In support of their allegations, Appellants presented, inter alia, the following deposition testimony of Mr. Albelo:
Q. Tell me what happened when you got there?
A. I got there and the Southern Bell truck was there working, so I left. It's an alley, so they were blocking it; nothing I could do. I called dispatch and told them it's blocked; I can't get in there. So I went to do the rest of my route.
Q. How many Southern Bell trucks were there when you first got there at 9:00, 9:30 that morning, more than one?
A. I can't remember, I saw three trucks. I'm not sure.
Q. You think you saw three but you're not sure?
A. It could be more.
Q. It certainly was more than one though?
A. More than one. They had the big truck; that I can remember, then the little trucks they had.
Q. That was my next question. What type of Southern Bell trucks were they? Were they vans--
A. I can remember two vans and a big truck, but I don't know if there were more or not because they was working. I seen the whole alley was blocked, so I left.
Q. When you saw the Southern Bell trucks, did you see any actual workers for Southern Bell doing anything in the alleyway?
A. I seen the guys walking around. I didn't pay attention.
* * * * * *
Q. That why I asked you earlier, sir, when you initially went to the site in the early morning hours on May 3, 1989, when the Southern Bell trucks were parked and blocking your way what precluded you from going to the other gated enclosure to dump that dumpster?
A. Both--the alley was blocked from here to here (indicating). I couldn't get in.
Q. What you're telling me is the alley was--
A. They had the whole thing blocked. See, the alley comes from here (indicating). You drive up and come up to the street over here (indicating). The whole thing was blocked.
* * * * * *
Q. Do you know who created that condition or how it was created?
A. I figured it was the people who were working there.
Q. Did anyone tell you that Southern Bell or someone else created that condition as it's depicted in photographs 1G and 1F.
A. No, I didn't ask nobody. I seen them working there. They had all that stuff they carry with them. I figured it was them.
Q. Do you know what Southern Bell was doing when you got there early that morning at 9:00, 9:30?
A. No. I don't know what they were doing.
Q. Did you get out of the truck to see at 9:00 or 9:30 what they were doing?
A. I got out of the truck; I asked the guy; he said I can't pick up now because they're working there, so I left.
Q. When you got out of your truck to speak with the Southern Bell person, did you walk to that condition?
A. No. I didn't walk. I just walked where he was standing in the truck drinking coffee.
Q. Did you see what type of equipment they had outside their trucks?
A. All I can see is a big truck with a trailer on it and the regular trucks they got.
* * * * * *
Q. Do you know where exactly the Southern Bell employees were working on the day of the accident?
A. I didn't seen them working. I seen the equipment there and I seen the guys standing around when I got out of the truck to talk to the guy drinking coffee. They say they're going to work. They have that blocked for a while.
Southern Bell moved for summary judgment, primarily asserting that it did not perform any work on the date of the incident in the area where Mr. Albelo was injured. The motion for final summary judgment specifically states, inter alia, "it is undisputed that Bell South did not perform any work at the location where plaintiff alleges to have been injured." Additionally, in its motion for final summary judgment, Southern Bell claimed that its general contractor, Church & Tower, performed the work as an independent contractor. In support of its motion, Southern Bell presented, inter alia, the testimony of its employee, Mr. Poston, who testified that no Southern Bell employees performed any work or were present at the scene where Mr. Albelo was injured on May 3, 1989. The relevant portions of his deposition testimony are as follows:
Q. Okay. This incident apparently...
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