Keene v. Chicago Bridge and Iron Co., 89-2542

• Decision Date: 18 February 1992
• Docket Number: No. 89-2542,89-2542
• Citation: 596 So.2d 700
• Parties: 17 Fla. L. Weekly D549 Randy Wayne KEENE, Appellant, v. CHICAGO BRIDGE AND IRON COMPANY, an Illinois corporation, Appellee.
• Court: Florida District Court of Appeals

Page 700

596 So.2d 700

17 Fla. L. Weekly D549

Randy Wayne KEENE, Appellant, v. CHICAGO BRIDGE AND IRON COMPANY, an Illinois corporation, Appellee.

No. 89-2542.

District Court of Appeal of Florida,

First District.

Feb. 18, 1992.

Bruce J. Greenspan, Jacksonville, for appellant.

Bruce S. Bullock and Bert A. Rasmussen of Bullock and Childs, P.A., Jacksonville, for appellee.

ZEHMER, Judge.

Randy Wayne Keene, the plaintiff in this personal injury action against Chicago Bridge and Iron Company, appeals a final judgment pursuant to Chicago Bridge's motion for directed verdict that was granted after the jury returned a verdict for Keene. Alternatively, the trial court granted Chicago Bridge's motion for new trial on certain grounds should the directed verdict be reversed on appeal. Keene asserts that both rulings are error. Chicago Bridge cross-appeals the denial of its motion for new trial on the special ground of improper argument by Keene's counsel. We hold that the trial court erred in granting the motion for directed verdict because the record presented disputed issues of fact for resolution by the jury on each essential element of Keene's cause of action for negligence. We also hold that the trial court erred in granting a new trial because the record fails to support the grounds recited in the trial court's order. We find no merit in the cross-appeal because Chicago Bridge's counsel failed to make objections in the trial court sufficient to preserve this issue for appellate review.

I.

This appeal brings for review a judgment entered on a directed verdict for the defendant, Chicago Bridge, so it is necessary to view the facts shown by the evidence in the light most favorable to the plaintiff Keene. E.g., Teare v. Local Union No. 295, 98 So.2d 79 (Fla.1957); Pritchett v. Jacksonville Auction, Inc., 449 So.2d 364 (Fla. 1st DCA 1984); Gray v. Break, 440 So.2d 1297 (Fla. 5th DCA 1983).

On October 1, 1985, Keene was working for a company named Ceilcote at the St. Johns River Coal Power Plant in Duval County. Ceilcote was a subcontractor engaged in applying a corrosion-proof coating on the interior of huge steel storage tanks. This was Keene's third day on the job, and his duties were primarily to take down, move and set up scaffolding for the workers to stand on inside the tanks. The four-man crew Keene was working with needed additional boards to complete the scaffolding they were erecting, and the only boards available were stacked outside the tank. The stack contained boards of varying lengths, from six to fourteen feet, and measured approximately four feet wide and four feet high. The boards were not neatly stacked and were somewhat unstable. A sandblasting machine, sometimes referred to as a sand pot, was sitting on top of the stack of scaffolding boards.

Keene had never worked around sandblasting before and was not familiar with sandblasting equipment. The sand pot here involved had handles, two large wheels, and a stabilizer bar that kept it upright when stationary. It appeared to Keene and his labor foreman, Fred Johnson, to weigh about two to three hundred pounds, so they decided it could be moved off the stack of boards by hand. Unknown to them, the sand pot was full of sand and weighed about 1000 pounds, considerably more than their estimate. When they attempted to move the sand pot, with Keene holding on to the handle and Johnson grasping the stabilizer bar and tilting the machine towards Keene, it began to fall uncontrollably off the stack of boards. Keene lost his footing and was unable to remove his left hand from the handle before the sand pot crushed it, amputating portions of three fingers.

The sandblasting machine was owned by Chicago Bridge, another subcontractor on the power plant project, and used by its employees for sandblasting the storage tanks before painting. Chicago Bridge also had a mobile crane, commonly known as a cherrypicker, which was kept nearby and had been used by its employees to hoist the sand pot atop the stack of Ceilcote's scaffolding. There was some dispute in the evidence as to whether this crane could reach the sand pot when Keene attempted to move it in view of the presence of debris around the stack of scaffolding boards. The sand pot apparently had been in place on the stack for several days. The day before this accident, a laborer employed by Chicago Bridge had told one of its painting foremen that he needed to get the sandblaster off the stack of boards because it was not safe, and could fall and hurt someone. The foreman replied that the pot would be all right where it was.

Keene filed this action for damages against Chicago Bridge, alleging negligence in its permitting the sand pot to be and remain on the stack of Ceilcote's scaffolding boards because it created a dangerous condition that Chicago Bridge knew or should have known would foreseeably cause an injury to a worker such as Keene needing to use these boards. At trial, the parties adduced evidence on the various issues of fact. Among other things, the Chicago Bridge's painting foreman testified that it was possible for two strong men to move an empty sandblaster on ground level, but that he would not even attempt to do so when it was full of sand. Another laborer testified that he would not have attempted to move the sandblaster with a crane for fear of getting hurt. There was testimony by workers that one could determine whether the sand pot was full simply by raising the lid and looking in it, and also by the amount of difficulty encountered in moving it. One of Keene's witnesses was William J. King, Ph.D., who was found qualified by the court and permitted to testify as a human factors expert over Chicago Bridge's objection. This witness opined that a laborer not familiar with sandblasting equipment would not ordinarily appreciate the danger of moving such equipment under the circumstances described above.

The case was submitted to the jury, and it returned a verdict finding that Chicago Bridge was negligent and that such negligence caused Keene's injuries; that Keene was not negligent; and that Keene's damages amounted to $400,000. After the verdict was returned, Chicago Bridge moved to set aside the verdict and enter judgment in accordance with its motion for directed verdict pursuant to rule 1.480(b), Florida Rules of Civil Procedure. Subject to appellate review, Chicago Bridge also moved, in the alternative, for a new trial. Nine grounds were set forth in support of both motions. The trial court granted the motion for directed verdict notwithstanding the verdict, and alternatively, granted a new trial. After stating the facts essentially as set forth above, the trial court's final judgment recited:

In connection with obtaining some of the boards, the Plaintiff (Keene) and his foreman (Johnson) decided to roll the "sandblaster" off the boards. The foreman was going to "tilt it towards me. I was going to pull and he was going to push." (Trans. p. 22).

Plaintiff described the incident as follows (Trans. 25):

Q. Now, would you please describe for the jury how you were planning to move the sandblasting machine off of the boards?

A. I got the upper part, handle part as you showed there, I got the upper part and he went around and got the stabilizer, that is what they call it, you know, the stabilizer part. He bent over and he put his hand on that part and said, "Are you ready." And I said, "yes." He tilted it over toward me, my feet went out from under me, and the sandblaster, hopper, was on my left hand.

* * * * * *

In his memorandum (page 3), Plaintiff states the negligence of defendant as follows:

"In Plaintiff's Second Amended Complaint, upon which the action was tried, it was alleged that Defendant owed Plaintiff a duty to "maintain its equipment in a reasonably safe condition" so as not to injure persons who would foreseeably come into contact therewith. It was further alleged that Defendant breached this duty by causing the "blast machine" to be placed atop scaffolding boards, thus constituting a danger of which Defendant was, or should have been, aware. It was also alleged that Defendant further breached its duty by failing to warn of the dangerousness of the equipment or of the appropriate method by which to move it."

The trial court's judgment then concluded:

After review and reconsideration, the Court finds that there is no evidence that defendant "failed to maintain its equipment in a reasonably safe condition," or that placing the sandblaster on the boards constituted a danger of which defendant should have been aware, and finds, as a matter of law, that defendant did not breach any duty to plaintiff by failing to warn of the dangerousness of the equipment or of the appropriate method by which to move it. Vermont Mutual Insurance Company et al. v. Conway, (D.C.A. 1) 358 So.2d 123; Westchester EXXON v. Valdes, (D.C.A. 3) 524 So.2d 452. Further, the evidence shows that the acts of the Plaintiff and his foreman were the legal cause of Plaintiff's injury. Melton v. Estes, et al. (D.C.A. 1) 379 So.2d 961.

Therefore, the motion of the plaintiff [sic] to set aside the verdict and enter judgment in accordance with the motion on ground 1 for directed verdict is granted. ¹

In the alternative and should the grant of directed verdict be reversed, Winn-Dixie Stores, Inc. v. Robinson, (Fla.S.C.) 472 So.2d 722, the Motion for New Trial is granted on grounds 2, 3 (Except as to "improper conduct of plaintiff's counsel") and 5. Smith v. Brown, (Fla.S.C.), 525 So.2d 868; Pullum v. Regency Contractors, Inc., (D.C.A. 1), 473 So.2d 824; Florida Power Corporation v. Barron, (D.C.A. 2), 481 So.2d 1309. ²

In granting the motion for directed verdict, it was the view of the trial court that Keene failed to prove each element of the negligence charged in the complaint. In so ruling, the trial court erred because the record contains competent evidence in support of the jury's verdict for Keene....