Lopez v. Dublin Co., 84-2716

Decision Date27 May 1986
Docket NumberNo. 84-2716,84-2716
Citation489 So.2d 805,11 Fla. L. Weekly 1198
Parties11 Fla. L. Weekly 1198 Louis LOPEZ, Appellant, v. The DUBLIN COMPANY, a Florida corporation, and Old Republic Insurance Co., a foreign corporation, Appellees.
CourtFlorida District Court of Appeals

Hessen, Schimmel & DeCastro, Joel V. Lumer, Miami, for appellant.

Joe N. Unger, Welsh & Telander, Miami, for appellees.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

Plaintiff, Louis Lopez, appeals from a final judgment in favor of defendants, The Dublin Company and its insurer, Old Republic Insurance Company.

Lopez, a construction laborer, brought this action against defendants for injuries sustained when he fell through a hole in the floor of a building under construction. He alleged that defendant Dublin was negligent in creating the dangerous condition which caused the accident.

On June 14, 1984, plaintiff served on defendants a request for production of documents and thirty-four interrogatories. On September 4, 1984, plaintiff filed motions to compel production of documents and answers to the interrogatories. 1 The interrogatories requested, inter alia: (1) the name and address of the agent of Dublin who rendered assistance to the plaintiff, (2) all factors or events which defendants contend contributed to the accident, (3) the names of the people working for Dublin at the job site, and (4) conversations between Lopez and Dublin's employees. In addition, the interrogatories asked: (1) whether Dublin was doing construction work at the time and place of the accident and specifics of that work, (2) whether Dublin had prior knowledge of the condition, (3) whether the defendants were claiming that Lopez caused the accident, and (4) whether the defendants were claiming that a third party caused the accident. The production request sought work logs, progress records for the job site, and time records of Dublin's employees who worked at the job site.

Shortly after the accident Dublin ceased doing business and declared bankruptcy. Apparently it was unable to find witnesses or documents in order to respond to plaintiff's discovery demands. In order to be relieved from complying with discovery, defendant Dublin entered into a stipulation with plaintiff, approved by the court, which provided:

1. That the Defendant, The Dublin Co., agrees and stipulates to be bound by all testimony of the Plaintiff or his witnesses concerning liability issues and will not offer any witnesses or documentary evidence contesting Plaintiff's version regarding the manner in which the subject accident occurred.

2. The parties stipulate that all pending issues as framed in the pleadings shall remain as pled and shall be ruled upon after the consideration of admissible testimony on these issues by the Court.

At trial, plaintiff testified to the following. On the day of the accident he was told by his foreman to go to the tenth or eleventh floor to strip shores from the dried concrete and to make sure no one was on the floor below him. He told the foreman on the floor below not to remove the covers from holes in the floor that provide space for air conditioning ducts and plumbing pipes because he and others were working on the floor above. The foreman told Lopez that he and his men did not have to work at that time and that they would wait until the men working on the floor above were finished. The foreman and his men on the floor below wore hats that said "Dublin" and shirts with the inscription "We do it faster--Dublin."

Approximately fifteen to thirty minutes later, as Lopez was carrying two six-foot-long shores to a stack, his right leg went through a hole and his left knee came down on the concrete. No one from Dublin had cautioned him that the cover on the hole had been removed. While Lopez remained in the fallen position at the suggestion of his coworkers, the Dublin foreman came up to his floor, admitted that he had removed the cover and apologized, explaining that there was nothing he could have done because his supervisor told him to get to work.

At trial Dublin was permitted to impeach plaintiff as to "inconsistencies" between his pretrial deposition testimony and the testimony given on direct examination at trial. The impeachment went to matters which were the subject of the frustrated discovery, of which Dublin, in some cases, had better knowledge. Particularly, plaintiff was impeached for stating in his deposition that he was unsure whether the hole in the floor was for plumbing or air conditioning fixtures, whether Dublin was an air conditioning or plumbing subcontractor, how long the hole had been uncovered, and how the material covering the hole had been removed, whereas at trial his testimony was more specific. Further, Dublin attempted to show plaintiff as unworthy of belief for not saying in deposition, as he did at trial, that he warned defendant's employees against removing hole covers while he was working and that other subcontractors were working on the building at the same time.

Plaintiff objected on grounds that the impeachment by use of the pretrial...

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7 cases
  • Fawaz v. Florida Polymers
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1993
    ...or mistake of fact. Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991); Lopez v. Dublin Co., 489 So.2d 805, 807 & n. 3 (Fla. 3d DCA 1986); Curr v. Helene Transp. Corp., 287 So.2d 695, 697 (Fla. 3d DCA 1973). The record in the instant case fails to reveal, however, ......
  • De La Guardia v. De La Guardia, 87-2950
    • United States
    • Court of Appeal of Florida (US)
    • December 20, 1988
    ...the Paraguayan decree was a property settlement agreement not subject to modification. We find no error and affirm. Lopez v. Dublin Company, 489 So.2d 805 (Fla. 3d DCA 1986); Carrison v. Carrison, 486 So.2d 1363 (Fla. 1st DCA 1986); Strickland v. Strickland, 344 So.2d 931 (Fla. 2d DCA 1977)......
  • McGoey v. State
    • United States
    • Court of Appeal of Florida (US)
    • May 19, 1999
    ...but also upon the trial and appellate courts. See Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971); Lopez v. Dublin Co., 489 So.2d 805, 807 (Fla. 3d DCA 1986). "To avoid the consequences of a stipulation properly entered into, a party must show that the agreement is the product ......
  • U.S. Fire Ins. Co. v. Roberts, 88-2610
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 1989
    ...Corp., 287 So.2d 695 (Fla. 3rd DCA 1973); Hartford Insurance Co. v. Redding, 47 Fla. 228, 37 So. 62 (1904); Lopez v. Dublin Company, 489 So.2d 805, 807 fn. 3 (Fla. 3rd DCA 1986). The trial court properly considered the fact that the defendant had not theretofore relied to its detriment upon......
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