Mann v. Pensacola Concrete Const. Co., Inc., 87-126

• Decision Date: 16 June 1988
• Docket Number: No. 87-126,87-126
• Parties: 13 Fla. L. Weekly 1428 Frank Randall MANN, Appellant/Cross-Appellee, v. PENSACOLA CONCRETE CONSTRUCTION COMPANY, INC., and United States Fidelity & Guaranty, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 279

527 So.2d 279

13 Fla. L. Weekly 1428

Frank Randall MANN, Appellant/Cross-Appellee, v. PENSACOLA CONCRETE CONSTRUCTION COMPANY, INC., and United States Fidelity & Guaranty, Appellees/Cross-Appellants.

No. 87-126.

District Court of Appeal of Florida,

First District.

June 16, 1988.

Rehearing Denied July 11, 1988.

Lefferts L. Mabie and Charles J. Kahn, Jr. of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant/cross-appellee.

Charles L. Cetti of Cetti, McGraw & Bearman, Pensacola; and Michael E. Smith of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees/cross-appellants.

SMITH, Chief Judge.

This is an appeal and cross-appeal from a final judgment awarding Mann damages for injuries he sustained as a result of the operation of a crane owned by Pensacola Concrete Construction Co., Inc. (Pensacola Concrete). The jury returned a verdict finding the crane operator, Donald Moore, sixty percent negligent and Mann forty percent negligent. The jury also found that Commercial Coatings, the employer of Moore and Mann, had not leased the crane for valuable consideration from the crane owner, Pensacola Concrete. We affirm.

Mann worked for Commercial Coatings; his supervisor was Donald Moore. James Murphy, Mann's employer and owner of Commercial Coatings, arranged with Robert Harris, owner of Pensacola Concrete, to use Pensacola Concrete's crane. On the day of the accident, Moore drove the crane from Pensacola Concrete's yard to Commercial Coatings' construction site. The crane was being used to raise bundles of roofing tin to the top of a new building, with Moore operating the crane and Mann using a sling at the end of the crane hook to secure the loads of tin to be lifted. During a lull in the work, Mann reached up and began doing pull-ups on the cable. Then he swung his legs straight out and up so that he was holding himself upside down. At that time, the crane engine was still running, and Moore put the crane into motion. Losing his balance, Mann locked his legs around the ball, while the cable continued to move upward with Mann holding on to it. According to Mann, he did not want to go for a ride, and yelled at Moore to lower the cable. Although the crane was moving slow enough for Mann to jump to the ground at some point, he testified that he thought the safest thing to do would be to hold on and wait for Moore to lower him back to the ground.

Moore testified that he assumed that Mann was "playing around," and wanted to go for a ride when he grabbed the cable with an expectant smile on his face; that is why Moore put the crane in gear and began lifting the crane hook. Moore testified that he watched Mann the entire time, and never saw him yell or otherwise indicate that he wanted to get down. When the boom on the crane reached the limit of its extension, making contact with the ball, the cable snapped, dropping Mann to the ground below, with the ball falling on top of him and causing serious injuries.

We begin our discussion with the issues raised on the cross-appeal, noting at the outset that this case is before us for the second time. See Mann v. Pensacola Concrete Construction Co., Inc., 448 So.2d 1132 (Fla. 1st DCA 1984), rev. den., 461 So.2d 115 (Fla.1984) (Mann I ). In its cross-appeal, Pensacola Concrete, citing and relying on Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966), asks this court to reexamine our decision in Mann I, and to rule that Pensacola Concrete is immune from tort liability under the circumstances presented here, that is, where its crane had been furnished to Mann's employer for use on a construction job, and Mann was injured solely as a result of the negligent use of the crane by a fellow employee on that job....