Ribovich v. Anheuser Busch, Inc., No. 95-2108-CIV-T-17.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtKovachevich
Citation972 F.Supp. 589
PartiesJames RIBOVICH, Plaintiff, v. ANHEUSER BUSCH, INC., et al., Defendants.
Docket NumberNo. 95-2108-CIV-T-17.
Decision Date14 July 1997

Page 589

972 F.Supp. 589
James RIBOVICH, Plaintiff,
v.
ANHEUSER BUSCH, INC., et al., Defendants.
No. 95-2108-CIV-T-17.
United States District Court, M.D. Florida, Tampa Division.
July 14, 1997.

Peter M. Commette, Peter M. Commette, P.A., Fort Lauderdale, FL, for Plaintiff.

Page 590

Bradley Edward Powers, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, J. Richard Caldwell, Jr., Rumberger, Kirk & Caldwell, P.A., Tampa, FL, for Defendants.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.


The cause is before the Court on defendants' motion for summary judgment, filed January 15. 1997 (Docket No. 50), and response thereto, filed May 8, 1997 (Docket No. 63).

BACKGROUND

This action was commenced on December 20, 1995, by the filing of a complaint in diversity against Anheuser Busch, Inc. and Anheuser Busch Companies, Inc. (hereafter the Busch Corporations). The complaint alleged only one cause of action: negligence, incident to the plaintiff being injured on the defendants' property (Docket No. 1). The complaint alleges that the injury to the plaintiff was caused by the defendants' negligence, including but not limited to:

1) failure to use reasonable care to provide and maintain a safe place to load and unload trucks;

2) failure to promulgate and enforce reasonable rules and regulations to insure the safety and health of business invitees, including the plaintiff;

3) failing to properly supervise the work area;

4) failure to apprehend a dangerous, recognizable hazard in the work area by defendants' personnel;

5) failure to properly plan for the work the plaintiff was to perform;

6) failure to post a lookout;

7) failure to have a safe procedure in effect so that the plaintiff could operate safely at defendants' facility;

8) failure to discover the dangerous condition;

9) failure to provide adequate instruction and supervision to their employees so as to protect plaintiff and other business invitees;

10) failure to follow sound management practices with the goal of providing invitees, such as plaintiff, a safe place to load or unload trucks; and/or,

11) failure to understand the hazards to plaintiff and then to take necessary step to eliminate or minimize the hazards or to warn the plaintiff of the danger from the hazards.

The factual allegations of the complaint are as follows: On May 10, 1995, while driving a truck on behalf of M.D. Transport Systems (hereafter M.D. Transport), the plaintiff made a delivery to the Anheuser Busch Brewery in St. Louis Missouri, which is owned and/or operated by one or both of the Busch Corporations. After unloading the beer kegs he was delivering, the plaintiff moved his truck forward from the loading bay, then got out to close the truck's doors. While closing the doors, a broken overhead light which was dangling from its conduit was dislodged and fell on the plaintiff's head. The impact of the falling light cut plaintiff's head, requiring eight (8) stitches, and knocked him to the ground. The plaintiff suffered brain damage with functional impairment, associated pain and losses, including but not limited to:

[S]evere headaches, dizziness, vertigo, permanent memory loss, depression, blurred vision, perpetually stiff and painful neck, fatigue, limited night vision, loss of concentration and organizing ability, a ringing in his ears, lost wages, impairment to working ability, and medical expenses.

The complaint asserts that the injuries sustained are either permanent or continuing in nature.

STANDARD OF REVIEW

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National

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Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):

In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

The Court also said, "Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at p. 324, 106 S.Ct. at p. 2553, 91 L.Ed.2d at p. 274. As the district court in Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D.Tex.1994), summarized:

Although a court must "review the facts drawing all inferences most favorable to the party opposing the motion," ... the nonmovant may not rest on mere allegations or denials in its pleadings; in short, "the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). However, merely colorable evidence or evidence not significantly probative will not defeat a properly supported summary judgment ... the existence of a mere scintilla of evidence will not suffice ... (cites omitted) at 810-811.

DISCUSSION

ASSERTIONS OF THE MOTION FOR SUMMARY JUDGMENT

A. THERE IS NO RECORD EVIDENCE THAT THE PLAINTIFF WAS INJURED AT THE ANHEUSER BUSCH ST. LOUIS, MISSOURI BREWERY

The defendants jointly seek to have summary judgment entered in this action, which the plaintiff vigorously opposes. The initial basis set forth in support of the motion is the defendants' claim that there is no record evidence that the plaintiff was injured at the Anheuser Busch St. Louis, Missouri Brewery (hereafter the brewery). The defendants allege that the plaintiff has mere speculation to support his claim that a light fixture fell on his head at the brewery. The following summarizes the evidence submitted in support and/or opposition to this issue:

1. The plaintiff picked up a load of beer kegs at the Anheuser Busch Brewery in Jacksonville, Florida, which he drove to St. Louis, Missouri, arriving there during the daytime hours of May 10, 1995. He was driving a standard height trailer, from 13'4" to 13'6".

2. Initially, he was required to stop at the guard shack to give them the bill of lading and his appointment time and to receive a card with the door number for unloading (Plaintiff (hereafter Pl.) Deposition (hereafter Depo.) pages (hereafter pgs.) 29, 38-39). Truckers then were to wait in a "holding" area until their number was called over the CB radio; the plaintiff waited approximately thirty (30) minutes that day to be called to Door 57 (Pl. Depo. pgs. 38, 40 & 43).

3. After a delay, the plaintiff's truck was unloaded by the forklift operator, while the plaintiff observed, and the bills of lading were signed; it was still daylight at this time and appears to have been between about 4:13 and about 4:25 p.m. (Pl. Depo. pgs. 51, 56-57 & 61, Exhibit [hereafter Ex.] 8 to Ducote Depo.). He returned to his truck and pulled it forward about six (6) feet (Pl.Dep.pg.62), then left the cab of the truck to shut the trailer doors. When he walked around to shut the door on the passenger side of the truck he heard glass break (Pl.Depo.pg.61).

4. At this point, the plaintiff's memory suffers. He believes he was hit on the head by a "light" (Pl.Depo.pg.65). He doesn't remember driving away from the brewery but has a vague recollection of encountering a "Department of Transportation (DOT)" employee outside the brewery property; he was

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stopped and inquiries were made about his load (Pl.Depo.pgs.67-70). When he got out of the truck, his hat fell off and there was blood over the whole side of his head...

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1 practice notes
  • Terry v. Carnival Corp., Case No. 13–20571–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 16 Enero 2014
    ...that the instrumentalities involved were under the exclusive management and control of the defendant. Ribovich v. Anheuser Busch, Inc., 972 F.Supp. 589, 594 (M.D.Fla.1997)aff'd sub nom. Ribovich v. Anheuser–Busch Cos., 180 F.3d 273 (11th Cir.1999). Again looking to the Restatement of Torts,......
1 cases
  • Terry v. Carnival Corp., Case No. 13–20571–CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 16 Enero 2014
    ...that the instrumentalities involved were under the exclusive management and control of the defendant. Ribovich v. Anheuser Busch, Inc., 972 F.Supp. 589, 594 (M.D.Fla.1997)aff'd sub nom. Ribovich v. Anheuser–Busch Cos., 180 F.3d 273 (11th Cir.1999). Again looking to the Restatement of Torts,......

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