Schindler Elevator Corp. v. Viera, 93-1227
| Decision Date | 12 October 1994 |
| Docket Number | No. 93-1227,93-1227 |
| Citation | 644 So.2d 563 |
| Parties | 19 Fla. L. Weekly D2161 SCHINDLER ELEVATOR CORPORATION, Appellant, v. Digna VIERA, as personal representative of the Estate of Ismael Viera, deceased, Appellee. |
| Court | Florida District Court of Appeals |
Heinrich Gordon Batchelder Hargrove & Weihe, and Paula Revene, Fort Lauderdale, for appellant.
Spence, Payne, Masington & Needle, and A. Francisco Areces; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, and Joel D. Eaton, Miami, for appellee.
Before BASKIN, JORGENSON and GERSTEN, JJ.
Appellant, Schindler Elevator Corporation (Schindler), appeals an adverse final judgment in this negligence action brought on behalf of Ismael Viera, the deceased. We reverse and remand for a new trial on liability because the trial court erred in denying Schindler's request to have the jury apportion the respective liability of a settling co-defendant pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla.1993).
The deceased fell to his death in an elevator shaft while attempting to escape from an elevator that was stuck between floors. His wife, appellee Digna Viera (Viera), as personal representative of the estate, sued Dade County as the owner of the elevator, and Schindler as the company responsible for the elevator's maintenance. Viera claimed that Schindler was negligent in failing to properly service the elevator, and further alleged that the county was negligent in failing to follow proper safety precautions. Prior to trial, the county settled with Viera individually for $100,000, and also settled with the estate for $100,000.
At the conclusion of the evidence, Schindler requested that the county be listed on the verdict form for apportioning liability. The trial court denied the request, and the jury only considered the liability of Schindler and the deceased. The jury entered a total award in favor of Viera for $600,000, finding Schindler to be 75% at fault, and the deceased to be 25% at fault. After reducing the award by the percentage of the deceased's comparative negligence, and setting-off the $100,000 settlement which Viera had received from the county, the trial court entered final judgment against Schindler for $350,000.
We agree with Schindler that reversal is required under Fabre v. Marin, 623 So.2d at 1182. The Florida supreme court in Fabre held that section 768.81(3), Florida Statutes (1989), requires that the jury be given the opportunity to apportion liability among all persons responsible for an accident. The supreme court recognized that "the only means of determining a party's...
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