Tanner v. Beck

• Decision Date: 01 June 2005
• Docket Number: No. 3D04-1200, No. 3D04-1201.
• Citation: 907 So.2d 1190
• Parties: Mae TANNER and Norma A. Atima, Appellants, v. Victor BECK, by and through Ruth HAGERTY, Legal Guardian, Appellee.
• Court: Florida District Court of Appeals

907 So.2d 1190

Mae TANNER and Norma A. Atima, Appellants, v. Victor BECK, by and through Ruth HAGERTY, Legal Guardian, Appellee.

Nos. 3D04-1200, 3D04-1201.

District Court of Appeal of Florida, Third District.

June 1, 2005.

Rehearing and Rehearing Denied August 17, 2005.

Papy, Weissenborn, Vraspir & Puga and Sheridan K. Weissenborn, Coral Gables; and Frances F. Guasch and Luis E. Ordonez, Miami, for appellants.

Pivnik & Nitsche and Jerome A. Pivnik, Miami, for appellee.

Before GREEN, WELLS, and ROTHENBERG, JJ.

Rehearing and Rehearing En Banc Denied August 17, 2005.

ROTHENBERG, Judge.

The defendants, Mae Tanner and Norma A. Atima, appeal from an order granting a new trial in favor of the plaintiff, Victor Beck, by and through Ruth Hagerty, Legal Guardian. We reverse.

The plaintiff filed suit against the defendants claiming that he was injured when he slipped and fell while exiting their mobile home in March 2002. Prior to trial, the plaintiff moved in limine to preclude the introduction of any evidence regarding the plaintiff's 1993 slip and fall lawsuit that he filed in Bradenton, Florida. The trial court ruled that the defendants could introduce evidence of the slip and fall for the limited purpose of establishing the plaintiff's propensity to fall, but ruled that any evidence of the litigation stemming from that accident was inadmissible.

The issue at trial was causation. The plaintiff claimed that he slipped on a cinder block step on the defendants' porch, which he claimed violated the building code. The defendants, however, claimed that the plaintiff either tripped on the sliding glass door threshold while exiting the mobile home or fell because of his own physical infirmities.

The evidence introduced at trial was that the defendants, Mae Tanner and Norma Atima, and the plaintiff, Victor Beck who lived with his mother, Ruth Hagerty, were neighbors residing at the Goldcoast Mobile Home Trailer Park. In March of 2002, Ms. Tanner purchased a hospital bed and another neighbor, George Lermond, offered to help her move the hospital bed into her mobile home. Unbeknownst to Ms. Tanner, Mr. Lermond asked John Dodson and the plaintiff to help him move the bed into Ms. Tanner's home. Prior to asking the plaintiff for help, Mr. Lermond obtained permission from Ms. Hagerty because the plaintiff is physically impaired due to a 1975 motorcycle accident. As a result of the 1975 motorcycle accident, the plaintiff sustained permanent brain injury, lost his left eye, his vision to his right eye is impaired, and he is partially paralyzed on the right side of his body.

After the bed was moved into the mobile home without incident, the plaintiff tripped and fell as he was exiting the mobile home. This exit consisted of a sliding glass door which led out to a flat row of six cinder block steps covered by Astroturf. The plaintiff fell forward onto his right knee, injuring his right leg.

The plaintiff testified at trial that he caught his foot in a gap between the cinder blocks which was concealed by the Astroturf. Three photographs of the threshold/step area were entered into evidence, one of which was taken by Ms. Hagerty. The defense disputed the accuracy of the photograph taken by Ms. Hagerty, which was taken approximately two months after the fall occurred and without the permission of the defendants. The accuracy of these photographs was hotly disputed.

The plaintiff's trial testimony was impeached several times. It was impeached by his prior sworn testimony and the testimony of three witnesses. When the plaintiff was deposed prior to trial, he stated that he did not know what had caused him to fall. He stated that he did not know whether he had caught his foot on the metal threshold of the sliding glass door or whether he had tripped on the metal threshold or whether he simply "stumbled over it." When asked if he had lost his balance when he stepped onto the cinder block steps, he replied "no."

His testimony was also impeached by the other two neighbors who carried the bed into Ms. Tanner's mobile home, George Lermond and John Dodson. Both Mr. Lermond and Mr. Dodson were exiting the trailer with the plaintiff, and actually witnessed the fall. Mr. Lermond, who exited safely just prior to the plaintiff, saw the plaintiff "flying" past him. When Mr. Lermond asked the plaintiff what had happened, the plaintiff responded that he "tripped on the door." Mr. Dodson testified that all three of them had entered the same way they exited, and that the plaintiff had no difficulty when entering the home. Mr. Dodson's testimony reflects that he was behind the plaintiff as they left the mobile home and observed the plaintiff as he "kind of drug it [his foot] across the threshold of the sliding glass door, causing him to trip, and he fell forward and landed on his knee." Mr. Dodson explained that it looked like the plaintiff's sandal got caught on the runner of the sliding glass door, which caused him to trip and pitch forward:

[Defense Counsel]: Is there any question in your mind, but that Victor's fall was caused by his sandal getting caught in the runner for the sliding glass door?

[Mr. Dodson]: None, whatsoever.

Dr. Kreitman, who examined the plaintiff on December 5, 2002, also testified. His testimony reflects that Ms. Hagerty told him that her son did not know what had caused him to fall but he did fall injuring his right leg. Dr. Kreitman stated that the plaintiff was also unclear as to what had caused his fall.

The plaintiff's trial testimony was inconsistent with his deposition testimony, the history he provided to Dr. Kreitman, and the testimony of the two eye witnesses to the fall. The plaintiff, however, attempted to bolster his testimony with the introduction of a photograph taken by his mother approximately two months subsequent to the fall. As stated earlier, the defendants disputed the accuracy of this photograph. The plaintiff testified that the photographs he introduced, one of which was taken by his mother, accurately depicted the doorway and steps where he tripped. However, when cross-examined by defense counsel, the plaintiff changed his testimony and stated that the steps pictured in plaintiffs exhibits #1 and #3 did not depict how the steps looked on the day he fell. He claimed that they were spaced differently, and at first, he even testified that on the day in question, there was no Astroturf carpet covering the cinder blocks. He then contradicted himself testifying that there was carpeting, but that "it was all ripped up."

Mr. Dodson testified unequivocally that as long as he has known Ms. Tanner, there has been carpeting covering the row of cinder blocks used to shorten the step down from the threshold to the patio. To his knowledge, no one had ever had any difficulty navigating the steps in the past and he had never seen them lined up unevenly or with spaces between them.

Ms. Hagerty testified that, while she took the photograph when Ms. Tanner was not home, she did not alter the scene and that she took the photograph through her screened-in porch. The photograph taken by Ms. Hagerty that was introduced into evidence contradicted her testimony as no evidence of screening was present in the photograph. More importantly, however, was Ms. Hagerty's admission that she had taken the photograph approximately two months after the accident and had no idea what the steps looked like on the day of her son's fall.

The defense additionally introduced substantial evidence from which the jury could have concluded that the plaintiff's fall was as a result of his own infirmities. It was established without dispute that the plaintiff was involved in a motorcycle accident in 1975 and since that accident, has been under the care of Ms. Hagerty, who, in fact, has power of attorney over his affairs and is his legal guardian. As a result of this accident, the plaintiff lost his left eye, his vision in the right eye is impaired, he is partially paralyzed on the right side of his body, and he has permanent brain damage. While the plaintiff claimed that he recovered after five years of rehabilitation, he fell in 1993 and broke his knee in Bradenton while attempting to maneuver on a ramp for the disabled.

Additionally, the undisputed evidence introduced at trial established that between 1994 and the plaintiff's fall at the defendants' home in 2002, the plaintiff was seen by several doctors regarding the "increased incidents of falling and dropping things from his hands." For example, Dr. Trainer, a neurologist, saw him in August 1994, for an evaluation, as did Dr. Weiss, a vascular surgeon, in 1998. In 2001, his mother took him to see another neurologist, Dr. Raicher, due to his unsteadiness and loss of balance. This visit was within one year preceding the plaintiff's fall at the defendants' mobile home. A record from Mariner's Hospital reflects that the plaintiff fell off of a ladder and was treated for a laceration. Also, in 2000, when the plaintiff applied for social security benefits, Ms. Hagerty filled out a form wherein she stated that she prepares his meals for him because his gait is unsteady at times, his hands sometimes have tremors, that he only has the use of one eye with no peripheral vision, and that sometimes he does not see people or objects.

During closing argument, the defense argued that: (1) the plaintiff tripped on the metal threshold of the sliding glass door, not on the cinder blocks step; (2) the plaintiff fell due to his own infirmities; (3) the plaintiff was not a credible witness as his trial testimony conflicted with his own deposition testimony, the testimony of two eye witnesses with no motive to lie, and with the testimony of a physician whom he spoke to several months after the injury; and (4) the photographs introduced by the plaintiff were not relevant nor reliable as they were taken some time after the incident in question, under suspicious circumstances, and where the...