Townsend v. Conshor, Inc., 2D01-4787.
| Decision Date | 08 November 2002 |
| Docket Number | No. 2D01-4787.,2D01-4787. |
| Citation | 832 So.2d 166 |
| Parties | Tyrone TOWNSEND, Appellant, v. CONSHOR, INC., a Florida corporation; and Boran Craig Barber Engel Construction Co., Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Mark C. Menser of Viles Law Firm, P.A., Fort Myers, for Appellant.
No appearance on behalf of Appellee Conshor, Inc.
Brian S. Duffy and Brandice D. Dickson of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellee Boran Craig Barber Engel Construction Co.
Tyrone Townsend appeals a final summary judgment entered in favor of his employer, Boren Craig Barber Engle Construction Company, Inc. (BCBE). Mr. Townsend sued his employer alleging that he sustained a job-related injury on May 5, 1998, when he fell from the second story of a building that was under construction. He claims that he fell because of a defective wooden safety railing that had been installed by Conshor, Inc. We affirm the trial court's judgment on all issues except for the count for spoliation.
Mr. Townsend sued BCBE, alleging that BCBE was his employer and that he had been injured on the job when the wooden railing gave way. At the same time, he sued Conshor, Inc., as the manufacturer and installer of the railing. He attempted to allege theories of simple negligence, strict liability, breach of warranty, and breach of implied warranty. Mr. Townsend never alleged that BCBE committed any act that would overcome workers' compensation immunity. See Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000)
(). Of equal importance, it was undisputed that Mr. Townsend filed a workers' compensation claim again BCBE. While represented by counsel, he formally settled that claim in his workers' compensation proceeding and executed a general release. Mr. Townsend's claim for bodily injury against BCBE is barred by the doctrine of election of remedies. See Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1981) ().
In addition to these theories, Mr. Townsend sued BCBE for spoliation or negligent destruction of evidence. Mr. Townsend claims that BCBE destroyed or discarded the damaged wooden railing, making it difficult or impossible to prove his claim against Conshor, Inc.
Spoliation is a recognized cause of action in Florida. See Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001)
. It is a claim that can be brought by an employee against an employer. See Lincoln Ins. Co. v. Home Emergency Servs.,...
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