Tricam Indus., Inc. v. Coba

• Decision Date: 19 November 2012
• Docket Number: No. 3D11–50.,3D11–50.
• Citation: 100 So.3d 105
• Court: Florida District Court of Appeals
• Parties: TRICAM INDUSTRIES, INC., et al., Appellants/Cross–Appellees, v. Diana COBA, etc., Appellee/Cross–Appellant.

100 So.3d 105

TRICAM INDUSTRIES, INC., et al., Appellants/Cross–Appellees,

v.Diana COBA, etc., Appellee/Cross–Appellant.

No. 3D11–50.

District Court of Appeal of Florida, Third District.

Aug. 29, 2012.

Rehearing Denied Nov. 19, 2012.

Lewis, Brisbois, Bisgaard & Smith, LLP, and Jeffrey A. Mowers and Cindy J. Mishcon, Fort Lauderdale, for appellants/cross-appellees.

Wasson & Associates, Chartered, and Roy D. Wasson and Annabel C. Majewski, Miami; DeMahey, Labrador, Drake, Victor, Payne & Cabeza, P.A., and Orlando Cabeza, Coral Gables, for Appellee/cross-appellant.

Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

Tricam Industries, Inc. (“Tricam”) and Home Depot, etc., (collectively, “the defendants”) appeal from a final judgment entered pursuant to a jury verdict in favor of Diana Coba (“the plaintiff”), as personal representative of the estate of Roberto Coba (“the decedent”), and denial of their motion to set aside the verdict. The plaintiff cross-appeals from a denial of her motion for a new trial. Because the verdict was fundamentally inconsistent, we reverse the trial court's denial of the defendants' motion to set aside the verdict, and remand for entry of judgment in favor of the defendants. In addition, because we find the trial court did not abuse its discretion in concluding that the plaintiff failed to satisfy her burden of establishing that a new trial was warranted based on juror non-disclosure, we affirm the trial court's denial of the plaintiff's motion for a new trial.

The decedent, a civil engineer, fell from a thirteen foot Gorilla Professional Type 1A 4–in–1 aluminum ladder (“the ladder”) manufactured by Tricam and sold by Home Depot, and died ten days later. In her complaint against the defendants, the plaintiff alleged theories of: (1) strict liability for manufacturing and design defects; and (2) negligence for failing to manufacture, design, market, sell and distribute the ladder in a reasonably safe condition, and failing to warn of the ladder's dangerous conditions. At trial, however, the evidence presented and arguments made by the plaintiff went solely to the ladder's design.

Specifically, the plaintiff's expert, Dr. Farhad Booeshaghi, a consulting engineer and accident reconstructionist, testified that the ladder was defectively designed because it was capable of falsely appearing to be in a locked position since the pins in the “J locks,” which attached to the ladder's outer rails, “click[ed]” as if they were locked even when they were not. He explained that when that occurred, the ladder was capable of temporarily holding a person's weight, giving the user a false sense of security. Dr. Booeshaghi opined that at the time of the accident, the ladder was in such a “false lock” position, and the false-lock-failure, combined with the decedent's weight, caused the ladder to “telescope” ¹ at full extension, impelling the ladder forward and launching the decedent backward. He also opined that the inclusion of an additional crossbar would have increased the structural rigidity of the ladder and prevented the ladder from telescoping. Lastly, he testified that the accident would not have occurred had the locks been properly locked, and that it was ultimately the decedent's responsibility to properly lock the ladder.

Conversely, the defendants' expert, Mr. Jon Ver Halen, a consulting engineer, testified that the ladder was not defectively designed. He opined that it was impossible for a “false lock” to occur on an articulating ladder, and explained that, given the “factor of safety” built into the ladder's “load factor,” it could not have structurally failed when used in its intended manner. In addition, Mr. Ver Halen explained that, based on the ladder's length and likely position against the house, and the location and types of marks and deformations left on the wall, floor, and ladder, the accident could not have been caused by the telescoping process described by Dr. Booeshaghi. Instead, according to Mr. Ver Halen, the physical evidence suggested that the ladder was set up on a “relatively slippery” surface, enabling the ladder to slide as the decedent climbed it, and ultimately giving way, causing the decedent to fall.

After the plaintiff rested her case, the defendants moved for a directed verdict, noting that neither Dr. Booeshaghi nor any other witness testified regarding any flaw in the manufacturing process, the warnings that were provided, or the sale or distribution of the ladder, and that the warnings on the ladder were not introduced into evidence. The trial court denied the motion. However, prior to closing arguments, the plaintiff expressly withdrew her manufacturing defect claim and, given the lack of evidence on the remaining allegations, the trial court limited the (1) strict liability jury instructions to the standard for finding a design defect, and (2) the negligence instructions to the standard for finding negligence in the “design, distribution, and sale” of the ladder. The jury was not instructed on either manufacturing defect or warning defect standards, and trial counsel for the plaintiff and the defendants neither argued nor sought a finding regarding a failure to warn.

The jury returned a verdict finding that there was no design defect, but that the negligence of Tricam and Home Depot was a legal cause of the decedent's death, and awarded the decedent's daughter $25,000 for lost past support and services; $45,000 for her future lost support and services; and $1.5 million for intangible damages; and apportioned eighty percent comparative negligence to the decedent. The verdictform was crafted and filled out as follows:

VERDICT FORM

We, the jury, return the following verdict:

1. Did Defendants, Tricam Industries and/or Home Depot, place the ladder on the market with a design defect, which was a legal cause of Roberto Coba's death?

YES ________ NO X

2. Was there negligence on the part of Defendants, Tricam Industries and/or Home Depot, which was a legal cause of Roberto Coba's death?

YES X NO ________

After the verdict was read, neither the plaintiff nor the defendants objected to the verdict. However, after the jury was discharged, counsel for the plaintiff conducted an investigation of the jurors; discovered that several jurors had failed to disclose their litigation history; and thereafter filed motions to interview jurors and for a new trial. Additionally, the defendants filed a motion to set aside the verdict and to enter judgment in accordance with their motion for a directed verdict. The trial court granted the plaintiff's motion to interview the jurors, and noticed a hearing on the remaining issues.

At the hearing, the plaintiff argued a new trial was required based on juror Willy Gamboa's failure to disclose his litigation history, which included a divorce, three foreclosures, and two collection actions. The plaintiff's trial counsel represented that if he would have known about juror Gamboa's litigation history, he would have peremptorily struck him.

Conversely, the defendants argued that the verdict should be set aside because the jury's finding of negligence was fundamentally inconsistent with its finding that there was no design defect. Specifically, the defendants argued that there was insufficient evidence to sustain a verdict of negligence given that all of the plaintiff's evidence at trial related to the ladder's purported defective design, and the jury found that the ladder did not have a design defect. The trial court denied the plaintiff's motion for a new trial and the defendants' motion to set aside the verdict and enter judgment in accordance with their motion for a directed verdict. These appeals followed.

The trial court erred in denying the defendants' motion to set aside the verdict in accordance with the defendants' motion for a directed verdict.

On appeal, the defendants argue that the jury's finding of negligence was fundamentally inconsistent with its finding that there was no design defect because there was insufficient evidence presented to sustain a verdict of negligence with respect to anything other than a design defect. Thus, the defendants argue the trial court erred in denying the defendants' motion to set aside the verdict in accordance with their motion for a directed verdict. We agree.

“In reviewing a trial court's denial of a motion for a directed verdict, an appellate court must review the evidence in the light most favorable to the nonmoving party.” Miami–Dade Cnty. v. Asad, 78 So.3d 660, 663–64 (Fla. 3d DCA 2012). A denial of a motion for a directed verdict must be reversed “if there is ‘no evidence upon which the jury could legally base a verdict’ in favor of the non-moving party.” Id. at 664 (quoting Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006)).

The plaintiff concedes that the verdict in this case was inconsistent, but argues that the defendants waived their objection to the inconsistency by failing to object before the jury was discharged. Normally, we would agree. The Fourth and Fifth District Courts of Appeal, however, have carved out an exception to this general rule where the inconsistency “is of a fundamental nature.” See Nissan Motor Co. v. Alvarez, 891 So.2d 4, 8 (Fla. 4th DCA 2004); Am. Catamaran Racing Ass'n (NACRA) v. McCollister, 480 So.2d 669, 671 (Fla. 5th DCA 1985). Because we agree with the well-reasoned opinions of our sister courts to the north, and because there is no case in this district which has held to the contrary,² we adopt the “fundamental nature” exception as applied in this context.

Because NACRA and Alvarez are similar to the facts in the instant case, and because we agree with and adopt the holdings in each, we briefly examine them herein. The plaintiff in NACRA brought a wrongful death action against NACRA, which manufactured a catamaran that capsized and resulted in the death of Christine Wapniarski. At trial, the plaintiff...