DANIEL T. DANNA, APPELLANT,
v.
BAY STEEL CORPORATION AND FLORIDA ERECTION SERVICE, INC., APPELLEES
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A construction worker was impaled on exposed steel reinforcement rods and sued the steel supplier and erector service. The trial court granted summary judgment for both defendants, but the appellate court reversed, holding that discovery must be completed and that custom and usage in the industry cannot conclusively establish the standard of care as a matter of law.
Summary judgment was premature as to the steel supplier because the plaintiff was entitled to complete discovery through the noticed deposition before summary disposition of the case. As to the erector service, summary judgment was improper because questions of custom and usage in the trade are typically matters for jury determination rather than summary judgment, and industry custom does not conclusively establish the standard of reasonable care.
[1] A defendant corporation cannot avoid a pertinent deposition of one of its officers by substituting self-serving affidavits.
[2] Where a deposition is appropriately noticed and no protective order is sought or obtained, a party is entitled to that discovery before his lawsuit is summarily disposed…
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Join FLexlaw to unlock all legal intelligence“a defendant corporation cannot avoid a pertinent deposition of one of its officers by substituting self-serving affidavits”
Establishes that defendants cannot use affidavits to circumvent discovery obligations when a deposition is properly noticed.
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Join FLexlaw to unlock all legal intelligenceA steel supplier sub-subcontracted the erection of steel reinforcement rods to an erector service. The rods were allegedly installed with exposed vert…
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LETTS, Judge.
A subcontracting steel supplier to a construction job sub-subcontracted out the actual erection of steel reinforcement rods to an erector service, which latter allegedly implanted the rods negligently so that the vertical points were exposed. As a result, a construction worker who fell from the fourth floor was impaled on the points. The trial judge granted summary judgment in favor of both the steel supplier and the erector service. We reverse.
As to the Steel Supplier
The plaintiff noticed the taking of the deposition of the steel supplier’s corporate president and attempted to take it four times prior to the hearing on the motion for summary judgment. Each time he was thwarted by evasive tactics. On the fourth and final occasion, for example, the president simply failed to show. The steel supplier insists this recalcitrance was not prejudicial because there were affidavits on file by its president, and others, establishing (1) no obligation whatever at the site (2) the subcontracting erector service had completed its task, left it in complete conformity with the standard practices of the industry, and nothing remained to be done except by the plaintiffs employer, the general contractor. Maybe so, but a defendant corporation cannot avoid a pertinent deposition of one of its officers by substituting self-serving affidavits. Where a deposition is appropriately noticed and no protective order is either sought or obtained, the plaintiff is entitled to that discovery before his law suit is summarily disposed of. This is not to say that a summary judgment as to the steel supplier may not still be appropriate if the fruits of the deposition produce no more facts and issues than are now on file. However, before that discovery takes place, summary judgment is premature under the facts of this case.
As to the Erector Service
The sub-subcontracting erector service bases its entitlement to summary judgment on there being no duty owed, it having complied with the custom and usage of the industry. The plaintiff argues that the pointed ends of the rods should have been sheathed by some protective device, while the defendants point out in their affidavits that such protection is never furnished for steel reinforcing rods under the custom and usage in the trade. However, “the responsibility for deciding facts presented as to such custom or trade usage is normally one to be submitted to a jury rather than to be determined by a court in summary proceedings_” Fred S. Conrad Construction v. Exchange Bank, 178 So. 2d 217, 221 (Fla. 1st DCA 1965). See also Homan v. County of Dade, 248 So. 2d 235, 237 (Fla. 3d DCA 1971). As our Supreme Court has remarked, evidence of the general custom of others is not conclusive: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.” Sea Board Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716, 718 (1927).
Accordingly, we reverse the trial court’s ruling and remand for proceedings in accordance herewith.
We find the remaining points on appeal to be without merit.
REVERSED AND REMANDED.
DOWNEY and HERSEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Theresa Singer Ad Litem for Ann Doe v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)…days prior to the hearing, in its memorandum in opposition to the motion for summary judgment, appellants advised the court that discovery was still in progress, as depositions had not yet been taken. The trial court cited Danna v. Bay Steel Corp., 445 So. 2d 704 (Fla. 4th DCA 1984), to support its ruling. In that case, the plaintiff had noticed the taking of a deposition of a witness and had attempted to take it four times prior to the hearing on the motion for summary judgment, but had been thwarted by eva…
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Lorraine M. Greenleaf and her Husband v. Amerada Hess Corp., 626 So. 2d 263 (Fla. 4th DCA 1993)…rd before us, there appears to be support for appellants’ position.1 The general rule is that courts will be reluctant to grant a motion for summary judgment before the parties have had an opportunity to complete discovery. Danna v. Bay Steel Corp., 445 So. 2d 704 (Fla. 4th DCA 1984); Spradley v. Stick, 622 So. 2d 610 (Fla. 1st DCA 1993); Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA 1981); Cullen v. Big Daddy’s Lounges, Inc., 364 So. 2d 839 (Fla. 3d DCA 1978); Commercial Bank of Kendall v. Heiman, 322 So. 2d…
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A & B Pipe & Supply Co. v. Turnberry Towers Corp. & Turnberry Corp., 500 So. 2d 261 (Fla. 3d DCA 1986)…78), we relied upon Commercial Bank in reversing summary judgment for defendant, entered pri- or to plaintiffs’ completion of their discovery and where the court had not yet ruled upon plaintiffs’ motion to compel. See also Danna v. Bay Steel Corp., 445 So. 2d 704 (Fla. 4th DCA 1984); Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA 1981); Lovelace v. Sobrino, 280 So. 2d 514 (Fla. 3d DCA 1973). The record in the instant case similarly discloses that the judgment appealed from was entered prematurely. We therefo…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seaboard Air Line Ry. Co. v. Gertrude M. Watson, 94 Fla. 571 (Fla. 1927)
- Homan v. Cnty. OF Dade, 248 So. 2d 235 (Fla. 3d DCA 1971)
- Fred S. Conard Constr. Co. v. Exch. Bank of St. Augustine, 178 So. 2d 217 (Fla. 1st DCA 1965)