JAMES RHODES AND SHERIE RHODES, HIS WIFE, APPELLANTS,
v.
ASPLUNDH TREE EXPERT COMPANY, A CORPORATION, AND AETNA CASUALTY & INSURANCE COMPANY, APPELLEES
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James Rhodes was injured when a cherry picker boom manufactured by Asplundh fractured and he fell. Rhodes sued for negligence and strict liability based on inadequate warnings about fiberglass deterioration from sunlight exposure. The trial court entered judgment for Asplundh, and the appellate court affirmed, finding no reversible error in the trial court's evidentiary rulings or other contentions.
The trial court properly excluded the rebuttal expert testimony as cumulative and the appellate court affirmed the judgment for Asplundh. Rhodes' remaining issues on appeal were found to be without merit.
[1] A manufacturer may be liable for negligence in failing to warn of product deterioration due to environmental factors.
[2] A manufacturer may be strictly liable for placing a product on the market without providing adequate warnings.
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Join FLexlaw to unlock all legal intelligence“inspect fiberglass upper boom, insert, basket and basket liners for possible damage or contamination .. [and] .. perform weekly and monthly maintenance as described in the service manual”
The warning language on the placard affixed to the cherrypicker, establishing that Asplundh did provide maintenance warnings
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Join FLexlaw to unlock all legal intelligenceJames Rhodes sustained injuries when the boom of a cherry picker extended from a bucket fractured, causing him to fall. The boom had been manufactured…
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PER CURIAM.
James and Sherie Rhodes appeal from a final judgment and a cost judgment in favor of Asplundh Tree Expert Company [As-plundh] and its surety. James Rhodes sustained injuries while working from the bucket of a cherrypicker’s extended boom. The boom fractured and Rhodes fell to the ground.
The boom was manufactured by As-plundh. It had belonged to several previous owners before Rhodes’ employer purchased it. The gravamen of his complaint is that Asplundh was negligent in failing to warn that reinforced fiberglass products deteriorate when exposed to sunlight. He asserted that the placard attached to the boom should have specified maintenance requirements. He also alleged that As-plundh was strictly liable for placing the product on the market without providing adequate warnings.
Asplundh responded with allegations of comparative negligence. It cited unauthorized alteration of the product resulting in abnormal and unintended use as an intervening cause of the product’s failure and contended it exercised due care in manufacturing the product.
At trial, testimony disclosed that the placard affixed to the cherrypicker included operating and maintenance instructions. It cautioned: “inspect fiberglass upper boom, insert, basket and basket liners for possible damage or contamination .. [and] .. perform weekly and monthly maintenance as described in the service manual.” Rhodes’ employer admitted that he did not perform the maintenance procedures described in the operating manual; he merely washed the machine. He stated that he did not have a manual and that manufacturers should know that small companies don’t bother to read manuals.
Rhodes called, as an adverse witness, defense expert witness Patton, who testified as to the necessity for preventive maintenance to deter deterioration caused by ultraviolet sun rays. At that time, Rhodes chose not to elicit the expert’s theory as to the cause of the boom’s fracture. Patton did offer his theories on the subject when called by the defense, however, and suggested overloading as a possible cause. Rhodes complains that he was denied the opportunity to recall his expert to present rebuttal testimony on this point. We reject his contention. See Curtiss Nat’l Bank of Miami Springs v. Street, 233 So. 2d 453 (Fla. 3d DCA 1970). Rhodes had presented an expert witness who discounted overloading as the proximate cause of the accident. Thus, the trial court committed no reversible error in excluding rebuttal evidence which would have been cumulative in nature, Laurent v. Uniroyal, Inc., 515 So. 2d 1050 (Fla. 3d DCA 1987), review denied, 525 So. 2d 879 (Fla.1988), and, in any event, could have been submitted during the plaintiff’s case-in-chief.
Appellants’ remaining issue has been considered and found to be without merit.
Affirmed.
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Young-Chin v. City OF Homestead, 597 So. 2d 879 (Fla. 3d DCA 1992)…982), limiting rebuttal which goes to the heart of the principal defense and which is not cumulative of evidence presented in plaintiff’s ease in chief is an abuse of discretion. Heberling. Defendant’s reliance on Rhodes v. Asplundh Tree Expert Co., 528 So. 2d 459 (Fla.3d DCA 1988), is misplaced. In Rhodes, plaintiff was precluded from presenting rebuttal evidence bolstering his theory of the case. The Rhodes court correctly concluded that this evidence should have been submitted during the plaintiff’s case i…
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Zanoletti v. Norle Props., 688 So. 2d 952 (Fla. 3d DCA 1997)…g, as in this ease, the defendants knew well in advance what the defense posture would be, but the court held that a plaintiff need not open the door to an anticipated defense. The case relied upon for affirmance, Rhodes v. Asplundh Tree Expert Co., 528 So. 2d 459 (Fla. 3d DCA 1988), is distinguishable. In that case the plaintiff sought to call a second expert witness on rebuttal when he had already presented an expert who testified to the same theory in his ease in chief. Id. at 460. Under those circumstance…
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Heberling v. Joel Fleisher, M.D., 563 So. 2d 1086 (Fla. 4th DCA 1990)…ent evidence that the brain injury was not the cause of death. See Ahearn v. Florida Power and Light Company, 113 So. 2d 751 (Fla. 2d DCA 1959), quashed on other grounds, 118 So. 2d 21 (Fla.1960). We have reviewed Rhodes v. Asplundh Tree Expert Co., 528 So. 2d 459 (Fla. 3d DCA 1988), and agree that in Rhodes the rebuttal may well have been cumulative. The rebuttal sub judice was not cumulative, since no evidence of its subject matter had been offered by the plaintiff prior to the presentation by the defense o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Laurent v. Uniroyal, Inc., 515 So. 2d 1050 (Fla. 3d DCA 1987)
- McDERMOTT v. McCLAIN, 233 So. 2d 453 (Fla. 3d DCA 1970)