LARRY SIMMONS, APPELLANT,
v.
MILTON ROORDA D/B/A REGAL BUILDERS, APPELLEE
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A construction worker injured in a fall sued a truss installer for negligent installation and handling. The Florida District Court of Appeal affirmed the trial court's evidentiary rulings on some issues but reversed due to the trial court's failure to instruct the jury on the duty owed between contractors at a construction site and its erroneous exclusion of a photograph showing a cracked truss.
The trial court properly admitted the testimony regarding the company's routine practices and work achievements, but erred in failing to instruct the jury on the duty owed between contractors at a construction site and in excluding the photograph of the cracked truss as probative evidence of negligent inspection.
[1] A trial court may permit a former employee to testify regarding the routine practices of an organization based on personal knowledge.
[2] A party may open the door to otherwise inadmissible testimony by commenting on the opposing party's performance during an opening statement.
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Join FLexlaw to unlock all legal intelligence“The trial court must fully and fairly instruct the jury on the issues in a case. Where a theory of the case is supported by competent evidence a party is entitled to an instruction on that theory when it is properly requested.”
Establishes the appellate court's standard for reviewing jury instructions and the requirement that courts instruct on supported theories of liability.
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Join FLexlaw to unlock all legal intelligenceOn April 20, 1989, Larry Simmons was injured when a wood roofing truss on which he was walking at a construction site broke, causing him to fall ten f…
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BLUE, Judge.
On April 20, 1989, Appellant was injured in an accident at a construction site. He was wiring in the attic space of a home under construction when a wood roofing truss on which he was walking broke, causing him to fall ten feet to a concrete floor. Appellant brought suit against Appellee, the truss installer, for negligent installation, inspection and handling of the trusses. The jury found that Appellee was not liable. Appellant raises four issues, only two of which have merit.
We affirm the trial court’s decision permitting a former employee of Regal Builders to testify as to his personal knowledge of the routine practices of the organization. § 90.406, Fla.Stat. (1987). We also agree with the trial court's decision to allow the testimony of the construction site superintendent concerning the work achievements of Appellee. Appellant opened the door to this testimony during his opening statement, when he commented upon Appellee’s poor work performance.
Appellant argues that the trial court erred in failing to instruct the jury concerning the duty owed between contractors when working together at a construction site. We agree. The following jury instruction was submitted during trial:
The court instructs you as a matter of law that where two or more independent contractors are working in or about a building and any one of them is doing work pursuant to his contract that he knows or should know to be dangerous to the employees of the other contractors lawfully engaged in other work in or about the building and which they are under obligation to perform, the contractor engaged in such dangerous work should use due care to perform in such a manner as not to endanger persons in the employ of the other contractors so lawfully engaged in such work. Woodcock v. Wilcox, 98 Fla. 14, 122 So. 789 (1929).
The trial court must fully and fairly instruct the jury on the issues in a case. Where a theory of the case is supported by competent evidence a party is entitled to an instruction on that theory when it is properly requested. Luster v. Moore, 78 So. 2d 87 (Fla.1955); Harnly v. Watson, 519 So. 2d 18 (Fla. 2d DCA 1987), review denied 528 So. 2d 1182 (1988). The jury in the instant case was not given the requested instruction, nor any other instruction with respect to the duty between contractors at a construction site, and did not have guidance in determining whether any duty existed or had been breached.
We also agree with Appellant’s contention that the trial court erred by failing to admit a photograph of another crack discovered after the accident in the same truss system. The trial court permitted a witness to testify that upon inspection of the trusses in the house where Appellant was injured, the witness discovered a truss with a large crack in its side. The photograph depicts the crack about which the witness testified. The witness further testified that this type of crack could only have been caused by severe mishandling at the construction site, and that a reasonable inspection of the trusses would have discovered this defect.
If a photograph is a correct representation of a physical object to which testimony is adduced, it is admissible in evidence for the use of witnesses to explain their testimony and to enable the jury to understand the case. Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 2d DCA 1982). The photograph provided probative evidence of a crack in a truss in the same house and roofing system where Appellant was injured. Therefore, the photograph is relevant to the issue of Appellee’s failure to inspect.
We affirm in part, reverse in part, and remand for a new trial.
LEHAN, A.C.J., and PATTERSON, J., concur.
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W.R. Grace & Co. - Conn. v. Dougherty, 636 So. 2d 746 (Fla. 2d DCA 1994)…al court must fully instruct the jury on the issues in the case, and where the theory of the case is supported by competent evidence, a party is entitled to an instruction on that theory when the instruction is properly requested. Simmons v. Roorda, 601 So. 2d 609, 610 (Fla. 2d DCA 1992). However, the evidence in this case was not sufficient to have permitted the jury to have received instructions and a verdict form pursuant to Fabre. Fabre permits a jury to determine each party’s and each nonparty’s percenta…
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Phillips v. Parkside OF Fountainbleau Condo. Ass'n, Inc., 634 So. 2d 1101 (Fla. 3d DCA 1994)…ew of the record reveals that there was competent evidence supporting Phillips’ theory of the separate duties owed by each defendant. Accordingly, it was error for the trial court to require Phillips to prove joint negligence. See Simmons v. Roorda, 601 So. 2d 609 (Fla. 2d DCA 1992); L.K. v. Water’s Edge Ass’n, 532 So. 2d 1097 (Fla. 3d DCA 1988). Reversed.…
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Popejoy v. Harrison, 615 So. 2d 823 (Fla. 4th DCA 1993)…Sotuyo v. Williams, 587 So. 2d 612 (Fla. 1st DCA 1991); Mathieu v. Schnitzer, 559 So. 2d 1244 (Fla. 4th DCA), rev. dismissed, 570 So. 2d 1306 (Fla.1990); Hammond v. Jim Hinton Oil Co., 530 So. 2d 995 (Fla. 1st DCA 1988); see also Simmons v. Roorda, 601 So. 2d 609 (Fla. 2d DCA 1992); Bradley v. Guy, 438 So. 2d 854 (Fla. 5th DCA 1983). REVERSED AND REMANDED. STONE, J., and WALDEN, JAMES H., Senior Judge, concur. FARMER, J., concurs specially with opinion. . Section 316.130(15), Florida Statutes (1989), pro…
Authorities Cited
- Luster v. Moore, 78 So. 2d 87 (Fla. 1955)
- Woodcock v. Wilcox, 98 Fla. 14 (Fla. 1929)
- Hannewacker v. City OF Jacksonville Beach, 419 So. 2d 308 (Fla. 1982)
- Harnly v. Watson, 519 So. 2d 18 (Fla. 2d DCA 1987)