SCHINDLER ELEVATOR CORPORATION, APPELLANT,
v.
DIGNA VIERA, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ISMAEL VIERA, DECEASED, APPELLEE
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Schindler Elevator Corporation appealed a negligence judgment in a wrongful death case, challenging the trial court's refusal to allow the jury to apportion liability to a settling co-defendant (Dade County). The Florida appellate court reversed and remanded because Fabre v. Marin requires juries to apportion liability among all persons responsible for an accident, regardless of settlement status.
The trial court erred in denying the jury the opportunity to apportion liability among all persons responsible for the accident, including the settling defendant. Under Fabre v. Marin and section 768.81(3), Florida Statutes, the jury must compare each party's percentage of fault relative to all entities who contributed to the accident, regardless of settlement status.
[1] A jury must be given the opportunity to apportion liability among all persons responsible for an accident, including settling co-defendants.
[2] The failure to allow a jury to apportion liability among all responsible parties constitutes reversible error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the only means of determining a party's percentage of fault is to compare that party's percentage [of fault] to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.”
Establishes the core holding that settling defendants must be included in liability apportionment to properly calculate comparative fault percentages
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Join FLexlaw to unlock all legal intelligenceIsmael Viera fell to his death in an elevator shaft while attempting to escape a stuck elevator. His widow sued Dade County (elevator owner) and Schin…
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PER CURIAM.
Appellant, Schindler Elevator Corporation (Schindler), appeals an adverse final judgment in this negligence action brought on behalf of Ismael Viera, the deceased. We reverse and remand for a new trial on liability because the trial court erred in denying Schindler’s request to have the jury apportion the respective liability of a settling co-defendant pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla.1993).
The deceased fell to his death in an elevator shaft while attempting to escape from an elevator that was stuck between floors. His wife, appellee Digna Viera (Viera), as personal representative of the estate, sued Dade County as the owner of the elevator, and Schindler as the company responsible for the elevator’s maintenance. Viera claimed that Schindler was negligent in failing to properly service the elevator, and further alleged that the county was negligent in failing to follow proper safety precautions. Prior to trial, the county settled with Viera individually for $100,000, and also settled with the estate for $100,000.
At the conclusion of the evidence, Schindler requested that the county be listed on the verdict form for apportioning liability. The trial court denied the request, and the jury only considered the liability of Schindler and the deceased. The jury entered a total award in favor of Viera for $600,000, finding Schindler to be 75% at fault, and the deceased to be 25% at fault. After reducing the award by the percentage of the deceased’s comparative negligence, and setting-off the $100,000 settlement which Viera had received from the county, the trial court entered final judgment against Schindler for $350,000.
We agree with Schindler that reversal is required under Fabre v. Marin, 623 So. 2d at 1182. The Florida supreme court in Fabre held that section 768.81(3), Florida Statutes (1989), requires that the jury be given the opportunity to apportion liability among all persons responsible for an accident. The supreme court recognized that “the only means of determining a party’s percentage of fault is to compare that party’s percentage [of fault] to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.” Fabre v. Marin, 623 So. 2d at 1185.
Accordingly, we remand for a new trial because the trial court erred in failing to instruct the jury to apportion the liability of the settling defendant, Dade County. See Fabre v. Marin, 623 So. 2d at 1182; A.W. Chesterton v. Fisher, Nos. 93-2346, 93-2400 & 94-15, — So. 2d - (Fla. 3d DCA Oct. 5, 1994); East West Karate Ass’n, Inc. v. Riquelme, 638 So. 2d 604 (Fla. 4th DCA 1994).
On remand, the trial court is instructed not to consider the issue of damages, and to confine the issues on retrial to a determination of the negligence, comparative negligence and the apportionment of fault, if any, as to Dade County, Schindler, and the deceased. See Schindler Corp. v. Ross, 625 So. 2d 94 (Fla. 3d DCA 1993); American Aerial Lift, Inc. v. Perez, 629 So. 2d 169 (Fla. 3d DCA 1993), review granted, 637 So. 2d 233 (Fla.1994).
Reversed and remanded with instructions.
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Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262 (Fla. 1996)…GRIMES, Justice. We review Wells Fargo Guard Services, Inc. v. Nash, 654 So. 2d 155 (Fla. 1st DCA 1995), which directly and expressly conflicts with Schindler Elevator Corp. v. Viera, 644 So. 2d 563, 564 (Fla. 3d DCA 1994); American Aerial Lift, Inc. v. Perez, 629 So. 2d 169, 172 (Fla. 3d DCA 1993), review denied, 659 So. 2d 1085 (Fla.1995); and Schindler Corp. v. Ross, 625 So. 2d 94, 96 (Fla. 3d DCA 1993). We have jurisdiction under article V,…
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Loureiro v. Pools BY Greg, Inc., 698 So. 2d 1262 (Fla. 4th DCA 1997)…8 So. 2d at 1263-64. The precise holding of Nash did not deal with the nature of the retrial on liability. To arrive at its ruling in Nash, the supreme court expressly approved three cases from the third district, Schindler Elevator Corp. v. Viera, 644 So. 2d 563 (Fla. 3d DCA 1994), American Aerial Lift, Inc. v. Perez, 629 So. 2d 169 (Fla. 3d DCA 1993), review denied, 659 So. 2d 1085 (Fla.1995), and Schindler Corp. v. Ross, 625 So. 2d 94 (Fla. 3d DCA 1993). These three cases all involved defendants found neg…
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Schindler Elevator Corp. v. Digna Viera, 693 So. 2d 1106 (Fla. 3d DCA 1997)…hich had stopped between floors. He fell to his death in the elevator shaft. The Personal Representative filed a wrongful death action which proceeded to trial against Schindler as the elevator maintenance company. Schindler Elevator Corp. v. Viera, 644 So. 2d 563, 564 (Fla. 3d DCA 1994) (Viera I). Following the then existing law in this district, the trial court refused Schindler’s request to list the elevator owner, Dade County, on the verdict form for purposes of apportioning liability for noneconomic dam…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)
- Am. Aerial Lift, Inc. v. Perez, 629 So. 2d 169 (Fla. 3d DCA 1993)
- E. W. Karate Ass'n, Inc. v. Riquelme, 638 So. 2d 604 (Fla. 4th DCA 1994)
- Schindler Corp. v. Timm Ross, 625 So. 2d 94 (Fla. 3d DCA 1993)