TIMOTHY DUANE GAYER, APPELLANT,
v.
FINE LINE CONSTRUCTION & ELECTRIC, INC., LABOR FINDERS OF BROWARD COUNTY, INC., LABOR FINDERS INTERNATIONAL, INC., AND L.F.I. SAFETY MANAGEMENT SERVICES, INC., APPELLEES
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Timothy Gayer, a temporary worker who fell from a ladder at a construction site, appealed summary judgment dismissing his spoliation of evidence claim against Labor Finders. The court affirmed, holding that Labor Finders had no duty to preserve evidence (the ladder) it never possessed, though reaffirming that special employers do have such a duty under Florida law.
Labor Finders had no duty under section 440.39(7) to acquire and preserve evidence that was never in its possession. The court affirmed summary judgment in favor of Labor Finders, distinguishing the earlier Fine Line case where the special employer did obtain possession of the ladder.
[1] A special employer using a laborer from a help supply services company has a duty to preserve evidence for the injured laborer's claim against a third-party tortfeasor.
[2] A company that never obtained possession of evidence has no duty to acquire and preserve that evidence.
Previewing 2 of 3 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“a special employer using a laborer from a help supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer's claim against a third-party tortfeasor”
Establishes the general duty of special employers to preserve evidence, though this duty is limited to evidence in their possession
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Join FLexlaw to unlock all legal intelligenceGayer was employed by Labor Finders, a temp agency that leased him to Fine Line Construction. While working on a store renovation, Gayer fell from a l…
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Timothy Duane Gayer appeals from the trial court’s grant of final summary judgment in favor of Labor Finders of Bro-ward County, Inc., Labor Finders International, Inc., and L.F.I. Safety Management Services, Inc.1 Appellees cross-appeal from the trial court’s prior rulings on Gayer’s motions in limine. We affirm on all issues, writing only to briefly address the issue raised by Gayer.
Gayer was employed by Labor Finders of Broward County, Inc., a help supply *297services company that leased temporary workers to construction companies, paid the workers an hourly wage, and provided workers’ compensation benefits. Labor Finders sent Gayer to help Fine Line Construction & Electric, Inc. renovate a store. Gayer fell from the ladder he was using to do his work. He landed on his head and sustained severe injuries that required hospitalization. Neither Fine Line nor Labor Finders was later able to locate the ladder from which Gayer fell.
Gayer eventually brought a spoliation of evidence claim regarding the lost ladder against both Fine Line and the Labor Finders defendants. The trial court granted summary judgment in favor of Fine Line and later granted summary judgment in favor of Labor Finders. This court reversed the final summary judgment in favor of Fine Line, holding that “a special employer using a laborer from a help supply services company has a duty under section 440.39(7), Florida Statutes, to preserve evidence for the injured laborer’s claim against a third-party tortfeasor.” Gayer v. Fine Line Constr. & Elec., Inc., 970 So.2d 424, 425 (Fla. 4th DCA 2007).
As for Labor Finders, it was undisputed that it never obtained possession of the ladder despite multiple attempts to do so. We hold that Labor Finders had no duty under section 440.39(7) to acquire and preserve evidence that was never in its possession. See Barbosa v. Liberty Mut. Ins. Co., 617 So.2d 1129, 1129-30 (Fla. 3d DCA 1993).
We affirm as to all issues raised on cross-appeal.
Affirmed.
TAYLOR, J., and LEVIN, STEVEN J., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Barbosa v. Liberty Mut. Ins. Co., 617 So. 2d 1129 (Fla. 3d DCA 1993)
- Surin v. State, 970 So. 2d 424 (Fla. 3d DCA 2007)