Third District Court of Appeal
State of Florida
Opinion filed January 11, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2119
Lower Tribunal No. 17-3404
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Martex Corporation, et al.,
Appellants,
vs.
Roberto Artiles, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
GrayRobinson, P.A., Jack R. Reiter and Jordan S. Kosches, for
appellants.
Ratzan, Weissman & Boldt and Stuart N. Ratzan; Law Offices of Sean
M. Cleary and Sean M. Cleary; and Joel S. Perwin, P.A. and Joel S. Perwin,
for appellees.
Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.
FERNANDEZ, C.J.
Martex Corporation (“Martex”) and Maintenance Authority Professional
Services, Inc. (“MAPS”) (collectively, “Martex”) appeal the trial court’s order
granting summary judgment in favor of Roberto Artiles (“Artiles”). Upon
review of the record, we reverse the summary judgment order and remand
for a new trial consistent with this opinion.
The underlying case concerns a HVAC technician, Ernesto Artiles
(“decedent”), who was working on a roof in order to access the AC system
when he fell through a skylight and sustained injuries that later resulted in
his death. The accident occurred at a commercial warehouse in Miami
owned by Martex and operated by MAPS. The decedent was an employee
of an independent contractor, RAM Quality Group Corp. (“RAM”), who was
hired by Custom Kolor, the tenant leasing a unit in the warehouse. Roberto
Artiles, the decedent’s father, filed suit against all parties involved, including
Martex and MAPS. The trial court ultimately granted summary judgment in
favor of Artiles, followed by a jury trial that resulted in a twelve-million-dollar
($12,000,000) verdict for Artiles and his wife. The jury apportioned seventy
percent of liability towards Martex and twenty percent of liability towards
MAPS.1
1
Additionally, the jury apportioned the following percentages to the other
parties involved: six percent to FM Roofing, three percent to RAM Quality
2
Appellate courts review a summary judgment order de novo and a trial
court’s admission of evidence for an abuse of discretion. See Fuentes v.
Sandel, Inc.,
189 So. 3d 928, 932 (Fla. 3d DCA 2016); Castaneda ex rel.
Cardona v. Redlands Christian Migrant Ass'n, Inc.,
884 So. 2d 1087, 1090
(Fla. 4th DCA 2004).
There is a long-standing line of cases in construction law that provides
the following rules regarding whether a property owner should be held liable
for an independent contractor’s employee’s injuries:
As a general rule, “a property owner who employs an
independent contractor to perform work on his property will not
be held liable for injuries sustained by the employee of an
independent contractor during the performance of that work.”
Strickland, 66 So. 3d at 1006. There are two exceptions to this
rule. First, a property owner may be held liable for an
independent contractor’s employee’s injuries if the owner
actively participated in the work or exercised direct control over
the work, and failed to exercise that control with reasonable care.
Id.; Armenteros v. Baptist Hosp. of Miami, Inc.,
714 So. 2d 518,
521 (Fla. 3d DCA 1998). The second exception applies where
the property owner fails to warn the contractor about concealed
dangers not inherent in the work of which the owner had actual
or constructive knowledge and which were unknown to the
contractor or could not have been discovered through due care.
Id.
Fuentes,
189 So. 3d 928, 932. The second exception directly applies to this
case.
Group Corp., one percent to Custom Kolor, and zero percent to the
decedent.
3
In Fuentes, because the independent contractor was warned about the
skylights, the property owner did not have a legal duty.
Id. at 935. In the
present case, there is a possibility that Martex knew or should have known
about a concealed danger not inherent in the work, namely whether the
skylights were potentially not up to code based on the undisputed fact that a
prior repair of the roof was done without a permit. Given this possibility, there
was a genuine issue of material fact that prevented the entry of summary
judgement.
Additionally, Martex was denied its right to a fair trial due to a number
of errors that occurred during trial. The first error concerns subsequent
remedial measures, and the second error concerns comments made at
closing.
Counsel for Artiles clearly violated an order granting Martex’s motion
in limine prohibiting Artiles from introducing evidence of the subsequent
remedial measure of Martex building cages around the skylights with the goal
of preventing similar accidents in the future. Despite Artiles’s explanation to
the contrary, the fact is that Artiles’s roofing and building code expert testified
that a cage had been installed prior to his inspection of the roof, which
directly implies that the cage was installed after the accident:
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Q: Does [the photograph] fairly and accurately depict the skylight
in this case that you inspected with your own eyes when you did
your inspection?
A: Well, when we did our inspection there was a cage.
Counsel for Martex objected and moved for a mistrial on side bar. The trial
court overruled the objection and denied the motion post-trial.
In Walt Disney World Co. v. Blalock,
640 So. 2d 1156 (Fla. 5th DCA
1994), counsel for the injured party failed to caution the expert witness of an
in limine order precluding evidence of subsequent remedial measures taken
by Disney after a ten-year-old child’s thumb was amputated on the Pirates
of the Caribbean ride:
In response to questioning concerning ways "to prevent a side-
to-side configuration of those boats" the expert responded:
So the two--the various ways you can do it is, first of
all, eliminate the merge point. Instead of having a
merge point, don't have a merge point. And in fact,
later on....
Id. at 1158. In Blalock, all that was said was “And in fact, later on…”
Id. This
incomplete sentence was enough to violate the order prohibiting evidence of
subsequent remedial measures.
Id. at 1158-59. In the current case, the
expert witness completed his thought signaling to the jury that cages were
installed after the accident. As the court found in Blalock, even if a curative
5
instruction was given, the skunk was already in the jury box.
Id. at 1155 n. 1.
This, along with the comments made at closing, warrants a new trial.
Lastly, in closing argument, counsel for Artiles asked the jury to render
their verdict “not just for these two folks. This is an answer for this entire
community.” This is considered “send a message” language that is
prohibited. See R.J. Reynolds Tobacco Co. v. Gafney,
188 So. 3d 53 (Fla.
4th DCA 2016); Kloster Cruise Ltd. v. Grubbs,
762 So. 2d 552 (Fla. 3d DCA
2000); Maercks v. Birchansky,
549 So. 2d 199 (Fla. 3d DCA 1989). Artiles’s
counsel also referenced forty-year inspections and building safety, in context
of the collapse of the Surfside Tower that occurred during the trial. 2 Martex’s
objection was overruled by the trial court. The warehouse building where the
accident occurred was twenty-eight years old, and no issue of a forty-year
inspection had been presented at trial. This comment, along with subsequent
public discussion about building safety, was clearly improper closing
argument. The cumulative effect of these comments, along with the expert’s
2
The jury trial in the case before us began on June 21, 2021, and the
Champlain Towers in Surfside, Florida collapsed on June 24, 2021. The jury
verdict was rendered on July 1, 2021. There was intense media scrutiny of
the Surfside tower collapse and continuous, pervasive discussion in the
community during the time of trial about the possibility that Champlain
Towers had not undergone the required forty-year building inspections. The
collapse occurred in the middle of the night, and at the time of the collapse,
media throughout Miami-Dade County was reporting the possibility of deaths
in excess of one-hundred.
6
comment regarding the subsequent remedial measure of the cage
installation, was enough to negate a fair trial. See Blalock,
640 So. 2d at
1158-59.
Accordingly, we reverse the order on appeal granting summary
judgment in favor of Artiles and remand for a new trial consistent with this
opinion.
Reversed and remanded for a new trial.
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