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Filing # 107195749 E-Filed 05/07/2020 02:39:13 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION
ee
DANIEL SHELATZ and ALYN SHELATZ,
Plaintiff,
VS ) Case No.:
) 18000223CA
PUNTA GORDA HMA, LLC, d/b/a BAYFRONT )
HEALTH PUNTA GORDA,
Defendant.
ee
DEFENDANT'S RENEWED MOTION FOR DIRECTED VERDICT,
OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL
DATE TAKEN: January 27, 2020
TIME TAKEN: 2:35 p.m. to 3:20 p.m.
PLACE TAKEN: Charlotte County Courthouse
350 E. Marion Avenue
Punta Gorda, Florida 33950
BEFORE: The Honorable Lisa Porter
REPORTED BY: Shelly Flaherty, Notary Public
Merit Reporting, Inc.
Hearing
January
27, 2020
APPEARANCES
On behalf of the Plaintiff:
CHRISTOPHER GRAY, ESQUIRE
HUNTER HIGDON, ESQUIRE
FLORIN, GRAY, BOUZAS & OWENS, LLC
16524 Pointe Village Drive
Suite 100
Lutz, Florida 33558
On behalf of the Defendant:
A. KEVIN HOUSTON, ESQUIRE
LA CAVA & JACOBSON, P.A.
2590 Northbrooke Plaza
Suite 307
Naples, Florida 34119
"THE MCS GROUP, INC.
Hearing
January
27, 2020
THE COURT: So we have a Renewed Motion for
Directed Verdict, or, in the alternative, a Motion
for New Trial and Plaintiff's Motion for Partial
Summary Judgment. So I think, Mr. Houston, you
should probably go first.
MR. HOUSTON: Thank you, Judge. Do you want
me to stand or be seated?
THE COURT: You can have a seat.
MR. HOUSTON: Your Honor, again, this is
10 our Renewed Motion for Directed Verdict. If the
11 Court has had a chance to read the motion and
12 the cases and citations, the motion is pretty
13 self-explanatory.
14 We are renewing our position on directed
15 verdict, or, in the alternative, renewing our
16 motion for a new trial.
17 We went to great lengths in this case to
18 get the jury instructions concocted, which
19 followed the general principals. And to not
20 belabor that over and over again, I want to
21 point out the fact, in general, this is a case
22 that involves premises liability. It's a case
23 where an independent contractor, Dan Shelatz,
24 was working for AMSCO, performing H/VAC work on
25 the roof of a hospital back in October of 2017.
"THE MCS GROUP, INC.
Hearing
January
27, 2020
And this is a case where we all agreed and
read to the jury that the general principal under
Florida law is that the landlord, the hospital,
the defendant landlord, is not liable for the
injuries caused to employees of an independent
contractor doing work on its property except for
ertain situations, and those two are laid out.
One is the owner or possessor of land somehow
had to actively participate in and/or exercise
10 control or influence in the manner of the work
11 being performed.
12 If Your Honor recalls at trial, Your Honor
13 actually stipulated there was not enough in
14 meeting their burden to prove that, so the active
15 control exception was out.
16 Then we proceeded to instruct the jury on
17 the second exception, which I think we can focus
18 on here today. That's where it has been alleged
19 that the owner negligently creates or negligently
20 approves of a dangerous condition.
21 And Your Honor, in this case, it is clear
22 that the dangerous condition was created by
23 Mr. Shelatz and his employer and employees of
24 AMSCO.
25 In order to establish liability under the
"THE MCS GROUP, INC.
Hearing
January
27, 2020
second exception, talking about you've either
created or you approved some dangerous conditions,
the Plaintiffs have alleged -- as you recall, the
basis of their claim was this was a latent danger
on the fact this opening of the roof was not
somehow visible to someone who might be on the
roof. They went on talking about how they could
prove how that is a danger.
The case law talks about this. They didn't
10 present any evidence at trial from no witness or
11 testimony from employees that showed there was
12 any notice of this opening being a danger to
13 someone at night because, if you recall, Mr.
14 Jeffery Houck testified there had never been
15 any incidents. You maintain the property; you
16 go up there at night. He said yes. But he
17 testified at trial -- this is just sort of a
18 side note, but it goes to the real burden should
19 be on the Plaintiff to show and there was no
20 evidence showing this was some sort of danger
21 that the hospital knew or should have known with
22 due diligence. I will come back to that. It's
23 common sense. But there was never any notice this
24 hole was a problem because no one has ever stepped
25 off the edge or injured themselves similar to what
"THE MCS GROUP, INC.
Hearing
January
27, 2020
Mr. Shelatz did in the early hours of October 14,
2017. So there is no instance of record on that.
To point out, there is no evidence, no contrary
evidence or testimony to that being proven.
So how can you prove a condition is dangerous
to the possessor of land or landlord without
having some sort of example of prior notice or
prior complaints? None of that was ever shown.
So we talk about the Strickland case, and I
10 want to read this very carefully. That case is
11 found at 66 So. 3a 1002, Florida First DCA, 2011.
12 In that case, on page 1006 and 1007, it says, "The
13 Plaintiff must show that the owner negligently
14 creates or negligently approves a dangerous
15 condition."
16 We just talked about the fact, where is the
17 notice of dangerous condition?
18 Then it goes on to say, "When applying the
19 second exception, a property owner will be held
20 liable for damages only with regard to those
21 dangers that are not known to the independent
22 contractor or could not have been discovered
23 through the exercise of due care."
24 It goes on to say, Your Honor, "Further,
25 where the danger is opened up and apparent or
"THE MCS GROUP, INC.
Hearing
January
27, 2020
readily ascertainable, the property owner is
under no duty to warn and will not be held
liable for injuries sustained by an employee
of an independent contractor performing the work
under the contract."
There's another case, Morales vs. Weil,
W-e-i-l, 44 So. 3d 173, Florida Fourth DCA,
2010. "The property owner of a damaged roof had
no duty to maintain the roof in a reasonably safe
10 condition for the independent contractor because
11 the employee/independent contractor was injured
12 by one of the incidental hazards which made the
13 job dangerous."
14 The facts that came out in this case are
15 undisputed. There was a construction service
16 agreement between AMSCO and the hospital that
17 delegated all the duties of safety and perform
18 their work in a safe manner and meeting all the
19 building codes by the employer. Undisputed. We
20 submitted that agreement to the jury.
21 Second, Mr. Owen Bower testified that --
22 and Mr. Shelatz admitted this at trial, as well
23 -- he admitted that he was trained with OSHA
24 requirements and trained in fall hazards, and he
25 further testified that he was the project manager
oe
THE MCS GROUP, INC.
Hearing
January
27, 2020
for this particular job being performed in October
of 2017. The Plaintiff, himself, admitted at trial
that he was the project manager and superintendent
of construction. He also testified that he
physically walked on and inspected the hospital's
roof on at least two prior occasions. We had
pictures up there where he was on the roof and
walked the roof with Mr Castellano and Gus Garse
during the daytime. He had to at least walk by --
10 and we showed the jury, to a tired end, that path
11 and the opening or unprotected edge. He admitted
12 he had been on that roof before and he admitted
13 he had the responsibility, as the project manager,
14 to inspect that roof and to ensure that he was
15 taking precautions for any particular or any
16 afety hazards.
17 I have quoted in the motion, Judge, where
18 Mr. Shelatz talked about where he was the project
19 manager. That can be found at the trial testimony
20 I submitted to the Court with this motion. It's
21 pages 197, lines 20 to 24, and page 207, lines 11
22 to 25; page 208, lines 1 to 22. He also admitted
23 that he had never been on the hospital's roof at
24 night. He talked about his employees had never
25 been on Bayfront's roof at night and nor had he
"THE MCS GROUP, INC.
Hearing
January
27, 2020
conducted any type of inspection or assessment of
the hospital's roof for the purpose of performing
any work at night or at dark. That testimony can
be found on page 203, line 25 and page 204, lines
1 through 4, and page 219, lines 1 through 6. If
Your Honor wants me to go into the actual quote of
what he said, I will do that. That would be page
203, line 25.
"Isn't it true, sir, when you rendered an
10 assessment with Mr. Castellano, you guys did not
11 assess the premises of the roof for purposes of
12 performing the work?"
13 Answer: "No."
14 And Your Honor asked, “Have you ever
15 inspected a roof where you were doing work at
16 night?"
17 He said, "yes."
18 So it's clear he was never on the roof at
19 night. His employees had not been on the roof
20 at night. He was the project manager. He was
21 the superintendent. He had done night inspections
22 before. And in this particular case, there were
23 no inspection or assessments being made for
24 having the work being performed at night.
25 Fifth, it was clearly established that the
"THE MCS GROUP, INC.
Hearing
January
27, 2020
10
Plaintiff's incident, prior to the incident, some
of AMSCO's employees were working on the hospital
roof and were responsible for placing the duct
work.
I know Your Honor recalls, the jury was shown
pictures of this duct work. He answered, "Yes, I
was responsible for the amount of duct work, where
the duct work went, and how much duct work would
be obtained for this particular job." That
10 testimony can be found on page 211, lines 22 to
11 25, and page 212, lines 1 through 9.
12 MR. HIGDON: Is that the deposition or trial
13 transcript?
14 MR. HOUSTON: This is the trial transcript
15 Lastly, Your Honor, it was clear and it was
16 admitted and belabored that Mr. Shelatz went up
17 on the roof with no lighting device and walked
18 out onto the roof to the point he was able to
19 see the temporary duct work and then followed
20 the path of that duct work until he stepped off
21 the edge and fell from the roof.
22 He admitted and testified at trial that,
23 had he initially assessed the hospital roof for
24 the purpose of performing work at night and had
25 followed AMSCO's safety protocols with having
"THE MCS GROUP, INC.
Hearing
January
27, 2020
11
adequate lighting, the accident may have been
avoided. That can be found at page 220 of the
trial transcript, lines 4 through 16.
And when you look at the cases, the facts
are clear. When you look at Strickland, if you
look at the Morales case, which actually involved
a worker of a roofing company on a roof that was
damaged during a hurricane and the gentleman that
fell and sued the landowner, he was hired to do
10 some repair work. He fell through a weaker portion
11 of the roof. And the Court there established,
12 "Wait a minute; youtre hired to performed roof
13 work. When you get up on a roof, it is an
14 integral part of the work that you're performing
15 to be aware of your surroundings and prepare for
16 them."
17 This case is a prime example of where we,
18 the hospital, had the right to rely on the fact
19 that AMSCO was going to produce competent,
20 sufficiently experienced and skilled employees
21 and that they would have a supervisor who would
22 inspect for any applicable hazards their employees
23 may have or come into contact with. It was clear
24 that a roof's unprotected edge, such as an
25 opening, was certainly one of those that could
"THE MCS GROUP, INC.
Hearing
January
27, 2020
12
be foreseeable.
They admitted that they had safety protocols.
Owen Bower admitted at trial, when you are working
and if the work area is within six feet of an
unprotected edge, that the flag lines must be used;
and if you work at night, the lantern should have
been used. And it was clear in this case, none
of those devices were employed by Mr. Shelatz or
anyone at AMSCO. That was clearly brought out at
10 trial.
11 The case law says that the due diligence--
12 that the duty of the landowner to warn of these
13 latent known hazards, they should have known
14 about, and that's fine. But when you balance
15 it out, the employee or independent contractor
16 has the same burden. It's what was ascertainable
17 and what was discoverable when they exercised due
18 care.
19 It goes on to say, "However, if you are
20 performing under a contract," for example, in the
21 Strickland case, pressure washing and they were
22 up there spraying the bleach and stuff on the roof
23 and the gentleman fell five stories, the Court
24 went on to hold, "You were hired to pressure
25 clean a roof. You inspected that roof and gave
"THE MCS GROUP, INC.
Hearing
January
27, 2020
13
an estimate for that roof of what you were going
to charge for this. The peril of falling through
a skylight was incidental to the work they were
performing." And I think that's a fact that is
most important.
In this case, here before Your Honor that
we had, is Strickland.
AMSCO was hired to perform H/VAC and
replacement of these thousand-pound units --
10 multiple ones. They were the professionals hired.
11 This accident only happens because, as Mr. Shelatz
12 admitted, they violated their own protocol in
13 doing a proper assessment. He was called that
14 morning and testified that, "I was called by
15 Wayne and Homer and was told because they had
16 to finish a day early before, they were going to
17 go up there at 6:00 in the morning or maybe 5:30
18 -- before sunrise -- and finish out the work.
19 And he went to see where the cones were. He
20 talked about that to the jury. He went up on the
21 roof with no flashlight, no other lighting devices.
22 He didn't instruct his employees to put up any
23 lighting. That work area, where they laid the
24 duct work, should have had, (A), flag protocol,
25 and, (B), should have been lit up. But the point
"THE MCS GROUP, INC.
Hearing
January
27, 2020
14
is, Judge, he had been on the roof before. He
assessed it for all hazards. It should not be
the landowner's fault that he missed them. It
should not be the landowner's fault that, had
he used due care, he would have discovered this.
Had he used due care, this accident could have
been prevented. If he had a flashlight, he would
have seen that opening. There was no evidence
that anyone at the hospital was asked about
10 additional lighting up there.
11 Their whole theory was premised on the fact
12 that, because it was foreseeable, this gentleman
13 might go up there at night because they cut off
14 early the day before, that that's enough and
15 that's sufficient to put the hospital on notice
16 for anything dangerous that could happen.
17 This gentleman went into the work area and
18 the work area was not lit. The work area was
19 not flagged. The work area, where the duct work
20 was laid, he never inspected the duct work.
21 Landowners and premise owners cannot and
22 should not be held on the hook because the
23 employee did not follow their own safety protocols
24 and it was their sole responsibility to follow
25 them and the accident was the sole result of
"THE MCS GROUP, INC.
Hearing
January
27, 2020
15
that.
I understand the jury came back with 10
percent, but this is why I moved for directed
verdict and you reserved on it, Your Honor. I
understand that is in the back of all our minds.
This is honestly a case that should not have gone
to the jury because the facts are undisputed.
They line up to Strickland, Morales, and Johnson.
And they talk about situations where a landowner
10 hires someone to perform work and that person is
11 injured because of some integral part of the job
12 they were hired for, the landowner should not be
13 held liable.
14 None of the exceptions were met here. They
15 didn't create the dangerous condition and nor did
16 they approve of the dangerous condition because
17 it's undisputed the dangerous condition was the
18 visibility of the unprotected edge at nighttime.
19 And there is no one that testified to this jury
20 that they had a duty to do something. There was
21 no duty of the landowner to provide lighting to
22 Mr. Shelatz or any of AMSCO's employees because
23 the contract or the service agreement required
24 AMSCO to handle the responsibility for all of the
25 safety measures, all code requirements. And if
"THE MCS GROUP, INC.
Hearing
January
27, 2020
16
you look at those cases, the Johnson case, Your
Honor, can be found for the appellate record and
court reporter, at 985 So. 2d 593, Florida Fourth
DCA, 2008. Johnson vs. Boca Raton Community
Hospital. It talks about a person was injured
because of being exposed to asbestos. They were
a pipe worker performing work there. The Court
found there is no liability on behalf of the
landowner, the hospital in that case, because it
10 was certainly foreseeable. It was an integral
11 part of that gentleman's job for the work he
12 was doing that exposure to asbestos is something
13 he should have been aware of. Again, the same
14 duty has to go to Mr. Shelatz.
15 We have a duty to maintain a property ina
16 reasonable, safe condition. And the general
17 rule is that the landowner is not liable for
18 the injuries caused to an independent contractor's
19 employee except in two situations: One is active
20 control. That matter never went to the jury
21 because Your Honor ruled they didn't meet that
22 threshold burden. The second situation is
23 "negligently approved or created" -- the key is
24 "the dangerous condition". He went up there and
25 came across an unprotected edge at night and there
"THE MCS GROUP, INC.
Hearing
January
27, 2020
17
was no notice provided. There can't be a duty to
warn for something that never had notice of or
never had happened before.
I think the facts were clear at trial that
there was never any evidence of the hospital
having prior knowledge that anyone had ever been
injured because they had been up on that roof at
night and fell in that opening or unprotected edge
or anywhere else.
10 So if you're going to have a duty to warn,
11 if you did your due diligence -- the point is
12 there is no evidence here they didn't do that.
13 They have the burden to prove the exception
14 applies. If you got injured, employee, because
15 you were performing work you were hired to do,
16 that's even a higher burden. And that's why
17 Strickland, Morales, and Johnson cover this and
18 say, "Wait a minute. You were hired to perform
19 work that, in and of itself, has a dangerous
20 propensity." Getting up on a roof has a dangerous
21 propensity. We all can agree to that. This
22 case is clear evidence of one that should have
23 never went to the jury. There's no reasonable
24 person that could come to a different conclusion
25 based on all the facts. And in that situation,
"THE MCS GROUP, INC.
Hearing
January
27, 2020
18
Judge, the law steps in, as a matter of law,
based on these facts, and the landowner is not
liable because there was no duty to warn. There
were no other alleg
Preview
Filing # 107195749 E-Filed 05/07/2020 02:39:13 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION ee DANIEL SHELATZ and ALYN SHELATZ, Plaintiff, VS ) Case No.: ) 18000223CA PUNTA GORDA HMA, LLC, d/b/a BAYFRONT ) HEALTH PUNTA GORDA, Defendant. ee DEFENDANT'S RENEWED MOTION FOR DIRECTED VERDICT, OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL DATE TAKEN: January 27, 2020 TIME TAKEN: 2:35 p.m. to 3:20 p.m. PLACE TAKEN: Charlotte County Courthouse 350 E. Marion Avenue Punta Gorda, Florida 33950 BEFORE: The Honorable Lisa Porter REPORTED BY: Shelly Flaherty, Notary Public Merit Reporting, Inc. Hearing January 27, 2020 APPEARANCES On behalf of the Plaintiff: CHRISTOPHER GRAY, ESQUIRE HUNTER HIGDON, ESQUIRE FLORIN, GRAY, BOUZAS & OWENS, LLC 16524 Pointe Village Drive Suite 100 Lutz, Florida 33558 On behalf of the Defendant: A. KEVIN HOUSTON, ESQUIRE LA CAVA & JACOBSON, P.A. 2590 Northbrooke Plaza Suite 307 Naples, Florida 34119 "THE MCS GROUP, INC. Hearing January 27, 2020 THE COURT: So we have a Renewed Motion for Directed Verdict, or, in the alternative, a Motion for New Trial and Plaintiff's Motion for Partial Summary Judgment. So I think, Mr. Houston, you should probably go first. MR. HOUSTON: Thank you, Judge. Do you want me to stand or be seated? THE COURT: You can have a seat. MR. HOUSTON: Your Honor, again, this is 10 our Renewed Motion for Directed Verdict. If the 11 Court has had a chance to read the motion and 12 the cases and citations, the motion is pretty 13 self-explanatory. 14 We are renewing our position on directed 15 verdict, or, in the alternative, renewing our 16 motion for a new trial. 17 We went to great lengths in this case to 18 get the jury instructions concocted, which 19 followed the general principals. And to not 20 belabor that over and over again, I want to 21 point out the fact, in general, this is a case 22 that involves premises liability. It's a case 23 where an independent contractor, Dan Shelatz, 24 was working for AMSCO, performing H/VAC work on 25 the roof of a hospital back in October of 2017. "THE MCS GROUP, INC. Hearing January 27, 2020 And this is a case where we all agreed and read to the jury that the general principal under Florida law is that the landlord, the hospital, the defendant landlord, is not liable for the injuries caused to employees of an independent contractor doing work on its property except for ertain situations, and those two are laid out. One is the owner or possessor of land somehow had to actively participate in and/or exercise 10 control or influence in the manner of the work 11 being performed. 12 If Your Honor recalls at trial, Your Honor 13 actually stipulated there was not enough in 14 meeting their burden to prove that, so the active 15 control exception was out. 16 Then we proceeded to instruct the jury on 17 the second exception, which I think we can focus 18 on here today. That's where it has been alleged 19 that the owner negligently creates or negligently 20 approves of a dangerous condition. 21 And Your Honor, in this case, it is clear 22 that the dangerous condition was created by 23 Mr. Shelatz and his employer and employees of 24 AMSCO. 25 In order to establish liability under the "THE MCS GROUP, INC. Hearing January 27, 2020 second exception, talking about you've either created or you approved some dangerous conditions, the Plaintiffs have alleged -- as you recall, the basis of their claim was this was a latent danger on the fact this opening of the roof was not somehow visible to someone who might be on the roof. They went on talking about how they could prove how that is a danger. The case law talks about this. They didn't 10 present any evidence at trial from no witness or 11 testimony from employees that showed there was 12 any notice of this opening being a danger to 13 someone at night because, if you recall, Mr. 14 Jeffery Houck testified there had never been 15 any incidents. You maintain the property; you 16 go up there at night. He said yes. But he 17 testified at trial -- this is just sort of a 18 side note, but it goes to the real burden should 19 be on the Plaintiff to show and there was no 20 evidence showing this was some sort of danger 21 that the hospital knew or should have known with 22 due diligence. I will come back to that. It's 23 common sense. But there was never any notice this 24 hole was a problem because no one has ever stepped 25 off the edge or injured themselves similar to what "THE MCS GROUP, INC. Hearing January 27, 2020 Mr. Shelatz did in the early hours of October 14, 2017. So there is no instance of record on that. To point out, there is no evidence, no contrary evidence or testimony to that being proven. So how can you prove a condition is dangerous to the possessor of land or landlord without having some sort of example of prior notice or prior complaints? None of that was ever shown. So we talk about the Strickland case, and I 10 want to read this very carefully. That case is 11 found at 66 So. 3a 1002, Florida First DCA, 2011. 12 In that case, on page 1006 and 1007, it says, "The 13 Plaintiff must show that the owner negligently 14 creates or negligently approves a dangerous 15 condition." 16 We just talked about the fact, where is the 17 notice of dangerous condition? 18 Then it goes on to say, "When applying the 19 second exception, a property owner will be held 20 liable for damages only with regard to those 21 dangers that are not known to the independent 22 contractor or could not have been discovered 23 through the exercise of due care." 24 It goes on to say, Your Honor, "Further, 25 where the danger is opened up and apparent or "THE MCS GROUP, INC. Hearing January 27, 2020 readily ascertainable, the property owner is under no duty to warn and will not be held liable for injuries sustained by an employee of an independent contractor performing the work under the contract." There's another case, Morales vs. Weil, W-e-i-l, 44 So. 3d 173, Florida Fourth DCA, 2010. "The property owner of a damaged roof had no duty to maintain the roof in a reasonably safe 10 condition for the independent contractor because 11 the employee/independent contractor was injured 12 by one of the incidental hazards which made the 13 job dangerous." 14 The facts that came out in this case are 15 undisputed. There was a construction service 16 agreement between AMSCO and the hospital that 17 delegated all the duties of safety and perform 18 their work in a safe manner and meeting all the 19 building codes by the employer. Undisputed. We 20 submitted that agreement to the jury. 21 Second, Mr. Owen Bower testified that -- 22 and Mr. Shelatz admitted this at trial, as well 23 -- he admitted that he was trained with OSHA 24 requirements and trained in fall hazards, and he 25 further testified that he was the project manager oe THE MCS GROUP, INC. Hearing January 27, 2020 for this particular job being performed in October of 2017. The Plaintiff, himself, admitted at trial that he was the project manager and superintendent of construction. He also testified that he physically walked on and inspected the hospital's roof on at least two prior occasions. We had pictures up there where he was on the roof and walked the roof with Mr Castellano and Gus Garse during the daytime. He had to at least walk by -- 10 and we showed the jury, to a tired end, that path 11 and the opening or unprotected edge. He admitted 12 he had been on that roof before and he admitted 13 he had the responsibility, as the project manager, 14 to inspect that roof and to ensure that he was 15 taking precautions for any particular or any 16 afety hazards. 17 I have quoted in the motion, Judge, where 18 Mr. Shelatz talked about where he was the project 19 manager. That can be found at the trial testimony 20 I submitted to the Court with this motion. It's 21 pages 197, lines 20 to 24, and page 207, lines 11 22 to 25; page 208, lines 1 to 22. He also admitted 23 that he had never been on the hospital's roof at 24 night. He talked about his employees had never 25 been on Bayfront's roof at night and nor had he "THE MCS GROUP, INC. Hearing January 27, 2020 conducted any type of inspection or assessment of the hospital's roof for the purpose of performing any work at night or at dark. That testimony can be found on page 203, line 25 and page 204, lines 1 through 4, and page 219, lines 1 through 6. If Your Honor wants me to go into the actual quote of what he said, I will do that. That would be page 203, line 25. "Isn't it true, sir, when you rendered an 10 assessment with Mr. Castellano, you guys did not 11 assess the premises of the roof for purposes of 12 performing the work?" 13 Answer: "No." 14 And Your Honor asked, “Have you ever 15 inspected a roof where you were doing work at 16 night?" 17 He said, "yes." 18 So it's clear he was never on the roof at 19 night. His employees had not been on the roof 20 at night. He was the project manager. He was 21 the superintendent. He had done night inspections 22 before. And in this particular case, there were 23 no inspection or assessments being made for 24 having the work being performed at night. 25 Fifth, it was clearly established that the "THE MCS GROUP, INC. Hearing January 27, 2020 10 Plaintiff's incident, prior to the incident, some of AMSCO's employees were working on the hospital roof and were responsible for placing the duct work. I know Your Honor recalls, the jury was shown pictures of this duct work. He answered, "Yes, I was responsible for the amount of duct work, where the duct work went, and how much duct work would be obtained for this particular job." That 10 testimony can be found on page 211, lines 22 to 11 25, and page 212, lines 1 through 9. 12 MR. HIGDON: Is that the deposition or trial 13 transcript? 14 MR. HOUSTON: This is the trial transcript 15 Lastly, Your Honor, it was clear and it was 16 admitted and belabored that Mr. Shelatz went up 17 on the roof with no lighting device and walked 18 out onto the roof to the point he was able to 19 see the temporary duct work and then followed 20 the path of that duct work until he stepped off 21 the edge and fell from the roof. 22 He admitted and testified at trial that, 23 had he initially assessed the hospital roof for 24 the purpose of performing work at night and had 25 followed AMSCO's safety protocols with having "THE MCS GROUP, INC. Hearing January 27, 2020 11 adequate lighting, the accident may have been avoided. That can be found at page 220 of the trial transcript, lines 4 through 16. And when you look at the cases, the facts are clear. When you look at Strickland, if you look at the Morales case, which actually involved a worker of a roofing company on a roof that was damaged during a hurricane and the gentleman that fell and sued the landowner, he was hired to do 10 some repair work. He fell through a weaker portion 11 of the roof. And the Court there established, 12 "Wait a minute; youtre hired to performed roof 13 work. When you get up on a roof, it is an 14 integral part of the work that you're performing 15 to be aware of your surroundings and prepare for 16 them." 17 This case is a prime example of where we, 18 the hospital, had the right to rely on the fact 19 that AMSCO was going to produce competent, 20 sufficiently experienced and skilled employees 21 and that they would have a supervisor who would 22 inspect for any applicable hazards their employees 23 may have or come into contact with. It was clear 24 that a roof's unprotected edge, such as an 25 opening, was certainly one of those that could "THE MCS GROUP, INC. Hearing January 27, 2020 12 be foreseeable. They admitted that they had safety protocols. Owen Bower admitted at trial, when you are working and if the work area is within six feet of an unprotected edge, that the flag lines must be used; and if you work at night, the lantern should have been used. And it was clear in this case, none of those devices were employed by Mr. Shelatz or anyone at AMSCO. That was clearly brought out at 10 trial. 11 The case law says that the due diligence-- 12 that the duty of the landowner to warn of these 13 latent known hazards, they should have known 14 about, and that's fine. But when you balance 15 it out, the employee or independent contractor 16 has the same burden. It's what was ascertainable 17 and what was discoverable when they exercised due 18 care. 19 It goes on to say, "However, if you are 20 performing under a contract," for example, in the 21 Strickland case, pressure washing and they were 22 up there spraying the bleach and stuff on the roof 23 and the gentleman fell five stories, the Court 24 went on to hold, "You were hired to pressure 25 clean a roof. You inspected that roof and gave "THE MCS GROUP, INC. Hearing January 27, 2020 13 an estimate for that roof of what you were going to charge for this. The peril of falling through a skylight was incidental to the work they were performing." And I think that's a fact that is most important. In this case, here before Your Honor that we had, is Strickland. AMSCO was hired to perform H/VAC and replacement of these thousand-pound units -- 10 multiple ones. They were the professionals hired. 11 This accident only happens because, as Mr. Shelatz 12 admitted, they violated their own protocol in 13 doing a proper assessment. He was called that 14 morning and testified that, "I was called by 15 Wayne and Homer and was told because they had 16 to finish a day early before, they were going to 17 go up there at 6:00 in the morning or maybe 5:30 18 -- before sunrise -- and finish out the work. 19 And he went to see where the cones were. He 20 talked about that to the jury. He went up on the 21 roof with no flashlight, no other lighting devices. 22 He didn't instruct his employees to put up any 23 lighting. That work area, where they laid the 24 duct work, should have had, (A), flag protocol, 25 and, (B), should have been lit up. But the point "THE MCS GROUP, INC. Hearing January 27, 2020 14 is, Judge, he had been on the roof before. He assessed it for all hazards. It should not be the landowner's fault that he missed them. It should not be the landowner's fault that, had he used due care, he would have discovered this. Had he used due care, this accident could have been prevented. If he had a flashlight, he would have seen that opening. There was no evidence that anyone at the hospital was asked about 10 additional lighting up there. 11 Their whole theory was premised on the fact 12 that, because it was foreseeable, this gentleman 13 might go up there at night because they cut off 14 early the day before, that that's enough and 15 that's sufficient to put the hospital on notice 16 for anything dangerous that could happen. 17 This gentleman went into the work area and 18 the work area was not lit. The work area was 19 not flagged. The work area, where the duct work 20 was laid, he never inspected the duct work. 21 Landowners and premise owners cannot and 22 should not be held on the hook because the 23 employee did not follow their own safety protocols 24 and it was their sole responsibility to follow 25 them and the accident was the sole result of "THE MCS GROUP, INC. Hearing January 27, 2020 15 that. I understand the jury came back with 10 percent, but this is why I moved for directed verdict and you reserved on it, Your Honor. I understand that is in the back of all our minds. This is honestly a case that should not have gone to the jury because the facts are undisputed. They line up to Strickland, Morales, and Johnson. And they talk about situations where a landowner 10 hires someone to perform work and that person is 11 injured because of some integral part of the job 12 they were hired for, the landowner should not be 13 held liable. 14 None of the exceptions were met here. They 15 didn't create the dangerous condition and nor did 16 they approve of the dangerous condition because 17 it's undisputed the dangerous condition was the 18 visibility of the unprotected edge at nighttime. 19 And there is no one that testified to this jury 20 that they had a duty to do something. There was 21 no duty of the landowner to provide lighting to 22 Mr. Shelatz or any of AMSCO's employees because 23 the contract or the service agreement required 24 AMSCO to handle the responsibility for all of the 25 safety measures, all code requirements. And if "THE MCS GROUP, INC. Hearing January 27, 2020 16 you look at those cases, the Johnson case, Your Honor, can be found for the appellate record and court reporter, at 985 So. 2d 593, Florida Fourth DCA, 2008. Johnson vs. Boca Raton Community Hospital. It talks about a person was injured because of being exposed to asbestos. They were a pipe worker performing work there. The Court found there is no liability on behalf of the landowner, the hospital in that case, because it 10 was certainly foreseeable. It was an integral 11 part of that gentleman's job for the work he 12 was doing that exposure to asbestos is something 13 he should have been aware of. Again, the same 14 duty has to go to Mr. Shelatz. 15 We have a duty to maintain a property ina 16 reasonable, safe condition. And the general 17 rule is that the landowner is not liable for 18 the injuries caused to an independent contractor's 19 employee except in two situations: One is active 20 control. That matter never went to the jury 21 because Your Honor ruled they didn't meet that 22 threshold burden. The second situation is 23 "negligently approved or created" -- the key is 24 "the dangerous condition". He went up there and 25 came across an unprotected edge at night and there "THE MCS GROUP, INC. Hearing January 27, 2020 17 was no notice provided. There can't be a duty to warn for something that never had notice of or never had happened before. I think the facts were clear at trial that there was never any evidence of the hospital having prior knowledge that anyone had ever been injured because they had been up on that roof at night and fell in that opening or unprotected edge or anywhere else. 10 So if you're going to have a duty to warn, 11 if you did your due diligence -- the point is 12 there is no evidence here they didn't do that. 13 They have the burden to prove the exception 14 applies. If you got injured, employee, because 15 you were performing work you were hired to do, 16 that's even a higher burden. And that's why 17 Strickland, Morales, and Johnson cover this and 18 say, "Wait a minute. You were hired to perform 19 work that, in and of itself, has a dangerous 20 propensity." Getting up on a roof has a dangerous 21 propensity. We all can agree to that. This 22 case is clear evidence of one that should have 23 never went to the jury. There's no reasonable 24 person that could come to a different conclusion 25 based on all the facts. And in that situation, "THE MCS GROUP, INC. Hearing January 27, 2020 18 Judge, the law steps in, as a matter of law, based on these facts, and the landowner is not liable because there was no duty to warn. There were no other alleg