H. MAX SHECKLER, APPELLANT,
v.
CITY OF MT. DORA AND CONTINENTAL INSURANCE COMPANY, A NEW YORK CORPORATION, APPELLEES
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The trial court erred in excluding expert testimony about how to correct the dumpster's unsafe condition when the city had actual knowledge of the hazard and was charged with maintaining it safely.
A trial court must permit expert testimony regarding how a property owner could have corrected a known unsafe condition when the owner's negligent failure to maintain safe conditions is the central issue.
[1] When a property owner's negligent failure to maintain safe conditions is the charged issue, expert testimony regarding feasible corrections to a known hazard is admissibl…
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Join FLexlaw to unlock all legal intelligence“The issues ... are whether the City of Mount Dora negligently failed to maintain the refuse containers in a reasonably safe condition”
Trial court's jury charge establishing negligent maintenance as the central issue
Appellant was injured when a trash dumpster lid fell on him. The city's Public Works Superintendent knew the dumpster was unsafe in an up position and…
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DAUKSCH, Chief Judge.
The issue in this case is whether the trial judge properly excluded evidence relating to the responsibility on the part of the city for appellant’s injuries which occurred when the lid of a trash dumpster fell upon him. It was the city’s position that it was the manufacturer’s fault the lid struck the appellant, or that it was appellant’s fault himself. Appellant attempted to elicit testimony from an expert witness relating to “how this instability and unsafe condition could be corrected on this particular dumpster?” The trial judge did not permit this question to be answered because, he said, the city was not responsible for redesigning the dumpster. However, there was evidence the city knew this dumpster was particularly unsafe because the Public Works Superintendent, who was responsible for the maintenance and repair of these dumpsters, was told of the problem. In fact, he had warned his drivers that if a dumpster was seen in an up position it was hazardous and must be corrected. This was one of those up-position dumpsters.
The trial judge correctly charged the jury “The issues ... are whether the City of Mount Dora negligently failed to maintain the refuse containers in a reasonably safe condition .... ” Based upon the evidence and this charge he should have permitted the testimony regarding the city’s maintenance of a safe dumpster and any warnings that the city might have been bound to give. Redwing Carders, Inc. v. Watson, 341 So. 2d 1049 (Fla. 4th DCA 1977).
The judgment is reversed and this cause remanded for a new trial.
REVERSED AND REMANDED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991)…ployees. We see little difference between the alleged misconduct here and a situation where a dumpmaster driver negligently causes the dumpster to fall on a vehicle or pedestrian while moving the dumpster. See, e.g., Scheckler v. City of Mount Dora, 395 So. 2d 1188 (Fla. 5th DCA 1981). The city also maintains that it was improperly held liable here because the location of the dumpster was open and obvious, and therefore, the location of the dumpster was not the proximate cause of the accident. On this issue w…1 / 2
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Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484 (Fla. 3d DCA 1997)…v. Big Discount Panel Ctr., 402 So. 2d 64 (Fla. 4th DCA 1981); see State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935 (Fla. 4th DCA 1996); Metropolitan Dade County v. St. Claire, 445 So. 2d 614 (Fla. 3d DCA 1984); Sheckler v. City of Mt. Dora, 395 So. 2d 1188 (Fla. 5th DCA 1981); Schwartz v. M.J.M. Corp., 368 So. 2d 91 (Fla. 3d DCA 1979); Gifford v. Galaxie Homes of Tampa, Inc., 223 So. 2d 108 (Fla. 2d DCA 1969), cert. denied, 229 So. 2d 869 (Fla.1969); Millar v. Tropical Gables Corp., 99 So. 2d 589 (Fla…
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Vega v. City OF Pompano Beach, 551 So. 2d 594 (Fla. 4th DCA 1989)…nied, 229 So. 2d 869 (Fla. 1969) (trial court erred in excluding expert opinions concerning whether areas were constructed and maintained according to reasonable engineering safety standards). Appellant also relies on Sheckler v. City of Mount Dora, 395 So. 2d 1188 (Fla. 5th DCA 1981) (error to exclude expert testimony on issue of design defect and whether city maintained a safe dumpster and warnings should have been given); Metropolitan Dade Co. v. St. Claire, 445 So. 2d 614 (Fla. 3d DCA 1984) (expert’s testi…
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
- Redwing Carriers, Inc. v. Watson, 341 So. 2d 1049 (Fla. 4th DCA 1977)