LIEBHERR-AMERICA, INC., ETC., AND ZURICH AMERICAN INSURANCE CO., APPELLANTS,
v.
WALTER MCCOLLUM, ETC., ET AL., APPELLEES

Fla. 3d DCA | 2010-02-03
Nos. 3D08-2185, 3D08-2313
Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
43 So. 3d 65 Florida District Court of Appeal, Third District (2010)

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Synopsis

Liebherr-America, a crane seller and servicer, was found 10% liable by a jury for a worker's death caused when she was run over by a mobile crane at the Port of Miami. The appellate court reversed, holding that Liebherr-America had no legal basis for liability because it neither designed, manufactured, nor operated the crane, and owed no duty to warn of dangers after the crane passed from its control.


Holding

Liebherr-America is not liable because: (1) the jury found the crane was not defective at the time of sale, eliminating the primary basis for seller liability; (2) there was no evidence that Liebherr-America had notice of the horn malfunction or was negligent in failing to repair it, and no evidence the horn failure caused the accident; and (3) a seller has no duty to warn of dangers presented by equipment after it has passed from its control—such duty rests with the operator or property owner.


Headnotes

[1] A seller and servicer of equipment is not liable for a death caused by the equipment if the jury finds the equipment was not defective at the time of sale.

[2] A seller and servicer of equipment is not liable for a death caused by a malfunction of the equipment after sale unless there is evidence of prior occurrences, notice to…

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Key Quotes

“Although it neither designed, manufactured or operated the crane at the time of the accident, nor owned or controlled the property where Ms. McCollum was killed, the jury found it partially liable for the death. Because we find no legal basis for the appellant's liability in this case, we reverse the ensuing judgment against it with directions to enter judgment in its favor.”

Establishes the core holding that despite jury findings, Liebherr-America has no legal basis for liability given its limited role.

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Facts & Procedural History

On April 14, 2005, Audrey McCollum, a longshoreman, was crushed and killed when run over by a wheel assembly of a mobile harbor crane at the Port of M…

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Opinion of the Court
SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

On April 14, 2005, the plaintiffs’ decedent Audrey McCollum was run over and killed by a huge mobile crane at the Port of Miami. This case is an appeal by the entity whose role in the tragedy was confined to selling the crane to another defendant and agreeing to keep it in good repair. Although it neither designed, manufactured or operated the crane at the time of the accident, nor owned or controlled the property where Ms. McCollum was killed, the jury found it partially liable for the death. Because we find no legal basis for the appellant’s liability in this case, we reverse the ensuing judgment against it with directions to enter judgment in its favor.1

*67We consider and reject each of the even arguable bases upon which the appellant may be held liable:

(1) The primary duty and responsibility of a seller and servicer of equipment like Liebherr-America is ordinarily found in the claim that, at the time of the sale, the equipment contained a defect which rendered it unreasonably dangerous to persons in the vicinity of the crane. See West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); American Aerial Lift, Inc. v. Perez, 629 So.2d 169 (Fla. 3d DCA 1993). There was much conflicting evidence in the case on that issue, but it fell completely out of the case when the jury found that the crane was not defective at the time of the sale. In this decisive respect the present case is identical to Siemens Energy & Automation, Inc. v. Medina, 719 So.2d 312 (Fla. 3d DCA 1998), which alone requires reversal.

(2) An alternative argument pursued by the plaintiffs was an alleged breach of the appellant’s obligation to appropriately service the crane after its sale. It is true that there is some evidence that *68at the time of accident, some two years after the sale, one of the horns or other warning device was not operating properly. But this fact alone cannot give rise to liability in the absence of two crucial elements of such a claim. First, there was no evidence that the asserted failure (a) had previously occurred or (b) more important, that the appellant was on notice of such an impropriety, so that (c) even more significant, it had been guilty of any negligence in failing to repair it. Siemens, 719 So.2d at 315; Advance Chem. Co. v. Harter, 478 So.2d 444, 447 (Fla. 1st DCA 1985); Williams v. Joseph L. Rozier Machinery, Co., 135 So.2d 763, 765 (Fla. 2d DCA 1962). Secondly, and independently, there was no showing that the failure of the horn had anything to do with, that is, was even a legal cause of the accident. See Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984); Proto v. Graham, 788 So.2d 393, 396 (Fla. 5th DCA 2001).

(3) The issue most emphasized by the appellees is the claim that there was a breach of a “duty to warn” of the dangers presented by the operating crane. We find it unnecessary to discuss at length the factual nuances of this claim or the appellants’ insistence that the danger was so open and obvious that no duty could arise. This is so because in what is essentially a product liability case like this, there is simply no duty on the part of a seller (or anyone in the distributive chain) to warn of dangers presented by its operation after it has passed from its control. Any such duty is placed either on the allegedly negligent operator of the crane, who was the employee of another defendant, or on the owner of the property on which the decedent was an invitee or licensee, which was still another. See Foley v. Hialeah Race Course, Inc., 53 So.2d 771 (Fla.1951); Food Fair, Inc. v. Gold, 464 So.2d 1228 (Fla. 3d DCA 1985); Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961). Despite the tragic aspects of this case, we cannot hold otherwise.

Reversed and remanded.


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