IN THE SUPREME COURT OF FLORIDA

CASE NO. SC11-2188

ROBERT FRIEDRICH and L.T. CASE NOS:HEATHER FRIEDRICH, his wife, 4th DCA CASE NO. 4D09-3661

15th CIR. CASE NO. 50 2005 CA 006954 MBPetitioners,

v.

FETTERMAN AND ASSOCIATES,P.A.,

Respondent.

PETITIONERS' REPLY BRIEF ON THE MERITS

REBECCA MERCIER VARGAS andJANE KREUSLER-WALSH ofKREUSLER-WALSH, COMPIANI & VARGAS, P.A.501 South Flagler Drive, Suite 503West Palrn Beach, FL 33401-5913(561) 659-5455

andSCOTT B. SMITH andMARGARET M. BICHLER ofLYTAL, REITER, SMITH, IVEY & FRONRATH515 North Flagler Drive, 10th FloorWest Palm Beach, FL 33401(561) 655-1990

TABLEOFCONTENTSPage

Argument 1

Point on Review 1THE JURY MUST DECIDE THE QUESTION OFNEGLIGENCE IN A COLLAPSING CHAIR CASE WHENTHE PLAINTIFF PRESENTS EVIDENCE THAT THEDEFENDANT WOULD HAVE DISCOVERED THEDANGEROUS CONDITION WITH ANINSPECTION ANDTHE DISTRICT COURT CANNOT REWEIGH THEEVIDENCE OR IMPOSE A CAUSATION STANDARDHIGHER THAN "MORE LIKELY THAN NOT."

A. The Fourth District's decision conflicts with chair collapsecases establishing that the reasonableness of aninspection is a question for the jury.

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B. The Friedrichs' expert testified that the Fetterman firmwould have discovered the dangerous condition of thechair with an inspection. 6

C. The Friedrichs' expert's opinion was not "new" and theFetterman firm did not preserve this argument. 10

D. There is no need to remand for the Fourth District toconsider whether the verdict was against the manifestweight of the evidence. 11

Conclusion 12

Certificate of Service 13

Certificate ofFont 14

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TABLE OF CITATIONS

Case Page

Aills v. Boemi,29 So. 3d 1105 (Fla. 2010) 10

Binger v. King Pest Control,401 So. 2d 1310 (Fla. 1981) 11

Brown v. Estate of Stuckey,749 So. 2d 490 (Fla. 1999) 11, 12

Cox v. St. Josephs Hosp.,71 So. 3d 795 (Fla. 2011) 9

Fetterman & Assocs., P.A. v. Friedrich,69 So. 3d 965 (Fla. 4th DCA 2011) passim

Fontana v. Wilson World Maingate Condo.,717 So. 2d 199 (Fla. 5th DCA 1998) 2, 3, 4, 5

Ricks v. Loyola,822 So. 2d 502 (Fla. 2002) 11

Schneider v. K.S.B. Realty & Investing Corp.,128 So. 2d 398 (Fla. 3d DCA 1961) 2, 5

Wiggins v. Sadow,925 So. 2d 1152 (Fla. 4th DCA 2006) 12

Yuniter v. A & A Edgewater of Fla., Inc.,707 So. 2d 763 (Fla. 2d DCA 1998) 2, 4, 5

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ARGUMENT

POINT ON REVIEW

THE JURY MUST DECIDE THE QUESTION OFNEGLIGENCE IN A COLLAPSING CHAIR CASEWHEN THE PLAINTIFF PRESENTS EVIDENCETHAT THE DEFENDANT WOULD HAVEDISCOVERED THE DANGEROUS CONDITIONWITH AN INSPECTION AND THE DISTRICTCOURT CANNOT REWEIGH THE EVIDENCE ORIMPOSE A CAUSATION STANDARD HIGHERTHAN "MORE LIKELY THAN NOT."

A. The Fourth District's decision conflicts with chair collapse casesestablishing that the reasonableness of an inspection is a question forthe jury.

The Fetterman firm cannot escape that the Friedrichs' engineering expert, Mr.

Sasso, testified that "a 'hands-on inspection' of the chair before the accident should

have revealed the weak joint" in the conference room chair (A:1; see A:3; T2:101, 111-

13, 123, 128, 135, 144). I The Fetterman firm even concedes that the Friedrichs' expert

"gave the jury testimony upon which they could base a finding ofnegligence" (AB:1).

Indeed, the Fourth District cited this very testimony in its decision (A:1). The decision

also acknowledged that the Friedrichs adduced evidence that a reasonable business,

including the Fetterman firm, should periodically inspect its furniture for defects (A:1-

All symbols are used as stated in the Preliminary Statement ofthe Initial Briefwith the following additions: AB - the Fetterman firm's Answer Brief; IB - theFriedrichs' Initial Brief. All emphasis is supplied unless stated otherwise.

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3). Yet, the Fourth District reversed for entry of a directed verdict for the Fetterman

firm because, the decision claimed, the Friedrichs presented no evidence ofhow long

the dangerous condition existed (A:4).

This holding conflicts with decisions from other districts involving collapsing

chairs, which make clear that the plaintiff does not have to prove exactly how long the

dangerous condition existed. See, e.g., Fontana v. Wilson World Maingate Condo.,

717 So. 2d 199, 199-200 (Fla. 5th DCA 1998); Yuniter v. A & A Edgewater of Fla.,

Inc., 707 So. 2d 763, 764 (Fla. 2d DCA 1998); Schneider v. K.S.B. Realty & Investing

Corp., 128 So. 2d 398, 399 (Fla. 3d DCA 1961). In all three decisions, the plaintiffs

presented evidence that a reasonable inspection would have revealed the dangerous

condition in the chair. The decisions all held that where, as here, the plaintiff

presented evidence that the failure to conduct a reasonable inspection caused the

injury, the question ofnegligence is for the jury. See, e.g., Fontana, 717 So. 2d at 199-

200; Yuniter, 707 So. 2d at 764; Schneider, 128 So. 2d at 399. None of these cases

holds that the plaintiff must prove how long the dangerous condition existed.

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The Fetterman firm tries to distinguish these cases as purportedly involving

"some evidence of probability as to what an inspection would have found." (AB:17)

(emphasis in original). The Fetterman firm claims the Friedrichs' expert testified that

"it is impossible to know whether a proper inspection would have revealed this defect"

(AB:18; see AB:23)(emphasis in original). This is not true. The Fourth District made

the same error when it stated that the Friedrichs' expert "conceded that it was possible

that a flex-test may not have revealed the weak joint since it was not possible to

determine when the joint began to weaken to the point that it would have begun to flex

under the test" (A:2). Actually, the Friedrichs' expert testified that an inspection

would have revealed the dangerous condition in the chair (T2:101, 111-13, 123, 128,

135, 144).

The Fetterman firm fails in its attempt to distinguish Fontana as involving a visible

problem with the swivel in the chair that collapsed (AB:17-18). The Fontana decision

states the defect in the chair "was hidden" and that the defendant's employees "merely

looking at the chair would not have observed danger." 717 So. 2d at 200. The Fifth

District held that although the defect was hidden it "should have been apparent had [the

defendant] checked the chair." Id. at 199. A jury question existed even though "there

was no evidence offered as to how long the chair had been defective." Id. at 199.

The defendant "had no procedure in place for the inspection or maintenance of its

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furnishings" and "did not check the condition of its furniture to see that it was in a safe

condition." Id. at 200. The court in Fontana reversed a directed verdict for the defendant

because "[t]he jury could have found that the owner's ostrich-like approach to the

safety of its premises did not meet its obligations to its invitees." Id.

Similarly, this case involves a collapsing chair with a dangerous condition not

visible to the naked eye, but discoverable with an inspection (A:1, 3; T2:94, 101, 111-

13, 123, 128, 135, 144; T7:770-71, 788). The Fetterman firm here took the same

"ostrich-like approach to safety" and never inspected the chairs (T2:138-40; T6:723;

T7:789-90; T9:1112-13, 1115-17, 1154-55, 1161). Yet, directly contrary to Fontana, the

Fourth District in Fetterman reversed for entry of a directed verdict because the expert

"provided no time frame concerning how long before the accident such testing would

have been effective" (A:3) (emphasis in original).

Consistent with Fontana, the Second District in Yuniter did not require the

plaintiff to establish how long the defective condition existed. Yuniter, 707 So. 2d at

764. In Yuniter, a chair in a hotel room collapsed when the plaintiff, a hotel guest,

stood on it. The defendant had not discovered the dangerous condition in the chair

during an inspection six weeks earlier or while housekeeping staff cleaned the chair.

See id. The Second District reversed because a question of fact existed as to the

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reasonableness of the inspection. See id. "Generally questions concerning whether a

proper inspection, ifmade, would have revealed alleged defects are considered genuine

triable issues." Id.

The Fetterman firm distinguishes Yuniter by fabricating its own version of the

Freidrichs' expert's testimony. His testimony did not, as the Fetterman firm claims,

"establish[] that it is impossible to know whether a proper inspection would have

revealed this defect." (AB:18; see AB:23)(emphasis in original). To the contrary, as

discussed below in part B, infra, the Friedrichs' expert testified that the dangerous

condition would have been discovered with an inspection.

Fetterman is indistinguishable from Fontana, Yuniter, and Schneider. As the

Fourth District decision recognized, the Friedrichs' expert testified that testing the

chair "would have revealed the defect in the chair" and that "periodic inspections of

office chairs was reasonable." (A:3). Despite this evidence, the Fourth District

reversed the judgment for the Friedrichs and remanded to enter judgment for the

Fetterman firm who had never inspected the chair (A:2, 4). The Friedrichs have a

right to have the jury resolve any conflicts in the evidence and decide the issue of

negligence. This Court should resolve this express and direct conflict among the

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district court decisions by quashing the Fourth District's decision and remanding for

entry of judgment for the Friedrichs in accord with the jury's verdict.

B. The Friedrichs' expert testified that the Fetterman firm would havediscovered the dangerous condition of the chair with an inspection.

The Fourth District recognized that the Friedrichs' expert testified that "a

'hands-on inspection' of the chair before the accident should have revealed the weak

joint" in the conference room chair (A:1; see A:3). Inconsistently, the Fourth District

mischaracterized the Friedrich's expert as having "conceded that it was possible that a

flex-test may not have revealed the weak joint since it was not possible to determine

when the joint began to weaken to the point that the legs would have begun to flex

under the test" (A:2). The Fetterman firm makes the same error and claims, without

support in the record, that the Friedrichs' expert testified "it was impossible to

determine whether that omission was causally related to the accident" (AB:23; see

AB:18).

A review ofthe trial transcript reveals that the Friedrichs' expert never made this

concession or stated it was impossible to make this determination. To the contrary, he

testified that "[h]ad [Fetterman] done a hands-on inspection he would have found that

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the right side was more flexible than the left side" and "ifhe had done a right side -- an

inspection of the chair he would have found it." (T2:128).

Both parties' experts agreed that the chair was unsafe and dangerous due to a

weak joint that did not fit tightly (A:1; T2:94, 97-107, 109; T7:770-71, 788; T9:1158).2

The Friedrichs' expert testified that "a hands-on inspection of the chair before the

accident should have found the weakjoint that caused this chair to fail."(T2:101 ). He

explained the reason for his opinion - namely, that the chair's joint had failed slowly

over time (T2:97-100, 109-10, 144). The Friedrichs' expert discussed the physical

evidence that supported his position:

This is dry glue where it over time peeled away from--that's how I know that the right side fracture was a slowfracture over a period of time where if you compare it tothe left-hand side, which was a rupture.

(T2:100).

On cross-examination, the Friedrichs' expert testified that "from the evidence of

the back wood peeling away it took time over - - it could take just seconds to hours to

days to weeks" for the chair to fail (T2:127; see T2:130, 137). Despite this, the

2 Both parties' experts examined the chair after the collapse, when it was alreadyin pieces (T2:93).

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Friedrichs' expert maintained that an inspection would have revealed the danger:

Q. Thank you. With regard to whether my clientwould know that this right joint was loose, isn't that purespeculation on your part?

A. Had he done a hands-on inspection he wouldhave found that the right side was more flexible than theleft side.

Q. . . . . And because you don't know what it lookedlike after the manufacturer, after the repair process, therewould be no way of you being able to testify whether myclient knew or should have known or could have done aninspection that would reveal the right sided weakness, isn'tthat true?

A. Just if he had done a right side--an inspectionof the chair he would have found it.

(T2:127).

Q. And that would be pure speculation on your partto believe that that type of a testing would reveal a problem?

A. That type of testing will test the flexibility ofboth joints and if one is significantly more flexible thanthe other that would show a weaker joint.

(T2:135).

On redirect, the Friedrichs' expert made clear that because the joint ofthe chair

loosened slowly over time, the Fetterman firm should have discovered it:

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Q. Is it because of the gradual loosening of the rightside over time that you believe a simple inspection wouldhave revealed that there's less of a bond on the rightside versus the left?

A. Yes. There would have been more flexibility onthe right side than the left, yes.

(T2:144). The Friedrichs' expert's testimony establishes that the Fetterman firm would

have discovered the dangerous condition if it had inspected its conference room chairs

(T2:101, 111-13, 117-19, 123, 128, 133, 135, 140, 144).

In Cox v. St. Josephs Hospital, 71 So. 3d 795, 799-801 (Fla. 2011), this Court

reiterated the well-settled principle that the district court cannot reweigh the testimony

of an expert witness. If the plaintiff's expert testifies that the defendant's conduct "more

likely than not" caused the injury, the resolution ofconflicting expert testimony "is a matter

for the jury, not a matter for the appellate court to resolve as a matter of law." Id. at 801. "If

the plaintiff has presented evidence that could support a finding that the defendant more

likely than not caused the injury, a directed verdict is improper." Id.

The Fourth District here made the same mistake as the district court in Cox. The

district court cannot take one sentence of testimony and ignore all the other evidence

presented in the case. It was for the jury to weigh and evaluate any discrepancies in the

testimony. Reversal for a directed verdict was improper. This Court should quash the

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decision.

C. The Friedrichs' expert's opinion was not "new" and the Fettermanfirm did not preserve this argument.

The Answer Brief discounts the testimony of the Friedrichs' expert as "new

opinion" (AB:8-9, 13). His opinion -- that the Fetterman firm would have found the

dangerous condition in the chair with an inspection -- was not "new." But even if it

were, the Fetterman firm did not preserve this argument.

The Friedrichs' expert testified, without objection, that "a hands-on inspection of

the chair before the accident should have found the weak joint that caused this chair to

fail" (T2:101). When the Friedrichs' expert later testified that "a hands-on inspection

of the chair before the accident should have found this weak joint," counsel for the

Fetterman firm belatedly objected on two grounds: "speculation" and "lack of

predicate" (T2:111-12). The trial court overruled these objections (T2:111-12). The

Fetterman firm never objected on the basis that the expert opinion was "new"(T2:101,

111-12). This argument is not preserved. See Aills v. Boemi, 29 So. 3d 1105, 1108-

09 (Fla. 2010) (requiring "a timely, contemporaneous objection at the time of the

alleged error" that is "sufficiently specific to inform the court ofthe perceived error").

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Even if the Fetterman firm had preserved this argument, the opinion of the

Friedrichs' expert was not a change in opinion that prejudiced the Fetterman firm

under Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981). The

Friedrichs disclosed this opinion before trial (R12:2215; R13:2419, 2443). The

Fetterman firm was not prejudiced because it responded with the contrary opinion of

its own expert (T7:779-85).

D. There is no need to remand for the Fourth District to considerwhether the verdict was against the manifest weight of the evidence.

The Fetterman firm also makes a token argument that if this Court quashes the

decision ofthe Fourth District, this Court should direct the Fourth District to consider

the Fetterman firm's argument that the verdict was against the manifest weight of the

evidence. There is no need for this Court to remand for the Fourth District to consider

this issue.

A trial court rules on a motion for new trial based on manifest weight after

"consider[ing] the credibility of the witnesses along with the weight of all the other

evidence." Brown v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999); see also

Ricks v. Loyola, 822 So. 2d 502, 506 (Fla. 2002) (recognizing "that trial courts have

broad discretion when ruling on motions for new trial"). Appellate courts "must

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recognize the broad discretionary authority of the trial judge and apply the

reasonableness test to determine whether the trial judge committed an abuse of

discretion." Brown, 749 So. 2d at 497-98. Where the evidence supporting the jury's

verdict conflicts, the trial court acts reasonably in denying a motion for new trial based

on manifest weight. See Wiggins v. Sadow, 925 So. 2d 1152, 1155-56 (Fla. 4th DCA

2006).

As explained in parts A and B, supra, the Friedrichs presented sufficient

evidence for the jury to decide this issue. The evidence fully supports the verdict.

There is no need to remand for the Fourth District to consider this argument. This

Court should remand with instructions to reinstate the final judgment.

CONCLUSION

This Court should quash the decision of the Fourth District and reinstate the

final judgment for plaintiffs.

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Respectfully submitted,

REBECCA MERCIER VARGAS andJANE KREUSLER-WALSH ofKREUSLER-WALSH, COMPIANI & VARGAS, P.A.501 South Flagler Drive, Suite 503West Palm Beach, FL 33401-5913(561) 659-5455rvargas@kwevpa.comjanewalsh@kwevpa.comeservice@kwevpa.com

andSCOTT B. SMITH andMARGARET M. BICHLER ofLYTAL, REITER, SMITH, IVEY & FRONRATH515 North Flagler Drive, 10th FloorWest Palm Beach, FL 33401ssmith@foryourrights.commbichler@foryourrights.com(561) 655-1990Counsel for petitioners, Robert and Heather Friedrich

By: ((BECCA M CIER V

Florida Bar No. 0150037

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing has been furnished by e-mail this

day of December, 2012, to:

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ELIZABETH K. RUSSORUSSO APPELLATE FIRM, P.A.6101 Southwest 76th StreetMiami, FL 33143e-service@russoappeals.comekr@russoappeals.comAppellate Counsel for respondent,

Fetterman & Associates

JULIE H. LITTKY-RUBINCLARK, FOUNTAIN, LA VISTA,PRATHER, KEEN & LITTKY-RUBIN, LLP

1919 N. Flagler Drive, Suite 200West Palm Beach, FL 33407ilittkyrubin@clarkfountain.comAttorneys for Amicus Curiae, FloridaJustice Association

DANIEL C. METHEKARA BERARD ROCKENBACHMETHE & ROCKENBACH, P.A.1555 Palm Beach Lakes BoulevardSuite 400West Palm Beach, FL 33401-2327dmethe@flacivillaw.comkbrock@flacivillaw.comCounsel for respondent, Fetterman &Associates

By: AREBECCA MERCIER AR SFlorida Bar No. 015003

CERTIFICATE OF FONT

Petitioners' Reply Brief on the Merits has been typed using the 14-point Times

New Roman font.

By LCREBECCA MERCIERFlorida Bar No. 0150037

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