Opinion
No. 98-00683
Opinion filed March 5, 1999.
Appeal from the Circuit Court for Hillsborough County; Sam D. Pendino, Judge.
Andrew J. Rodnite, Jr., of Park, Bugg, Rodnite, Ossian Zdravko, P.A., Clearwater, for Appellant.
Scott S. Katz and Denise Anderson Byrd, Tampa, for Appellees.
Appellant, James W. Lich, challenges the final summary judgment entered against him and in favor of appellees, N.C.J. Investment Company (N.C.J.) and Radiant Properties Management, Inc. (Radiant). We affirm.
Mr. Lich's employer, Electronic Merchant Systems (Electronic), leased office space from appellee/N.C.J. in an office building that was owned by N.C.J. and managed by appellee/Radiant. In the office space leased by Electronic, there was a sliding glass interior window approximately 4'x4' and described as a "pass-through" window, the type that is commonly seen in reception areas to separate a receptionist from the general public. The only evidence before us and before the trial judge was that the window had existed in the building unaltered since prior to N.C.J.'s purchase of the building. The evidence is undisputed that neither N.C.J. nor Radiant was aware of any problems with the window. The evidence is also undisputed that for approximately one week prior to the incident in which Mr. Lich was injured, his employer and fellow employees were aware that the sliding glass in the window was jamming or sticking in its track. It is also undisputed that Mr. Lich's fellow employees who were charged with notifying appellees of any problems with the building did not do so.
On August 28, 1996, in an effort to close the window, Mr. Lich attempted to slide the window in its track, and the window glass broke, causing Mr. Lich's injuries. Mr. Lich filed suit against N.C.J. and Radiant alleging negligence as follows:
(a) They knew or should have known that this interior sliding window was defective;
(b) With the knowledge that the interior sliding window was, in fact, defective, they were negligent in failing to replace the interior sliding window;
(c) They failed to inspect the interior sliding window;
(d) They failed to properly maintain the interior sliding window;
(e) They failed to select an interior sliding window which could not in the ordinary course of events break and cause great injury to tenants or others using the premises;
(f) They failed to replace the interior sliding window when they knew or should have known that either through design, age or wear and tear, the interior sliding window was defective;
(g) They failed to warn the plaintiff not to use the interior sliding window.
The record before us and before the trial court is sparse. There is no evidence that the sliding glass window failed to conform to code requirements or that it was defective in any way. There is evidence in the record which indicates that neither N.C.J. nor Radiant had anything to do with the installation of the window as it was already in the building when purchased by N.C.J. Therefore, they did not "select" the window. If there were any defects in the window, the evidence is undisputed that they were latent and unknown to appellees.
Appellees filed three affidavits in support of their motions for summary judgment. Two of those affidavits were from the respective real estate directors for N.C.J. and Radiant, each of which affirmed that N.C.J. and Radiant had no knowledge of any problems with the window.
The third affidavit was that of Julie Clark, the office manager for Mr. Lich's employer, Electronic. Ms. Clark's affidavit stated as follows:
1. I am over eighteen (18) years of age and am competent to testify to the facts stated herein from personal knowledge.
2. My name is Julie Clark. I am an office manager of Electronic Merchant Systems and was employed with James W. Lich in August of 1996. My duties included reporting problems with the building space to the owner of the building through the property manager. I am the only individual at Electronic Merchant Systems with this duty. Electronic Merchant Systems leases property located at George Road in Tampa, Florida.
3. On or about the third week of August 1996, I noticed that the subject sliding window was experiencing some problems. When I attempted to slide the window, it would stick. I did not report this problem to the management company, Radiant Properties Management, Inc., or the owner of the building, N.C.J. Investment Company, because this problem had existed for only 1 week and the window was not necessary to conduct business. No one else at Electronic Merchant Systems reported the problem to the management company or the owner of the building. The window had operated properly for approximately one (1) year until this point.
We conclude that the record before this court and the trial judge conclusively demonstrates that no material issues exist upon which Mr. Lich's cause of action can be sustained.
Affirmed.
GREEN, J., Concurs.
ALTENBERND, J., Dissents with opinion.
It may be humane to shoot this horse today, but I would let it hobble a few more furlongs down the track. The summary final judgment entered in this case is at least premature.
James W. Lich alleges that in August 1996 he was working for his employer, who leased office space from N.C.J. Investment Company, when he reached over to close a sliding interior window. Without warning, the window broke, and he sustained severe injuries. Apparently, he was cut by the broken glass. In June 1997, Mr. Lich sued N.C.J., as the owner of the premises, and Radiant Properties Management, Inc., as the management company. His second amended complaint alleges that N.C.J. and Radiant were negligent because one or both entities failed to correct a known defect and because they selected improper glass for the window. Admittedly, this pleading could be more specific in its allegations, but the sufficiency of the pleading is not at issue.
N.C.J. and Radiant moved for summary judgment in August 1997. Their motions were supported by only three affidavits. The affidavits establish that Mr. Lich's employer leased this space from N.C.J. The employer was responsible for reporting maintenance problems to Radiant. N.C.J. did not participate in day-to-day management of its building. One of Mr. Lich's co-employees noticed that the window was sticking about a week before this accident, but the employer did not notify Radiant. Prior to that time, the window had functioned without problem. Radiant also filed unexecuted answers to interrogatories identifying ten witnesses and claiming that Mr. Lich knew the window was stuck and forced it, causing the accident.
The record does not disclose the normal function of this window, but it appears likely the window is the type of sliding window that commonly separates a receptionist from a waiting area. This record contains no deposition, photograph, lease, or blueprints. Neither the trial court nor this court knows who installed the window, when it was installed, or who ordered the installation. We know nothing about the specifications of the glass in the window. At best, we have hearsay evidence concerning events at the time of the accident and the nature of Mr. Lich's injuries.
The only information I can find in this record suggesting the window had existed in the building unaltered since prior to N.C.J.'s purchase of the building are us executed answers to interrogatories. The interrogatories themselves are not in the record.
N.C.J. filed unexecuted answers to interrogatories, responding as follows to questions numbered 18, 19, and 21:
18. Unknown. They were in the building when N.C.J. bought the building.
19. [Objection to form] . . . Without waiving any objection, we do not believe the interior window was installed by our employees.
. . . .
21. Unknown. We believe the windows were in the building when Radiant took management of the building. Radiant filed unexecuted answers to interrogatories, of the same number as those replied to by N.C.J., responding as follows to undisclosed questions numbered 18, 19 and 21:
18. Unknown.
19. [Objection to form] . . . Without waiving any objection, we do not believe the interior window was installed by our employees.
. . . .
21. Unknown. We believe the windows were in the building when Radiant took management of the building.
Mr. Lich filed nothing in opposition to the motion for summary judgment. The trial court granted the motion and entered the final summary judgment that is now on appeal.
Although a partial summary judgment may have been proper, I cannot rule out the possibility that one or both defendants are responsible for selecting a dangerous variety of window pane when safety glass, tempered glass, or a thicker pane may have been required either by the building code or common sense. Such a defect could have been latent.
If Florida followed the federal guidelines for summary judgment described in Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), perhaps this summary judgment would be correct. The Florida Supreme Court, however, has chosen to place a much higher burden on the party moving for summary judgment, stating: "[T]he party moving for summary judgment must show conclusively that no material issues remain for trial." Visingardi v. Tirone, 193 So.2d 601, 604 (Fla. 1966). Judge Scheb, writing for this district, emphasized that "even the slightest doubt that an issue might exist" renders summary judgment improper. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979). Although it may seem natural to expect that a party confronted by a motion for summary judgment would submit some evidence in opposition, the law is very clear that the opposing party has no obligation to take any action until the movant has met the heavy burden of proving a negative conclusively. See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966).
At the hearing on the motion for summary judgment, Radiant and N.C.J. argued vigorously that depositions had been taken and that it was Lich's obligation to file any deposition that might conflict with the few facts established in their affidavits.
Mr. Lich's counsel trusted the rhetoric of Holl and Snyder. Trust in the law is good. However, in an era when there is increasing pressure upon the judiciary to control frivolous lawsuits, real and imagined, our legal rhetoric and our legal process do not always align. In the current climate, plaintiffs' counsel would do well to file Celotex-style affidavits and other evidence in opposition to motions for summary judgment.