Torts
— Contractors — Injuries on jobsite sustained by worker who fell while
painting ceiling above a second story catwalk — Action against general
contractor for construction project alleging defendant breached its duty to
maintain a safe work environment by failing to install minimum mandatory
guardrails on catwalk as required by Occupational Safety and Health
Administration guidelines — Circumstantial evidence was insufficient to show
precisely where plaintiff was when she fell, what she was doing at time she
fell, what caused her to fall in first place, and whether presence of
guardrails would have prevented fall — Because there was evidence that harm
could have occurred even in the absence of defendant’s conduct, proof of
causation could not be based on mere speculation, conjecture, or inferences
drawn from other non-exclusive inferences — Accordingly, jury could not
reasonably conclude that presence of guardrails would have altered outcome —
Remand for entry of directed verdict in favor of defendant

BROWARD EXECUTIVE BUILDERS, INC., Appellant, v. LILIANA
ZOTA, as Guardian of MERCEDES ZOTA; MIGUEL ZOTA; SUSANA ZOTA; MIGUEL FRANCISCO
ZOTA, Appellees. 4th District. Case No. 4D14-555. May 11, 2016. Appeal from the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter M.
Weinstein, Judge; L.T. Case No. CACE 04003388. Counsel: Raoul G. Cantero and
John-Paul Rodriguez of White & Case LLP, Miami, and Jack T. Frost of Kelley
Kronenberg, Plantation, for appellant. Matthew D. Weissing of Farmer Jaffe
Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, for appellees.

(KLINGENSMITH, J.) Broward Executive Builders, Inc.
(“appellant”) appeals the final judgment entered against it following a jury
verdict in favor of Liliana Zota, as guardian of Mercedes Zota; Miguel Zota;
Susana Zota; and Miguel Francisco Zota (collectively, “appellees”). Appellant
contends that the jury reached its verdict in this case by improperly stacking
inferences. We agree, and reverse.1

In 2004, while painting the ceiling above a second story
catwalk in a home that was under construction, Mercedes Zota fell and suffered
serious injuries. No one witnessed the fall, but Mercedes was found shortly
thereafter lying at the foot of a staircase below the catwalk. At the time of
the accident, Mercedes was using a stepladder and two scaffolds situated upon
the catwalk to reach and paint the ceiling.

The evidence established that Mercedes was responsible for
setting up at least one of the scaffolds, and that neither the scaffolds nor
the catwalk itself had guardrails in place. Appellees alleged that appellant,
as general contractor for the construction project, breached its duty to
maintain a safe work environment by failing to install minimum mandatory
guardrails on the catwalk as required by the applicable Occupational Safety and
Health Administration guidelines, thereby causing Mercedes’ injuries.

Appellees claimed that Mercedes fell from the catwalk
itself, while appellant countered that Mercedes likely fell from either the
stepladder or one of the scaffolds. Because there were no witnesses to the fall
and Mercedes was unable to testify, the parties compensated for this lack of
direct evidence by engaging experts who served as the principal witnesses in
their respective attempts to reconstruct the accident. After the court denied
appellant’s motion for directed verdict, the jury found appellant to be fifty
percent liable for Mercedes’ injuries, while also finding Mercedes herself to
be equally at fault.

We review the denial of a motion for directed verdict de
novo, while considering “the evidence and all inferences of fact in the light
most favorable to the nonmoving party.” See Christensen v. Bowen, 140
So. 3d 498, 501 (Fla. 2014). Although directed verdicts in negligence actions
should be “granted in an especially cautious manner,” Phillips v. Van’s of
Lake Worth, Inc., 620 So. 2d 253, 253 (Fla. 4th DCA 1993), they must be
granted where “the evidence is of such a nature that under no view which the
jury might lawfully take of it, favorable to the adverse party, could a verdict
for the latter be upheld.” Borda v. E. Coast Entm’t, Inc., 950 So. 2d
488, 490 (Fla. 4th DCA 2007) (quoting Little v. Publix Supermarkets, Inc.,
234 So. 2d 132, 133 (Fla. 4th DCA 1970)).

Florida law is clear that:

[A
plaintiff] must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant
was a substantial factor in bringing about the result. A mere possibility of
such causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly balanced, it
becomes the duty of the court to direct a verdict for the defendant.

Sanders v. ERP Operating Ltd. P’ship,
157 So. 3d 273, 277 (Fla. 2015) (alteration in original) (quoting Gooding v.
Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984)).

Additionally, establishing that a defendant’s actions were
the legal cause of a plaintiff’s injury “does not require direct testimony from
the injured person or an eyewitness. . . . Rather, legal cause may be
established by circumstantial evidence, such as the testimony of accident
reconstruction experts . . . .” Brown v. Glade & Grove Supply, Inc.,
647 So. 2d 1033, 1036 (Fla. 4th DCA 1994). We have previously held that in
negligence cases involving circumstantial evidence:

[A]
fact may be established by circumstantial evidence as effectively and as
conclusively as it may be proved by direct positive evidence. The limitation on
the rule simply is that if a party to a civil action depends upon the
inferences to be drawn from circumstantial evidence as proof of one fact, it
cannot construct a further inference upon the initial inference in order to
establish a further fact unless it can be found that the original, basic
inference was established to the exclusion of all other reasonable inferences.

Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla.
4th DCA 2008) (emphasis added) (quoting Nielsen v. City of Sarasota, 117
So. 2d 731, 733 (Fla. 1960)).

Where an inference is based upon circumstantial evidence in
a civil case, it must be the only reasonable inference that can be formed from
that evidence for the plaintiff to build further inferences upon it. See
Voelker v. Combined Ins. Co. of Am., 73 So. 2d 403, 407 (Fla. 1954)
(stating that in cases where inferences are drawn from circumstantial evidence,
“only if the prior or basic inference is established to the exclusion of any
other reasonable theory should another be drawn from it”); see also Stanley,
991 So. 2d at 940. The purpose of this rule against stacking inferences is “to
protect litigants from verdicts based on conjecture and speculation.” Stanley,
991 So. 2d at 940. In a negligence action, if a plaintiff relies upon
circumstantial evidence to establish a fact, fails to do so to the “exclusion
of all other reasonable inferences,” but then stacks further inferences upon it
to establish causation, a directed verdict in favor of the defendant is
warranted. See id. at 941.

For appellees to prevail in this case, the greater weight of
the evidence drawn from the legally sustainable inferences must prove that: 1)
Mercedes fell; 2) she fell from a significant height; 3) she fell from a
certain area on the catwalk; 4) the appropriate and required guardrails would
have prevented the fall from that area on the catwalk; and 5) Mercedes suffered
injuries from that fall.

Several of these inferences could have been reasonably drawn
from the circumstantial evidence presented. The fact that Mercedes suffered a
fall can be presumed to be established to the exclusion of all other reasonable
inferences based on the evidence; that is to say, “such inference is elevated
for the purpose of further inference to the dignity of an established fact.” Voelker,
73 So. 2d at 407. Additionally, the fact that the fall occurred from a height
of several feet was also a reasonable inference, given the nature and extent of
her injuries and the medical expert testimony. This inference can also be elevated
to the same level as an established fact. Id. That Mercedes suffered
injuries as a result of her fall (as opposed to some other potential cause) was
reasonable as well.

However, appellees cannot attach liability to appellant
unless they can show that the guardrails would have prevented Mercedes from
falling. This determination relies upon the inference that Mercedes fell from a
place (and in such a manner) that would have made the presence of the
guardrails on the catwalk efficacious. The problem here is that the
circumstantial evidence did not exclude the reasonable possibility that she
fell from many equally-likely locations in the catwalk area, such as the
stepladder or one of the scaffolds. In fact, there was no evidence presented at
trial that would permit any inference about precisely where Mercedes was when
she fell, what she was doing at the time she fell, or what caused her to fall
in the first place.

We have reviewed similar cases from other district courts,
and find them to be helpful in reaching our decision. In Wong v. Crown
Equipment Corp., 676 So. 2d 981, 983 (Fla. 3d DCA 1996), the Third District
affirmed the trial court’s summary judgment in favor of the defendant, in part
because no one witnessed the decedent’s fall from a stockpicker, and because
the plaintiff failed to produce an accident reconstructionist at trial. The
court stated:

It
is, of course, a fair inference that he fell from a height to his death, but it
is impossible to tell whether he fell from the stockpicker or an adjacent shelf
or what he was doing just before he fell because no one witnessed how this
accident happened; moreover, the plaintiff has no accident reconstruction
expert in the case. It was, therefore, impossible for the plaintiff to prove
that the alleged defect in the stockpicker was in any way causally related to
the plaintiff decedent’s fall; accordingly, the trial court properly entered
summary judgment for the defendants.

Id. at 983.

Although appellees did present testimony from an accident
reconstruction expert during the trial, that expert could not opine as to
whether it was more likely than not Mercedes fell from a particular location.
In essence, his testimony could be summarized as follows: Mercedes fell from a
significant height, and was subsequently injured.

Similarly, in Adkins v. Economy Co., 495 So. 2d 247,
247-48 (Fla. 2d DCA 1986), the plaintiff fell from a scissors-lift work
platform and alleged that the structure was “defective and unreasonably
dangerous because the side railings and chains were not high enough to prevent
a person from falling over the side of the platform.” The Second District also
affirmed summary judgment in favor of the defendant, citing a lack of evidence
as to what caused the fall:

Because
there is no competent evidence, direct or circumstantial, concerning the cause
of the fall or where plaintiff was located or what he was doing when he fell,
for plaintiff’s cause of action to succeed it must be assumed that plaintiff
was standing on the platform inside the railings, that for some reason he fell,
and that the railings were too low to prevent his falling over the railings to
the pavement below. However, other equally reasonable assumptions are possible,
such as that plaintiff was sitting or standing or climbing on the railings, in
which case the alleged low height of the railings would have had no effect on
preventing the fall.

The
plaintiff has the burden of proving his cause of action. In this case the
record before the trial court failed to show the existence of any facts from
which the jury could reasonably infer the cause of the accident.

Id. at 248.

While the circumstantial evidence in this case supports a
finding that Mercedes fell on her head from a height of several feet with no
clear indication of how or why, it does not establish that it is more likely
than not she fell from a certain location on the catwalk because no
guardrails were in place to prevent the fall. Appellees believe that, under the
circumstances, it was more likely than not this occurred, as opposed to some
other explanation. We disagree. There are a myriad of very plausible
explanations and other reasonable inferences that can be drawn from the
circumstantial evidence in this case.

As appellees argue, Mercedes could indeed have fallen from a
location on the catwalk such that the next inference, that the guardrails would
have prevented her from falling, might be permissible. However, she also could
have fallen from the top of the stepladder or the top of one of the scaffolds,
rendering the guardrails’ capacity to prevent her from falling over the edge of
the catwalk much less certain, given that her fall could have originated from a
point above where they would have been situated. Finally, it is not
clear that the guardrails would have stopped Mercedes from falling if she was
ascending or descending the stepladder or one of the scaffolds at the time she
fell. It simply cannot be determined where she was or what she was doing when
the accident occurred, such that all other reasonable possibilities are excluded.2

Of all the questions surrounding Mercedes’ fall, where she
fell from was certainly a basic and important fact to establish. The next
inference regarding the effectiveness of any guardrails was not independent of
this fact. See Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854
So. 2d 1264, 1279 (Fla. 2003) (stating that inference stacking does not occur
where “[e]ach fact inferred is independent of the other”). In a case involving
dependent facts, where circumstantial evidence is utilized to establish an
inference, that inference must be exclusively established as the only
reasonable inference before a subsequent dependent inference can be considered.
Although the jury could have inferred where Mercedes fell from based on the
circumstantial evidence, it would not have been the only reasonable conclusion.
Thus, the jury could not pyramid upon that decision to answer the next issue
ripe for consideration in the inferential chain: whether the required
guardrails would have prevented her fall had they been in place.

The circumstances of Mercedes’ injury are undeniably tragic.
Nonetheless, because there is no evidence of how she fell or where exactly she
fell from, it would be complete speculation and conjecture for any trier of
fact to conclude that the lack of guardrails contributed to causing her
injuries. The burden of proof rested upon appellees to prove appellant’s
negligence. Where there is evidence that the harm could have occurred even in
the absence of the appellant’s conduct, proof of causation cannot be based on
mere speculation, conjecture, or inferences drawn from other non-exclusive
inferences. Although we recognize that a plaintiff need not prove causation
with absolute certainty, it must at least introduce evidence “which affords a
reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a substantial factor in bringing about the
result.” Sanders, 157 So. 3d at 277 (quoting Gooding, 445 So. 2d
at 1018). Proof that raises mere speculation, suspicion, surmise, or conjecture
is not enough to sustain a plaintiff’s burden of persuasion.

In our system of jurisprudence, we require more than just
dartboard decision-making by juries to sustain verdicts. Allowing a jury to
derive inferences from unproven allegations serves no purpose other than to
erode a plaintiff’s burden of proof, and to raise rank speculation to the same
status as established fact. Without some evidence to show from where Mercedes
fell to the exclusion of the other various reasonable possibilities, appellees
are unable to establish that a scenario attaching liability to the appellant is
more likely to have occurred than one which exonerates them. No jury under
these facts could have drawn a sustainable inference about where Mercedes was
or what she was doing at the time she fell. Accordingly, a jury could not
reasonably conclude that the presence of the guardrails would have altered the
outcome. We therefore reverse for entry of a directed verdict in favor of
appellant.

Reversed and Remanded. (CIKLIN, C.J., and WARNER,
J., concur.)

__________________

1In light of this conclusion, we
decline to address appellant’s other issues.

2We could fill several pages of this
opinion discussing scenarios which are contrary yet equal to appellees’ account
of the accident. However, our analysis is limited to considering only those
other possible inferences that were indeed reasonable under the
known facts, and in “accord[ ] with logic and reason or human experience.” See
Voelker, 73 So. 2d at 406.

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