             Case: 14-12972   Date Filed: 05/06/2015   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-12972
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:13-cv-21837-CMA



RENE LEONCIO,
HEIDI LEONCIO,

                                                          Plaintiffs - Appellants,

                                     versus

LOUISVILLE LADDER, INC.,
f.k.a. Davidson Ladder Company,

                                                          Defendant - Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                                  (May 6, 2015)

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Plaintiffs Rene and Heidi Leoncio appeal the district court’s entry of

summary judgment in favor of Louisville Ladder, Inc. Mr. Leoncio was injured

when a ladder designed and manufactured by Louisville Ladder gave way beneath

him while he was removing Christmas lights from his home. He filed this lawsuit

in state court, bringing claims for strict liability, negligence, and loss of

consortium. Louisville Ladder removed the case to federal court.

      The district court granted partial summary judgment to Louisville Ladder for

the claims based on a failure-to-warn theory of liability. The court found that Mr.

Leoncio’s deposition testimony clearly established his failure to read the warning

labels on the ladder. Although Mr. Leoncio filed an affidavit stating that he had

read the labels, the district disregarded it as a sham affidavit because it was “in

direct contradiction with his earlier deposition testimony” and was not filed until

after the defendant moved for summary judgment. Partial Summary Judgment

Order, ECF No. 91 at 8. The affidavit was filed four months after Mr. Leoncio’s

deposition and three days before the plaintiffs’ response to the defendant’s

summary judgment motion was due. Mr. Leoncio never attempted to correct his

deposition through errata sheets or otherwise.

      The district court further rejected the plaintiffs’ argument that, even

assuming Mr. Leoncio failed to read the warnings, Louisville Ladder could be




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liable for his injuries nonetheless. Under Florida law, 1 however, “‘[w]here the

person to whom the manufacturer owed a duty to warn . . . has not read the label,

an inadequate warning cannot be the proximate cause of the plaintiff’s injuries.’”

Id. at 10 (quoting Lopez v. So. Coatings, Inc., 580 So. 2d 864, 865 (Fla. 3d DCA

1991). The district court therefore granted summary judgment on the claims

“predicated on Defendant’s failure to provide an adequate warning,” but allowed

the design defect, manufacturing defect, and loss of consortium claims to proceed.

Id. at 10. The plaintiffs later decided not to pursue these remaining claims, and the

district court entered final judgment in favor of Louisville Ladder.

       The plaintiffs repeat the same arguments on appeal.2 We agree with the

district court’s reasoning in its partial summary judgment order. Mr. Leoncio’s

deposition testimony unambiguously established that he had never read the

warning labels on the ladder. His self-serving, contradictory affidavit filed after

Louisville Ladder moved for summary judgment was insufficient to create an issue

of material fact. Florida law is clear that Mr. Leoncio’s failure to read the warning

       1
          The district court implicitly found that Florida law applies, and the parties did not
challenge that determination below or on appeal. Accordingly, we will apply Florida law. Cavic
v. Grand Bahama Dev. Co., Ltd., 701 F.2d 879, 882 (11th Cir. 1983).
        2
          The plaintiffs also argue on appeal that there were genuine issues of material fact
regarding whether the warning label was adequate because it (1) was inconspicuous and (2) did
not address the danger of inverted positioning of the ladder. These arguments are arguably
waived. See Order Denying Motion for Reconsideration, ECF No. 103 at 3. Even if not waived
and not foreclosed by Florida law on proximate cause, these arguments fail because Mr. Leoncio
admitted that he had seen the warning label, and the warning label clearly shows the correct
positioning of the ladder with the foot grips on the ground and the fly above the base, with
arrows pointing to the locks where the fly overlaps the base.
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cuts off Louisville Ladder’s liability based on the alleged inadequacy of the

warning. Id. We therefore affirm the district court’s judgment.

      AFFIRMED.




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