       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           DAVIE PLAZA, LLC,
                               Appellant,

                                     v.

      EMMANUEL IORDANOGLU, as personal representative of the
                Estate of MIKHAEL MAROUDIS,
                            Appellee.

                              No. 4D16-1846

                           [December 13, 2017]


   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. 11-
004370CACE13.

  Hinda Klein of Conroy Simberg, Hollywood, and Jan D. Langer of the
Law Office of Hugh Behan, Hollywood, for appellant.

  Philip M. Burlington and Adam J. Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, and John F. Billera of Billera Law,
PLLC, Boca Raton, for appellee.

WARNER, J.

   Davie Plaza, LLC appeals a final judgment in a premises liability case
involving the plaintiff’s fall from a ladder. The plaintiff’s estate claimed
that the fall was due to defects in the premises. Davie Plaza contends that
the court erred in denying its motion for directed verdict, when the
evidence presented by the plaintiff failed to establish the cause of the fall
or even precisely where the fall occurred. We agree that the circumstantial
evidence was insufficient and the court erred in denying the motion. We
reverse for a judgment in favor of Davie Plaza.

    Davie Plaza owned a shopping center which included space leased by
84 Diner, its tenant. In 2007, Mikhael Maroudis, the plaintiff, worked for
84 Diner as a handyman. One night in June of that year, the supervisor
of the diner asked Maroudis to go up on the roof to clear water, as the roof
was leaking into the restaurant. The diner’s roof had two levels. In order
to get to the area which was leaking, Maroudis had to ascend to the first
level of the roof over part of the kitchen, haul up the ladder, and then
ascend to the upper part of the roof where the water was collecting. After
clearing the water, Maroudis descended from the upper roof and then
repositioned the ladder to descend from the lower roof to the ground. As
he descended he fell backwards to the ground, causing serious injuries.

   In 2011, Maroudis filed suit against Davie Plaza alleging his status as
a business invitee on the property. The suit alleged that the property had
a latent defect in the premises, namely “uneven, cracked and defective
exterior walkway/parking lot located in the area where [Maroudis] placed
his ladder.” Maroudis alleged the uneven area “collapsed underneath the
foot of [Maroudis’s] ladder, causing him to fall.” During the course of the
proceedings, Maroudis testified regarding the incident at several
depositions, and he also gave a recorded statement. The statement and
depositions were used at trial, because Maroudis died of unrelated causes
in 2013, and his estate was substituted as the party plaintiff.

    At trial, through the depositions, Maroudis testified that when his
supervisor directed him to go up on the roof to clear the water, it was dark
and rain had started to fall. He went out the back of the restaurant to see
how he could get up to the higher roof. He then used the diner’s twelve-
foot A-frame ladder. Instead of opening it as he normally would, he leaned
the ladder against the side of the building, and he ascended the ladder to
the first roof. He then pulled up the ladder and leaned it against the wall
leading to the second roof. He ascended both levels without incident. After
completing his task, he descended the ladder to the first roof. From the
first roof, he then repositioned the ladder on the ground, again leaning it
against the building. As he descended it, he fell backwards landing on the
cement, causing injuries.

    Maroudis testified that he placed the ladder on a concrete surface to
the right side of the door as he exited, which would be the left side of the
door as one faced it from the exterior. This corresponds to the testimony
of his friend at trial, who went by the diner with him sometime after the
fall. At that time Maroudis identified the area where he fell, which the
witness pointed out was to the left of the door when viewed from the
exterior. Pictures entered as exhibits also confirm that a concrete sidewalk
is to the left of the door as viewed from the exterior. Maroudis did not look
at the ground as he placed the ladder, but he made sure that it was secure
by moving it left to right. Although he usually had spotters when he was
on a ladder, he did not use one that night. He did not open the A-frame
ladder and did not observe any defects in the ladder.


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   When he was placing the ladder on the ground to descend from the
roof, he again leaned it against the building and checked the security of
the ladder with his hands. He went down two steps when he lost his
balance and fell backwards and to the left side. He testified that he did
not know what made him fall, “maybe the floor.” As to the ground, he
noted that the area was not defective or broken but was not completely
smooth and flat. Later in the same deposition, he looked at a picture and
identified an area several feet from the door as covered in asphalt. He then
testified that both feet of the ladder were on the asphalt. Then he stated
that he placed the ladder on the dividing line between the asphalt and
concrete. He said he placed his ladder within one foot of the door both
going up and coming down. And after looking at the picture, he indicated
that the area in the picture looked as though it had changed since the date
of his fall.

    At his deposition, the picture which he was viewing was not identified.
Other pictures admitted into evidence showed a concrete sidewalk on the
left side of the door and a sloping concrete pad which ends at a grate
several feet from the door. The property manager for Davie testified in her
deposition that asphalt covered the area where the grates were now
pictured.

    An expert on code violations testified for the Estate. He was asked to
assume that the area in the vicinity of the accident had not changed since
the time of Maroudis’s fall. He testified that he saw many uneven surfaces
in the area which were code violations. However, he never testified as to
the cause of the fall. During cross-examination, he admitted that he did
not know where Maroudis placed the ladder, as Maroudis had testified to
different places in his deposition, including on concrete, on asphalt, and
on the dividing line between concrete and asphalt. The expert noted that
there was no asphalt upon his inspection. While he did not think that
Maroudis’s use of the A-frame ladder without opening it was necessarily
improper, he also did not know the angle at which Maroudis would have
placed the ladder. In his direct testimony he explained that the angle of
the ladder would affect its stability. Further, he never saw the ladder, so
he could not rule out a defect in the ladder. In sum, the expert did not
give any opinion as to the cause of the fall. A defense expert testified that
the use of the A-frame ladder was improper. He also determined that the
area to the left of the door where Maroudis testified he placed his ladder
was not an area of defective concrete, but if the feet were placed near the
crack between the grate and the concrete, the ladder would have been at
an improper angle.



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   Davie Plaza moved for directed verdict at the close of the Estate’s case
and at the close of all the evidence, contending that the Estate’s case
consisted of stacking inference upon inference. Because the Estate could
not show precisely where Maroudis placed his ladder when descending
from the roof, it could not show that he placed it in an area of the ground
that was dangerous or uneven. Further, an equally reasonable inference
was that the angle at which he leaned the unopened ladder against the
building caused it to be unsteady. The court denied the motions. The jury
returned a verdict in favor of the Estate, awarding an extraordinarily high
amount of damages. Davie Plaza renewed its motion for directed verdict
in post-trial motions, but it was again denied. From the final judgment,
Davie Plaza appeals.

   An order denying a motion for directed verdict is reviewed de novo.
Geico v. Harvey, 208 So. 3d 810, 814 (Fla. 4th DCA 2017). The “appellate
court must view the evidence and all inferences in a light most favorable
to the non-movant, and should reverse if no proper view of the evidence
could sustain a verdict in favor of the non-movant.” Weinstein Design Grp.,
Inc. v. Fielder, 884 So. 2d 990, 997 (Fla. 4th DCA 2004).

   The standard jury instructions set for the required elements of proof in
a premises liability claim are:

      [W]hether (defendant) [negligently failed to maintain [its]
      premises in a reasonably safe condition], [or] [negligently
      failed to correct a dangerous condition about which
      (defendant) either knew or should have known, by the use of
      reasonable care,] [or] [negligently failed to warn (claimant) of
      a dangerous condition about which (defendant) had, or should
      have had, knowledge greater than that of (claimant)]; and, if
      so, whether such negligence was a legal cause of [loss] [injury]
      or [damage] to (claimant, decedent or person for whose injury
      claim is made).

Fla. Std. Jury Inst. (Civ.) 401.20 (asterisk deleted). Davie claims that the
Estate failed to prove that any negligence on its part was a legal cause of
injury to Maroudis. The Estate’s case was based on circumstantial
evidence, as Maroudis did not know what made him fall.

   To prove a prima facie case of negligence and an ultimate fact, such as
proximate cause, circumstantial evidence can be used “as effectively and
as conclusively” as direct positive evidence, but if a party

      depends upon the inferences to be drawn from circumstantial

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      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.

Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960). Davie Plaza
argues that the initial inference that Maroudis placed his ladder on an
uneven surface or defect in the premises was never proved to the exclusion
of other reasonable inferences, because the Estate could not establish
where Maroudis placed his ladder, and he did not know what made him
fall. Other equally reasonable inferences could be made as to why he may
have fallen.

    We agree with Davie that the Estate did not and could not establish the
initial inference to the exclusion of all other inferences precisely because
of Maroudis’s conflicting testimony regarding where he placed the ladder
when descending to the ground. At first, he testified that he placed it to
the left of the exit door on concrete. Both the Estate expert as well as the
defense expert agreed that the area was level, although the Estate expert
contended that it was a very narrow area before it sloped away from the
building. But later Maroudis said both feet of the ladder were on asphalt,
which the experts discounted because they had seen no asphalt and had
assumed that there had been no changes to the property since the
accident. However, the property manager testified that asphalt used to be
in the place of where a grate appeared in the pictures exhibited to the jury.
Maroudis himself noted that the pictures he was shown at his deposition
appeared as though the area had changed. If he had placed both feet on
where the grate was, which was formerly covered with asphalt, then the
angle at which the ladder would have been placed would have been
improper. Moreover, no one could testify that the asphalt, which was no
longer present, was a dangerous condition. Nor could anyone testify that
the crack between the asphalt and the concrete, another place Maroudis
said he placed his ladder, was defective. And no one, not even Maroudis,
testified to the veracity of the allegation of the complaint that an uneven
area “collapsed” under the foot of the ladder. Furthermore, Maroudis
testified that he checked the ladder to determine that it did not move before
descending, thus also negating the inference that he placed the ladder on
an uneven surface, causing him to fall.

   In short, the inference that Maroudis placed his ladder on a defect in
the premises cannot be made to the exclusion of all other reasonable
inferences. He could have placed his ladder on even concrete to the left of
the door. Or he could have placed his ladder on asphalt but at an improper

                                     5
angle. In either case, no defect in the premises would be a cause of the
fall. Absent clarity as to where Maroudis placed the ladder, one can only
speculate where the ladder was placed, and thus, whether a defect in the
premises at that location was even present. A finding of liability cannot
be based on such speculation.

    This case is somewhat similar to Miller v. Aldrich, 685 So. 2d 988, 989
(Fla. 5th DCA 1997), where the plaintiff was injured when he fell off a
ladder while working at a homeowner’s residence, there were no witnesses,
and the plaintiff testified he had “no idea of what happened.” The Fifth
District concluded the trial court correctly granted summary judgment for
the defendants because “[t]he fact that an accident occurred does not, in
an ordinary case, establish breach of a duty by another party, or
causation.” Id. at 990. On the day before the accident, the defendant saw
the plaintiff “shimmying the ladder side to side while standing on it, in
order to move it,” and he warned the plaintiff to not use the ladder
improperly. Id. at 989. The Estate argues Miller is distinguishable
because, in that case, there was no evidence that the ladder was defective
or that the homeowner was negligent in another way, whereas here, there
is evidence of Davie Plaza’s code violations. However, a plaintiff must show
both the defendant’s breach of a duty and how that breach proximately
caused the plaintiff’s injuries. Id. at 989-90. Without knowing that the
ladder was placed upon a defective condition in the premises, causation
cannot be established. See also Gelco Convention Servs. v. Pettengill, 710
So. 2d 581, 582-84 (Fla. 4th DCA 1998); Hurst v. Astudillo, 631 So. 2d
380, 381 (Fla. 3d DCA 1994).

   The Estate most strongly relies on Ortiz v. Lorie, 921 So. 2d 868, 869
(Fla. 4th DCA 2006), where the plaintiff fell off a ladder while cleaning the
defendant homeowner’s roof and could not remember why the accident
happened. The ladder had been supplied to him by the homeowner. Id.
Plaintiff sued on a theory of negligence that a principal has a duty to
assure that any instrumentalities which it provides to an independent
contractor are reasonably safe for use. Id. at 870. An expert testified by
way of affidavit that he could look at pictures of the ladder and conclude
that it was improperly assembled, and thus, defective. Id. at 869. We
reversed a summary judgment granted to the homeowner because of the
evidence of defect in the ladder, despite the plaintiff’s inability to remember
the accident, where the circumstantial evidence showed that the ladder
was defective, and the plaintiff fell while on the defective ladder. Id. at
870-71. For purposes of summary judgment, where it is the duty of the
homeowner to either conclusively refute his own negligence or show that
the plaintiff’s negligence was the sole proximate cause of his injuries, the
defendant had not carried that burden. Id. The Estate analogizes Ortiz to

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this case, contending that the mere fact that Maroudis did not know what
made him fall does not defeat his cause of action. While we agree with
that contention, in Ortiz the plaintiff showed that he had been supplied
with a defective ladder and he fell, thus establishing the elements of the
cause of action. The homeowner had not negated his own negligence nor
shown that the fall was due solely to the plaintiff’s own negligence. Here,
on the other hand, while the Estate may have shown defects in the
premises, it did not show that Maroudis placed the ladder on a defective
condition in the premises. This initial inference was not proved to the
exclusion of all other inferences.

   Ortiz relied on Majeske v. Palm Beach Kennel Club, 117 So. 2d 531 (Fla.
2d DCA 1959), also a summary judgment case, where the plaintiff fell while
descending stairs at a dog track, although she did not remember the cause
of the fall. An architect testified that the stairs were of varying height
which an architect opined created a dangerous condition. Id. at 532. In
reversing a summary judgment, the supreme court determined that the
fact that the plaintiff could not remember the fall would not defeat her
claim. Id. at 533-34. Evidence that she was descending stairs which the
expert opined constituted a dangerous condition was sufficient to state a
prima facie case. Id. at 534. Just as the plaintiff in Ortiz was descending
the defective ladder, the plaintiff in Majeske was descending the stairs
which were in the dangerous condition. In contrast, the inference that
Maroudis placed the ladder on a defect in the premises cannot be made to
the exclusion of other equally reasonable inferences.

    For the foregoing reasons, we conclude that the trial court erred in
denying the motion for directed verdict. We reverse and remand for entry
of judgment for appellant Davie Plaza. Because of our disposition on the
directed verdict, we do not address the remaining issues raised.

LEVINE, J., and BUCHANAN, LAURIE E., Associate Judge, concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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