           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                   FOURTH DISTRICT

                   BROWARD EXECUTIVE BUILDERS, INC.,
                              Appellant,

                                           v.

     LILIANA ZOTA, as Guardian of MERCEDES ZOTA; MIGUEL ZOTA;
              SUSANA ZOTA; MIGUEL FRANCISCO ZOTA,
                              Appellees.

                                    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.

  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.


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

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   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.


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    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.

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   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.



                                      5
   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

2 We 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.

                                      6
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.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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