Lombard v. Exec. Elevator Serv., Inc., 545 So. 2d 453 (Fla. 3d DCA 1989). · Go Syfert
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Lombard v. Exec. Elevator Serv., Inc., 545 So. 2d 453 (Fla. 3d DCA 1989). Cases Citing This Book View Copy Cite
16 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Abundant Living Citi Church, Inc. v. Abundant Living Ministries, Inc. (fladistctapp, 2017-03-08)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Abundant Living Citi Church, Inc. v. Abundant Living Ministries, Inc. (2×)
Fla. Dist. Ct. App. · 2017 · confidence medium
Elevator Serv., 545 So. 2d 453, 455 (Fla. 3d DCA 1989) (disapproving use of pretrial conference to take testimony to dispose of case without summary judgment notice).
cited Cited as authority (rule) University of Florida Board of Trustees v. Stone
Fla. Dist. Ct. App. · 2012 · confidence medium
See Fla. Dept. of Transp. v. Armadillo Partners, Inc., 849 So.2d 279, 288-89 (Fla.2003); Lombard v. Executive Elevator Serv., Inc., 545 So.2d 453, 454-55 (Fla. 3d DCA 1989).
discussed Cited as authority (rule) FLORIDA DOT v. Armadillo Partners, Inc.
Fla. · 2003 · confidence medium
See City of Vero Beach v. Schwey, 308 So.2d 178 (Fla. 4th DCA 1975) (holding that differing features of a comparable sale of real property were not a sufficient basis to reject expert testimony in an eminent domain proceeding, instead the differences went to the amount of weight to be afforded by the jury); see also White v. Westlund, 624 So.2d 1148, 1151 (Fla. 4th DCA 1993) (holding that qualifications placed on a medical expert's opinion are matters of weight, not admissibility); Lombard v. Executive Elevator Service, Inc., 545 So.2d 453, 455 (Fla. 3d DCA 1989) (holding that summary judgment…
discussed Cited as authority (rule) Farrell v. Republic of Colombia (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 1991 · confidence medium
This case is distinguishable from Lombard v. Executive Elevator Service, 545 So.2d 453 (Fla. 3d DCA 1989), where we disapproved "the practice of using a pretrial conference to take testimony for the purpose of disposing of a case on the court’s unnoticed summary judgment motion.” Id. at 455 (emphasis added).
cited Cited "see" Orpe v. Carnival Corp.
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Lombard v. Executive Elevator Serv., Inc., 545 So.2d 453 (Fla. 3d DCA 1989); Dragon v. Grant, 429 So.2d 1329 (Fla. 5th DCA 1983); H.K.
cited Cited "see" United States Fidelity & Guaranty Co. v. State Supply Co.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Lombard v. Executive Elevator Serv., Inc., 545 So.2d 453 (Fla. 3d DCA 1989); but see Sharpe v. Sentry Drugs, Inc., 505 So.2d 618 (Fla. 3d DCA 1987) (distinguished in Lombard).
discussed Cited "see, e.g." Fouts v. Bowling
Fla. Dist. Ct. App. · 1992 · signal: see also · confidence medium
Searle & Co., 530 So.2d 428, 430-431 (Fla.1st DCA 1988); Rice v. Kelly, 483 So.2d 559, 560 (Fla.4th DCA 1986); Dailey v. Multicon Development, Inc., 417 So.2d 1106 (Fla.4th DCA 1982)); see also Lombard v. Executive Elevator Serv., 545 So.2d 453 *96 (Fla.3d DCA 1989).
Retrieving the full opinion text from the archive…
Martha LOMBARD, Appellant,
v.
EXECUTIVE ELEVATOR SERVICE, INC., Appellee.
87-2605.
District Court of Appeal of Florida, Third District.
Jun 20, 1989.
545 So. 2d 453
Ferguson, Cope and Levy.
Cited by 13 opinions  |  Published

[*454] Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Broad & Cassel, for appellant.

Adams, Hunter, Angones, Adams, Adams & McClure and Christopher Lynch, Miami, for appellee.

Before FERGUSON, COPE and LEVY, JJ.

FERGUSON, Judge.

Martha Lombard instituted this lawsuit against the Public Health Trust of Dade County, Florida, d/b/a Jackson Memorial Hospital, and Executive Elevator Service, Inc. for injuries sustained when she tripped on a ledge and fell while exiting a hospital elevator. The ledge was exposed four to five inches because the elevator was not level with the floor. At the time of the accident, Mrs. Lombard, an elderly woman, was accompanying her husband, a patient undergoing treatment. He was being wheeled on a stretcher by a hospital employee. Her complaint alleged theories of ordinary negligence and res ipsa loquitur. This appeal is brought from a summary final judgment entered in favor of Executive Elevator.

Pursuant to the trial court's practice, this case, scheduled for a jury trial, was set for an August 26th, 1987, pre-trial conference. The court instructed plaintiff's counsel to make a proffer of the evidence he intended to produce to prove negligence on the part of the defendants. In the course of that involuntary proffer, counsel was cross-examined at length by the court. Because the trial judge, apparently, was not satisfied with counsel's grasp of the expert evidence, he "requested" that plaintiff's expert witness be produced the following Wednesday, September 2nd, for a "live proffer."

In reluctant compliance with the request, the plaintiff's expert witness, Lawrence E. White, was produced whereupon he made a brief presentation and was, thereafter, cross-examined by the trial court for over an hour. Mr. White gave several theories in support of his conclusion that the elevator misleveling was the fault of the defendant, Executive Elevator, including (1) the defendant permitted the elevator to remain in service with one of its six hoist ropes missing in violation of safety procedures, and (2) the failure to correct the repeated mislevelings of the same elevator constituted improper maintenance. The court ruled that since "[t]he witness was unable to testify what specific malfunction of the elevator caused the incident," the testimony would be inadmissible. On its own motion, the court entered a summary judgment for Executive Elevator.

Lombard contends that the opinion testimony of Mr. White should not have been excluded since it met all of the requirements of sections 90.702-90.705, Florida[*455] Statutes (1987), in that (1) the witness was qualified to render an expert opinion, (2) his opinions were based on evidence which would have been presented at trial, (3) his conclusion was premised on data of a type reasonably relied on by experts on the subject and would have assisted the trier of fact in understanding the evidence and determining the facts in issue, and (4) the undisputed facts established a sufficient basis for the expert opinion. We agree.

The trial court's interrogation of Lombard's counsel and the expert witness related only to the weight to be given the opinion testimony of Mr. White and not to its admissibility. See H.K. Corp. v. Estate of Miller, 405 So.2d 218 (Fla. 3d DCA 1981) (sufficiency of the facts required to form an opinion would normally be decided by the expert himself; any deficiency related to weight rather than admissibility of his opinion). It is exclusively a function of the trier of fact to weigh the evidence. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Further, the inability of an expert to "pinpoint the exact cause" of an elevator malfunction is not fatal to a plaintiff's cause of action. Davis v. Otis Elevator Co., 515 So.2d 277 (Fla. 5th DCA 1987), rev. denied, 520 So.2d 585 (Fla. 1988).

We disapprove the practice of using a pretrial conference to take testimony for the purpose of disposing of a case on the court's unnoticed summary judgment motion.[1] Two types of pretrial proceedings may be scheduled by the court on its own motion — a case management conference and a pretrial conference. Fla.R.Civ.P. 1.200(a), (b). The pretrial conference rule authorizes the trial judge to take specified administrative actions to control and expedite the subsequent course of the case. Summary judgments, as provided for in Florida Rule of Civil Procedure 1.510, are not included in actions authorized under the pretrial procedure rule.

Further, summary judgment procedures, which are necessarily in derogation of the constitutionally protected right to a fair and full trial, should be applied with special caution in negligence actions where the showing of negligence is dependent on expert testimony. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). The defendant, Executive Elevator Service, Inc., did not prove conclusively, as required, the non-existence of any material issues of fact on the negligence question. In fact the defendant's counsel conceded, on the record, quite correctly, that the court's dissatisfaction with the expert witness's testimony went to the weight of the evidence.

The summary judgment is reversed and the cause is remanded for a jury trial.

1 The appellee suggests that we approved this procedure in Sharpe v. Sentry Drugs Inc., 505 So.2d 618 (Fla. 3d DCA 1987). Sharp is clearly distinguishable because that procedure, apparently, was agreed to, and the evidence before that court was by way of a true proffer rather than compelled testimony, did not involve expert testimony, and required the court to apply only the undisputed facts in making a determination whether there was a violation of a particular provision in a lease agreement.