Lesnik v. Duval Ford, LLC, __ So. 3d __, 2016 WL 339777 (Fla. 1st DCA 2016)
At issue for the First District Court of Appeal, was the trial court’s striking of the affidavit of an expert witness, in this case the affidavit of Mr. Moore, for abuse of discretion.
The defendant Duval Ford had sold a truck to a non-party (Sweat), and its subcontractor installed a lift kit for Sweat. About two years later, Sweat sold the truck to the plaintiff (Lesnik), through defendant Burkins Chevrolet, and about two months later the steering and suspension failed, the truck flipped, and the plaintiff Lesnik was severely injured, resulting in the need of a Jacksonville personal injury lawyer. He sued Duval Ford for vicarious liability, negligence for selling the vehicle as modified and failing to warn, and strict liability for selling the vehicle as modified and failing to warn. The trial court entered a final summary judgment against the plaintiff Lesnik, and the plaintiff appealed, arguing as grounds for reversal the existence of genuine issues of material fact and the trial court’s striking of his expert witness Moore’s affidavit, which was filed after the motions for summary judgment were filed and which conflicted with Moore’s previous testimony.
Mr. Moore’s deposition was taken on May 7, 2014. Along with his expert opinions on the technical and mechanical evidence in this case, Mr. Moore was asked if he had “any opinions with respect to the conduct of Burkins Chevrolet that you feel caused this accident involving Mr. Lesnik?” Mr. Moore responded, “No, I do not.” Mr. Moore was asked a similar question regarding Mr. Burkins individually, and he responded with the same answer. Mr. Moore also testified that he had no opinion on whether lifted trucks should be sold to the public and he had no opinion whether the truck was defective when Duval Ford sold it to the original purchaser. After Duval Ford and Burkins Chevrolet filed their motions for summary judgment, Mr. Lesnik filed an affidavit of Mr. Moore dated September 11, 2014. In this affidavit, Mr. Moore recited several sources of information purportedly available to Burkins Chevrolet which Mr. Moore asserted provided the dealership with “trade knowledge” of the dangers of trucks with lift kits, modified suspension systems, oversized tires, and the effects of these modifications on vehicle warranties. He further opined that the service records for the truck in this case were available and that excessive tire wear should have been readily apparent had Burkins Chevrolet inspected the truck prior to selling it to the plaintiff. Mr. Moore’s affidavit concluded that Burkins Chevrolet “had information available that indicated a suspension inspection should be performed, but did not do so” and that warning the consumer, namely the plaintiff, could have prevented his “exposure to the above risks” of the vehicle. Mr. Moore’s affidavit did not explain why he was now offering these opinions after previously testifying that he had not.
The appellate court affirmed the trial court’s findings, stating: There was no evidence in the record that the lift kit was defective or improperly installed by Duval Ford’s subcontractor or that it was inherently dangerous, eliminating any claim for vicarious liability against Duval Ford. The record contains no evidence of a design defect in the lifted truck when it was originally purchased from Duval Ford, eliminating any claim for negligence or strict liability against Duval Ford. Finally, Duval Ford had no duty to warn about the truck since there was no evidence that there was anything inherently dangerous about the truck when it was sold by Duval Ford. As to the claim against Burkins Chevrolet for failing to inspect the truck and to warn of the risk of lifted vehicles, the appellate court stated that “the record lacks any evidence that Burkins Chevrolet had a duty to inspect the vehicle for latent defects or that the lifted truck actually included any design defects.” See Brito v. County of Palm Beach, 753 So. 2d 109, 112 (Fla. 4th DCA 1998) (manufacturer has “a strict duty to warn of its product’s dangerous propensities only in those instances where the commodity is inherently dangerous”). Further, the undisputed evidence showed that the plaintiff Lesnik knew the truck was lifted, “and in fact this modification was a factor in his decision to purchase the truck,” and that Burkins Chevrolet was unaware of any latent defects.” Further, with the striking of Moore’s affidavit, there was “no evidence that Burkins Chevrolet had a duty to warn [the plaintiff] of any defect.”
Read the opinion: https://edca.1dca.org/DCADocs/2014/5029/145029_DC05_01282016_082431_i.pdf
To assert a claim for a defective product, whether the claim is for negligence or strict liability, a plaintiff must show “(1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) 5 To adopt a contrary view and allow Mr. Moore — without explanation — to first answer “no opinion” and then wait to offer an opinion in opposition until after Burkins Chevrolet’s motion for summary judgment would defeat the purpose of discovery in civil cases and create an easily exploitable way around Ellison. 7 that it existed at the time the retailer or supplier parted possession with the product.” Cassisi v. Maytag Co., 396 So. 2d 1140, 1143 (Fla. 1st DCA 1981).