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Filing# 177275225 E-Filed 07/12/2023 03:49:08 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO. CACE221016576
AARON BRUNER,
V.
BONNIE JUDSON,
Defendant/Appellee.
NOTICE OF FILING TRANSCRIPTS
FOR INCLUSION IN RECORD ON APPEAL
NOTICE IS HEREBY GIVEN that the Plaintiff/Appellant
hereby files the
of the hearing on Defendant' s Motion for Final Summary
originaltranscripts
Judgment on March 13, 2023 for inclusion in the record on appeal.
WASSON & ASSOCIATES, CHARTERED
Co-counsel for Plaintiff
Courthouse Plaza-Suite 600
28 West FlaglerStreet
Miami, Florida 33130
(305) 372-5220 Telephone
annabel@wassonandassociates.com
e-service@wassonandassociates.com
WASSON & ASSOCIATES, CHARTERED
28 West Flagler Street, Suite 600 ? Miami, Florida 33130 ? (305) 372-5220 Telephone
www.wassonandassociates.com
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/12/2023 03:49:08 PM.****
By: s/Annabel C. Maj ews ki
ANNABEL C. MAJEWSKI
Florida Bar No. 181684
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the foregoingwere
served by email upon Vincent Duffy, Counsel for Aaron Bruner, Goldman & Daskal,
P.A., 1630 West Hillsboro Boulevard, Deerfield Beach, Fl 33442, Irma Kreslavskaya
and Brian Pita,Counsel for Bonnie Judson, 222 Lakeview Ave, Suite 120, West
Palm Beach, Fl 33401, inna.kreslavskaya@csklegal.com,
Brian.pita@csklegal.com;
on July 12, 2023.
By: s/Annabel C. Maj ews ki
ANNABEL C. MAJEWSKI
Florida Bar No. 181684
2
WASSON & ASSOCIATES, CHARTERED
28 West Flagler Street, Suite 600 ? Miami, Florida 33130 ? (305) 372-5220 Telephone
www.wassonandassociates.com
1
J L P I?
800.211.DEPO (3376)
1
?- DEPOSITION SOLUTIONS
1 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
2 IN AND FOR BROWARD COUNTY, FLORIDA
3
4 AARON BRUNER,
5 Plaintiff,
6 V. Case No.: 062021CA016576 125)
7 BONNIE JUDSON,
8 Defendant.
9
10 HEARING
11 BEFORE HONORABLE SHARI AFRICK-OLEFSON
12
13 SPECIAL SET HEARING
14 DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT
15
16 March 13, 2023
17 11:53 a.m.
18
19 IN-PERSON PROCEEDING
20
21 GARY SIFFORT
22 Digital Reporter
23 Commission No: HH 328484
24
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1 APPEARANCES OF COUNSEL
2
3 On behalf of the Plaintiff:
4 GOLDMAN & DASZKAL, P.A.
Attorneys at Law
5 1630 West Hillsboro Boulevard
Deerfield Beach, Florida 33442
6 954-428-9333
BY: VINCENT DUFFY, ESQUIRE
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8 On behalf of the Defendant:
9 COLE, SCOTT & KISSANE, P.A.
Attorneys at Law
10 Esperante Building
222 Lakeview Avenue
11 Suite 120
West Palm Beach, Florida 33401
12 561-383-9262
BY: BRIAN S. PITA, ESQUIRE
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1 (On the record at 11:53 a.m.)
2 THE COURT: Okay. Great. So we're on the
3 record for Bruner v. Judson in case number CACE
4 21016576. If everyone wants to announce?
5 MR. DUFFY: Vincent Duffy on behalf of Mr.
6 Bruner.
7 MR. PITA: Brian Pita on behalf of Defendant,
8 Bonnie Judson.
9 THE COURT: Okay. And I believe this is --
10 MR. PITA: It's our motion.
11 THE COURT: -- your motion.
12 MR. PITA: Okay.
13 THE COURT: Great. Whenever you're ready.
14 MR. PITA: Okay. Again, good morning, Your
15 Honor. Brian Pita on behalf of the defendant, Bonnie
16 Judson. This is our motion for final summary
17 judgment. By way of background, this is a premises
18 liability case. It took place in Pembroke Pines,
19 Florida. My client, Ms. Judson, hired the plaintiff
20 to perform roof pressure washing services. At the
21 time that this service was contracted for, Mr. Bruner
22 came out to the property. They had a very brief
23 conversation about what was going to happen, agreed on
24 a price, and then my client left. And this is
25 important --
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1 THE COURT: Just to save you time because I
2 know you both have very busy practices and demanding
3 clients, I m sure, I have reviewed the file, and I
4 have reviewed the motion and the complaint, so I'm
5 familiar with the fact about it. But you're free to
6 tell me whatever you want. I'm here to do whatever
7 you need.
8 MR. PITA: Okay. I mentioned that because it
9 is one of the two main grounds we have for our summary
10 judgment this morning. Mr. Bruner at the time he
11 performed this work was an independent contractor.
12 Under Florida law as an independent contract, the land
13 owner, in this case, Ms. Judson, has no liability for
14 incidents that occur while independent contractors are
15 performing work on their premises, unless they
16 specifically instruct that contractor on how to do is
17 job or otherwise, you know, get involved in the actual
18 completion of the work.
19 In this case, as Your Honor has seen, as
20 we've set forth in our undisputed facts, there was no
21 such instruction given by Ms. Judson. She just
22 basically paid him. He said what he was going to do.
23 She didn't tell him where to put his ladder. She
24 didn't prohibit him from putting his ladder in any
25 particular place. So under that grounds, we are
e ESQUSIOHUE DEPOSITION SOLUTIONS
1 seeking summary judgment.
2 Next we have a situation where in this case,
3 Plaintiff is claiming that liability and negligence is
4 found against the defendant because someone moved his
5 ladder while he was up on the roof of the home.
6 Unfortunately, there is no evidence to support that,
7 other than Mr. Bruner's own assumption. And he
8 correctly calls it an assumption in his deposition
9 that after he was on the ground, after the ladder had
10 already fallen onto the ground, he looked over and
11 thought, "Well, it must be out of place. It must not
12 be where I put it."
13 And in his deposition, you'll see that he's
14 asked, you know, "Well, who moved it? I don't know.
15 How do you know it was moved? Well, there's no other
16 way it would have fallen unless it was moved."
17 For the jury to conclude that my client was
18 negligent, they can only do so upon an impermissible
19 stacking of inferences. So in this case, if we were
20 to take the plaintiff at his word and his theory, we
21 have a few assumptions that have to be made, none of
22 which can be -- you know, they're not independent and
23 there's other -- there's you know, other reasons why
24 things might've happened the way they did. We have to
25 assume the ladder was moved in the course of his
e ESQUSIOHUE DEPOSITION SOLUTIONS
1 working on the roof. There's no evidence of that,
2 other than, like I said, after the fact, him looking
3 over and assuming that's why he fell.
4 He has to assume that the defendant is the
5 one who moved the ladder or that someone came onto the
6 property to move the ladder. So even if the ladder
7 was moved, perhaps it was moved for a different
8 reason. Maybe the wind blew. Maybe it slipped in the
9 water that was falling off the roof. There are other
10 reasons why the ladder may have moved.
11 He would have to assume that someone came
12 onto the property -- or we'd have to assume that
13 someone came onto the property and moved the ladder in
14 such a way that caused him to fall. So even if you
15 move a ladder, doesn't necessarily mean that that's
16 the right -- that's the reason why it fell. And then,
17 we have to assume the ladder being moved was
18 contributing cause to the accident. In this case,
19 that's an impermissible stacking of inference, upon
20 inference, upon inference.
21 Number 1, the baseline, we don't even know
22 that the ladder being in a different position at the
23 time that Mr. Bruner stepped on it is a fact. That's
24 his assumption. And then, all the other ones that
25 flow from it to get us to the ultimate conclusion that
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DEPOSITION SOLUTIONS
1 my client is negligent because either she, someone in
2 her household, or some stranger off the street came to
3 the property, moved the ladder while Mr. Bruner was
4 working on the roof, put it back in some different way
5 than he originally placed it. It's too many
6 inferences stacked on one another. And that's
7 basically it, Your Honor, without I can go further,
8 but if you did read it and in the interest of time, we
9 can --
10 THE COURT: Mr. Duffy?
11 MR. DUFFY: Yes, Your Honor. Good morning.
12 From the plaintiff's point of view, paragraph number
13 7, paragraph number 18, and paragraph number 19 from
14 the defendant's material undisputed facts, the
15 plaintiff are putting those in dispute. Paragraph
16 number 7 -
17 THE COURT: Can you tell me what they are?
18 MR. DUFFY: Yes, Judge, number 7 the
19 defendant's stated undisputed material facts is that
20 the plaintiff did not discuss with the defendant how
21 the work was to be performed. We put that fact in
22 dispute, Judge. At his deposition, the plaintiff
23 testified that he did discuss with Ms. Judson what he
24 would be doing up on her roof. Excuse me. The
25 plaintiff also executed an affidavit, in which he
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1 swears under oath that he discussed with Ms. Bruner
2 [sic] what he -- the type of work he would be
3 performing at her house. And so we put number 7 in
4 dispute. Additional --
5 THE COURT: Let me ask you about that. The
6 issue is not the type of work. She hired him to do
7 pressure cleaning, so clearly the type of work he's
8 going to do is pressure cleaning. The issue is in
9 terms of whether or not someone that's an independent
10 contractor is the kind of control she can have. So
11 did she tell him how to climb up onto the roof, what
12 type of water to use, where to put his equipment, any
13 of those things that might've been involved from -- in
14 any way in the injury?
15 MR. DUFFY: No, Judge. The plaintiff is not
16 making an argument that Ms. Judson controlled his
17 fashion of work or provided him with tools to perform
18 his work. As is laid out in the written pleading,
19 we're arguing, and we'd like to argue to the jury,
20 that Ms. Judson undertook the duty through her
21 discussions with Mr. Bruner that he was reliant upon
22 her to now allow anybody or anything to gain access to
23 her driveway or gain proximity to his ladder while he
24 was on her roof performing the pressure washing job.
25 So we think that this case is not an independent
e ESQUSIOHUE DEPOSITION SOLUTIONS
1 contractor getting hurt while performing independent
2 contractor work. We believe it is an undertaken duty
3 case.
4 And as the Supreme Court in the Clay opinion,
5 Clay Electric case laid out, as I cited in my written
6 pleading, Your Honor, that Ms. Judson needs the
7 three-part test for somebody who undertakes a duty.
8 Here, it would've been gratuitous or part of a
9 contractual arrangement just between her and Mr.
10 Bruner. Through his conversations with her and
11 through the affidavit that he has executed, he's
12 testified and also Ms. Judson has testified that they
13 spoke about what he would be doing up there. He's
14 testified that he expressed to her that he'd be
15 relying upon her to not allow people or things around
16 his ladder when he's up on the roof because he can't
17 see it.
18 And so when we get to the three-part test,
19 when Ms. Judson fails to reasonably undertake the duty
20 of preventing that ladder from moving, there is an
21 increased risk to Mr. Bruner, obviously, in this case
22 he fell off the roof. Through his testimony and
23 through Ms. Judson's testimony, we think we've met
24 sub-paragraph B that Ms. Judson did undertake and
25 perform duty. And in sub-paragraph C, there was harm
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1 suffered to Mr. Bruner because he did rely upon her,
2 and he thought that his ladder had been undisturbed.
3 And in the Clay Electric Power case, Judge,
4 the court goes on to talk about how in that case, it
5 was a young child that walked to a bus stop and was
6 run over and the maintenance company, the Clay
7 Electric, was sued for not maintaining a light over a
8 street. And the court went on to say that Clay would
9 be held liable, or at least we can get to a jury on
10 the case because the plaintiff was prevented from
11 taking other precautions due to the reliance upon the
12 defendant's maintenance of a light.
13 And that, we think, would be at play in this
14 case is that the Mr. Bruner was prevented from
15 taking other precautions because he was relying upon
16 Ms. Judson. And if Ms. Judson had warned him that I'm
17 leaving, I'm leaving the house; no one's going to be
18 watching your ladder; there's nobody making sure that
19 nothing's happening to your ladder, we are going to
20 tell the jury that Mr. Bruner would've gotten off the
21 roof at that point, waited for Ms. Judson to come back
22 from Publix and then gone back up on the roof when it
23 was safe too and when he could then again rely upon
24 the homeowner preventing anybody from gaining access
25 to the ladder.
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1 So we think this is an undertaking duty case.
2 We don't see it as an independent contractor getting
3 hurt while performing independent contractor work.
4 Because of Mr. Bruner's affidavit and his deposition
5 testimony and just sort of the -- as the Supreme Court
6 in Powell versus -- excuse me, McCain versus FPL says,
7 sometimes the facts of the case present the duty and
8 the zone of risk and the foreseeability. The facts in
9 the case create that duty for the defendant.
10 And here, the facts of the case definitely
11 create a zone of duty -- excuse me, a foreseeability
12 of a zone of risk to the plaintiff because he's
13 telling the homeowner I'm going up on your roof, and I
14 can't see what's going on in your driveway when I'm up
15 there, and obviously, his ladder was in the zone of
16 danger. And we just think that the facts of this case
17 create a -- the undertaking duty, and we think that
18 the plaintiff should be able to get to a jury on the
19 factual scenario that's at play in this case, Judge.
20 THE COURT: Okay. Thanks. Any rebuttal?
21 MR. PITA: Yes. With respect to that, Your
22 the - want to point out that Ms. Judson was
Honor, I
23 asked these questions, pointed questions by both
24 plaintiff and myself during her deposition. And
25 plaintiff's counsel asked her,
e ESQUSIOHUE DEPOSITION SOLUTIONS
1 "Q. On the year or so before the driveway
2 [sic] was cleaned, do you have any memory of Mr.
3 Bruner discussing with that when he goes up in the --
4 up on the roof, you know, please don't touch the
5 ladder.
6 "A. No.
7 "Q. And on the day he got injured, do you
8 have any memory of talking to him before he went up on
9 the roof?
10 "A. Just about the price and what he was
11 doing, and I said, "I'm leaving."
12 "Q. And do you have any memory about him
"
13 saying to you, "Please don' t touch the ladder, don' t
14 touch "Don't let anyone touch the ladder. I'm
15 going to be up on the roof" ?
16 "A. No.
17 "Q. Do you have any memory of him putting
18 out any sort of -- besides the ladder, putting out any
19 sort of device, like a pressure washer that made noise
20 or anything like that?
21 "A, Well, that's what he uses up on the
22 roof.
23 MR. PITA: I also then asked her,
24 "Q. Ms. Judson?
25 "A. Yes.
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1 "Q. When Mr. Bruner arrived at your house on
2 the day of the accident, did you tell him where to set
3 up his ladder in order for him to pressure clean the
4 roof?
5 "A. No.
6 "Q. Did you tell him there were areas of the
7 house where it was off-limits for him to set up his
8 ladder in order to get up on the roof?
9 "A. No.
10 "Q. When you left for Publix, was there a
11 vehicle in your garage?
12 "A. No.
13 MR. PITA: The self-serving affidavit that
14 was provided after the fact, after filed this motion,
15 was not an issue that was brought up either by myself
16 or by plaintiff's counsel at either the deposition of
17 Mr. Bruner or Ms. Judson. And Ms. Judson herself is
18 saying, "I did not have any of these conversations.
19 It was a simple, how much is it going to cost; this is
20 what I'm doing; I'm going to the store; see you
21 later," type of instance.
22 As the contractor, there was no separate
23 agreement. There's no contract between the two.
24 There's no written agreement whereby my client said I
25 will ensure the safety of all persons working on my
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1 premises during the pendency of the cleaning of my
2 roof. It's a simple transaction between a contractor
3 and a homeowner having a verbal contract to pressure
4 clean the roof. And there's no evidence, again,
5 beyond the self-serving affidavit filed after the fact
6 that there was any sort of agreement by Ms. Judson
7 that she was going to take special care or put out
8 warning signs or something of that nature to alert all
9 the neighborhood to stay away from this ladder;
10 someone s up here doing work on my roof.
11 THE COURT: Just so I'm clear, I want to make
12 sure I understand. Mr. Duffy, your position is that
13 the defendant had agreed to, I guess, essentially
14 stand by the ladder to make sure no one touched the
15 ladder? Is that what you're saying was your client's
16 understanding?
17 MR. DUFFY: No. No one testified to the fact
18 she was going to physically stand there next to it.
19 THE COURT: What exactly is your -- in your
20 own sense, what is your client's understanding of the
21 duty she had?
22 MR. DUFFY: Don't let anything happen to my
23 ladder when I'm up on your roof.
24 THE COURT: Okay. So in order to not let
25 anything happen, she'd have to stand there and watch
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1 it. How else did he think she was going to do that?
2 I'm just asking what your client's understanding was.
3 I'm trying to establish what you're trying to
4 establish in terms of the elements here.
5 MR. DUFFY: Right.
6 THE COURT: I'm trying to understand what he
7 felt her duty was here.
8 MR. DUFFY: Well, as he testified to at his
9 deposition, Your Honor, is that he instructs the
10 homeowner's that -- get everything out of the
11 driveway, like, basically lock up your garage --
12 THE COURT: No. I'm not asking what he tells
13 homeowners. What was her duty here?
14 MR. DUFFY: To prevent any movement of his
15 ladder or to prevent his ladder from being jostled
16 because he's not able to notice anything going on with
17 his ladder when he's up on her roof.
18 THE COURT: Okay. Not a problem. So under
19 these circumstances, the motion for summary judgment
20 is granted. There's just no reason the jury is going
21 to believe that the homeowner would have the ability
22 to stand at a ladder all day and make sure nothing was
23 going to happen to it, so thank you. Okay. If you
24 can submit a proposed order?
25 MR. PITA: Do you want one that just says
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1 granted or with findings?
2 THE COURT: I'd like findings. All right.
3 Thank you very much.
4 MR. DUFFY: Thank you, Judge.
5 THE COURT: Have a great day.
6 MR. PITA: Thank you, Your Honor.
7 (Whereupon, the proceeding concluded at 12:08 p.m.)
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1 REPORTER'S CERTIFICATE
2
3 I, GARY SIFFORT, Digital Reporter and Notary
4 Public within and for the State Florida do hereby
5 certify:
6 That the foregoing proceeding hereinbefore
7 set forth was accurately captured with annotations by
8 me during the proceeding.
9 I further certify that I am not related to
10 any of the parties to this action by blood or
11 marriage, and that I am in no way interested in the
12 outcome of this matter.
13 In witness thereof, I have hereunto set my
14 hand this 11 April, 2023.
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17
18 GARY SIFFORT
19 Notary Commission No.: HH 328484
20 Commission Expires: November 2, 2026
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1 TRANSCRIBER'S CERTIFICATE
2
3 I, Natalie C. Webb, legal transcriptionist,
4 do hereby certify:
5 That the foregoing is a complete and accurate
6 transcript of the original digital audio recording of
7 the testimony and proceedings captured in the above
8 entitled matter. As the transcriptionist, I have
9 reviewed and transcribed the entirety of the
10 proceeding to ensure a verbatim record to the best of
11 my ability.
12 I further certify that I am not neither
13 attorney for, nor a relative or employee of any of the
14 parties to the action; further, that I am not a
15 relative or employee of any attorney employed by the
16 parties hereto, nor financially or otherwise
17 interested in the outcome of this matter.
18 In witness thereof, I have hereunto set my
19 hand this 11 April, 2023.
20
21
22 Nataili,eWa
23 Natalie C. Webb
24 Legal Transcriber
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Filing# 177275225 E-Filed 07/12/2023 03:49:08 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE221016576 AARON BRUNER, V. BONNIE JUDSON, Defendant/Appellee. NOTICE OF FILING TRANSCRIPTS FOR INCLUSION IN RECORD ON APPEAL NOTICE IS HEREBY GIVEN that the Plaintiff/Appellant hereby files the of the hearing on Defendant' s Motion for Final Summary originaltranscripts Judgment on March 13, 2023 for inclusion in the record on appeal. WASSON & ASSOCIATES, CHARTERED Co-counsel for Plaintiff Courthouse Plaza-Suite 600 28 West FlaglerStreet Miami, Florida 33130 (305) 372-5220 Telephone annabel@wassonandassociates.com e-service@wassonandassociates.com WASSON & ASSOCIATES, CHARTERED 28 West Flagler Street, Suite 600 ? Miami, Florida 33130 ? (305) 372-5220 Telephone www.wassonandassociates.com *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/12/2023 03:49:08 PM.**** By: s/Annabel C. Maj ews ki ANNABEL C. MAJEWSKI Florida Bar No. 181684 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoingwere served by email upon Vincent Duffy, Counsel for Aaron Bruner, Goldman & Daskal, P.A., 1630 West Hillsboro Boulevard, Deerfield Beach, Fl 33442, Irma Kreslavskaya and Brian Pita,Counsel for Bonnie Judson, 222 Lakeview Ave, Suite 120, West Palm Beach, Fl 33401, inna.kreslavskaya@csklegal.com, Brian.pita@csklegal.com; on July 12, 2023. By: s/Annabel C. Maj ews ki ANNABEL C. MAJEWSKI Florida Bar No. 181684 2 WASSON & ASSOCIATES, CHARTERED 28 West Flagler Street, Suite 600 ? Miami, Florida 33130 ? (305) 372-5220 Telephone www.wassonandassociates.com 1 J L P I? 800.211.DEPO (3376) 1 ?- DEPOSITION SOLUTIONS 1 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT 2 IN AND FOR BROWARD COUNTY, FLORIDA 3 4 AARON BRUNER, 5 Plaintiff, 6 V. Case No.: 062021CA016576 125) 7 BONNIE JUDSON, 8 Defendant. 9 10 HEARING 11 BEFORE HONORABLE SHARI AFRICK-OLEFSON 12 13 SPECIAL SET HEARING 14 DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT 15 16 March 13, 2023 17 11:53 a.m. 18 19 IN-PERSON PROCEEDING 20 21 GARY SIFFORT 22 Digital Reporter 23 Commission No: HH 328484 24 25 e ESQUSIOHUEDEPOSITION SOLUTIONS 1 APPEARANCES OF COUNSEL 2 3 On behalf of the Plaintiff: 4 GOLDMAN & DASZKAL, P.A. Attorneys at Law 5 1630 West Hillsboro Boulevard Deerfield Beach, Florida 33442 6 954-428-9333 BY: VINCENT DUFFY, ESQUIRE 7 8 On behalf of the Defendant: 9 COLE, SCOTT & KISSANE, P.A. Attorneys at Law 10 Esperante Building 222 Lakeview Avenue 11 Suite 120 West Palm Beach, Florida 33401 12 561-383-9262 BY: BRIAN S. PITA, ESQUIRE 13 14 15 16 17 18 19 20 21 22 23 24 25 e ESQUSIOHUE DEPOSITION SOLUTIONS 1 (On the record at 11:53 a.m.) 2 THE COURT: Okay. Great. So we're on the 3 record for Bruner v. Judson in case number CACE 4 21016576. If everyone wants to announce? 5 MR. DUFFY: Vincent Duffy on behalf of Mr. 6 Bruner. 7 MR. PITA: Brian Pita on behalf of Defendant, 8 Bonnie Judson. 9 THE COURT: Okay. And I believe this is -- 10 MR. PITA: It's our motion. 11 THE COURT: -- your motion. 12 MR. PITA: Okay. 13 THE COURT: Great. Whenever you're ready. 14 MR. PITA: Okay. Again, good morning, Your 15 Honor. Brian Pita on behalf of the defendant, Bonnie 16 Judson. This is our motion for final summary 17 judgment. By way of background, this is a premises 18 liability case. It took place in Pembroke Pines, 19 Florida. My client, Ms. Judson, hired the plaintiff 20 to perform roof pressure washing services. At the 21 time that this service was contracted for, Mr. Bruner 22 came out to the property. They had a very brief 23 conversation about what was going to happen, agreed on 24 a price, and then my client left. And this is 25 important -- e ESQUSIOHUE DEPOSITION SOLUTIONS 1 THE COURT: Just to save you time because I 2 know you both have very busy practices and demanding 3 clients, I m sure, I have reviewed the file, and I 4 have reviewed the motion and the complaint, so I'm 5 familiar with the fact about it. But you're free to 6 tell me whatever you want. I'm here to do whatever 7 you need. 8 MR. PITA: Okay. I mentioned that because it 9 is one of the two main grounds we have for our summary 10 judgment this morning. Mr. Bruner at the time he 11 performed this work was an independent contractor. 12 Under Florida law as an independent contract, the land 13 owner, in this case, Ms. Judson, has no liability for 14 incidents that occur while independent contractors are 15 performing work on their premises, unless they 16 specifically instruct that contractor on how to do is 17 job or otherwise, you know, get involved in the actual 18 completion of the work. 19 In this case, as Your Honor has seen, as 20 we've set forth in our undisputed facts, there was no 21 such instruction given by Ms. Judson. She just 22 basically paid him. He said what he was going to do. 23 She didn't tell him where to put his ladder. She 24 didn't prohibit him from putting his ladder in any 25 particular place. So under that grounds, we are e ESQUSIOHUE DEPOSITION SOLUTIONS 1 seeking summary judgment. 2 Next we have a situation where in this case, 3 Plaintiff is claiming that liability and negligence is 4 found against the defendant because someone moved his 5 ladder while he was up on the roof of the home. 6 Unfortunately, there is no evidence to support that, 7 other than Mr. Bruner's own assumption. And he 8 correctly calls it an assumption in his deposition 9 that after he was on the ground, after the ladder had 10 already fallen onto the ground, he looked over and 11 thought, "Well, it must be out of place. It must not 12 be where I put it." 13 And in his deposition, you'll see that he's 14 asked, you know, "Well, who moved it? I don't know. 15 How do you know it was moved? Well, there's no other 16 way it would have fallen unless it was moved." 17 For the jury to conclude that my client was 18 negligent, they can only do so upon an impermissible 19 stacking of inferences. So in this case, if we were 20 to take the plaintiff at his word and his theory, we 21 have a few assumptions that have to be made, none of 22 which can be -- you know, they're not independent and 23 there's other -- there's you know, other reasons why 24 things might've happened the way they did. We have to 25 assume the ladder was moved in the course of his e ESQUSIOHUE DEPOSITION SOLUTIONS 1 working on the roof. There's no evidence of that, 2 other than, like I said, after the fact, him looking 3 over and assuming that's why he fell. 4 He has to assume that the defendant is the 5 one who moved the ladder or that someone came onto the 6 property to move the ladder. So even if the ladder 7 was moved, perhaps it was moved for a different 8 reason. Maybe the wind blew. Maybe it slipped in the 9 water that was falling off the roof. There are other 10 reasons why the ladder may have moved. 11 He would have to assume that someone came 12 onto the property -- or we'd have to assume that 13 someone came onto the property and moved the ladder in 14 such a way that caused him to fall. So even if you 15 move a ladder, doesn't necessarily mean that that's 16 the right -- that's the reason why it fell. And then, 17 we have to assume the ladder being moved was 18 contributing cause to the accident. In this case, 19 that's an impermissible stacking of inference, upon 20 inference, upon inference. 21 Number 1, the baseline, we don't even know 22 that the ladder being in a different position at the 23 time that Mr. Bruner stepped on it is a fact. That's 24 his assumption. And then, all the other ones that 25 flow from it to get us to the ultimate conclusion that e ESQUSIOHUE DEPOSITION SOLUTIONS 1 my client is negligent because either she, someone in 2 her household, or some stranger off the street came to 3 the property, moved the ladder while Mr. Bruner was 4 working on the roof, put it back in some different way 5 than he originally placed it. It's too many 6 inferences stacked on one another. And that's 7 basically it, Your Honor, without I can go further, 8 but if you did read it and in the interest of time, we 9 can -- 10 THE COURT: Mr. Duffy? 11 MR. DUFFY: Yes, Your Honor. Good morning. 12 From the plaintiff's point of view, paragraph number 13 7, paragraph number 18, and paragraph number 19 from 14 the defendant's material undisputed facts, the 15 plaintiff are putting those in dispute. Paragraph 16 number 7 - 17 THE COURT: Can you tell me what they are? 18 MR. DUFFY: Yes, Judge, number 7 the 19 defendant's stated undisputed material facts is that 20 the plaintiff did not discuss with the defendant how 21 the work was to be performed. We put that fact in 22 dispute, Judge. At his deposition, the plaintiff 23 testified that he did discuss with Ms. Judson what he 24 would be doing up on her roof. Excuse me. The 25 plaintiff also executed an affidavit, in which he e ESQUSIOHUE DEPOSITION SOLUTIONS 1 swears under oath that he discussed with Ms. Bruner 2 [sic] what he -- the type of work he would be 3 performing at her house. And so we put number 7 in 4 dispute. Additional -- 5 THE COURT: Let me ask you about that. The 6 issue is not the type of work. She hired him to do 7 pressure cleaning, so clearly the type of work he's 8 going to do is pressure cleaning. The issue is in 9 terms of whether or not someone that's an independent 10 contractor is the kind of control she can have. So 11 did she tell him how to climb up onto the roof, what 12 type of water to use, where to put his equipment, any 13 of those things that might've been involved from -- in 14 any way in the injury? 15 MR. DUFFY: No, Judge. The plaintiff is not 16 making an argument that Ms. Judson controlled his 17 fashion of work or provided him with tools to perform 18 his work. As is laid out in the written pleading, 19 we're arguing, and we'd like to argue to the jury, 20 that Ms. Judson undertook the duty through her 21 discussions with Mr. Bruner that he was reliant upon 22 her to now allow anybody or anything to gain access to 23 her driveway or gain proximity to his ladder while he 24 was on her roof performing the pressure washing job. 25 So we think that this case is not an independent e ESQUSIOHUE DEPOSITION SOLUTIONS 1 contractor getting hurt while performing independent 2 contractor work. We believe it is an undertaken duty 3 case. 4 And as the Supreme Court in the Clay opinion, 5 Clay Electric case laid out, as I cited in my written 6 pleading, Your Honor, that Ms. Judson needs the 7 three-part test for somebody who undertakes a duty. 8 Here, it would've been gratuitous or part of a 9 contractual arrangement just between her and Mr. 10 Bruner. Through his conversations with her and 11 through the affidavit that he has executed, he's 12 testified and also Ms. Judson has testified that they 13 spoke about what he would be doing up there. He's 14 testified that he expressed to her that he'd be 15 relying upon her to not allow people or things around 16 his ladder when he's up on the roof because he can't 17 see it. 18 And so when we get to the three-part test, 19 when Ms. Judson fails to reasonably undertake the duty 20 of preventing that ladder from moving, there is an 21 increased risk to Mr. Bruner, obviously, in this case 22 he fell off the roof. Through his testimony and 23 through Ms. Judson's testimony, we think we've met 24 sub-paragraph B that Ms. Judson did undertake and 25 perform duty. And in sub-paragraph C, there was harm e ESQUSIOHUEDEPOSITION SOLUTIONS 1 suffered to Mr. Bruner because he did rely upon her, 2 and he thought that his ladder had been undisturbed. 3 And in the Clay Electric Power case, Judge, 4 the court goes on to talk about how in that case, it 5 was a young child that walked to a bus stop and was 6 run over and the maintenance company, the Clay 7 Electric, was sued for not maintaining a light over a 8 street. And the court went on to say that Clay would 9 be held liable, or at least we can get to a jury on 10 the case because the plaintiff was prevented from 11 taking other precautions due to the reliance upon the 12 defendant's maintenance of a light. 13 And that, we think, would be at play in this 14 case is that the Mr. Bruner was prevented from 15 taking other precautions because he was relying upon 16 Ms. Judson. And if Ms. Judson had warned him that I'm 17 leaving, I'm leaving the house; no one's going to be 18 watching your ladder; there's nobody making sure that 19 nothing's happening to your ladder, we are going to 20 tell the jury that Mr. Bruner would've gotten off the 21 roof at that point, waited for Ms. Judson to come back 22 from Publix and then gone back up on the roof when it 23 was safe too and when he could then again rely upon 24 the homeowner preventing anybody from gaining access 25 to the ladder. e ESQUSIOHUEDEPOSITION SOLUTIONS 1 So we think this is an undertaking duty case. 2 We don't see it as an independent contractor getting 3 hurt while performing independent contractor work. 4 Because of Mr. Bruner's affidavit and his deposition 5 testimony and just sort of the -- as the Supreme Court 6 in Powell versus -- excuse me, McCain versus FPL says, 7 sometimes the facts of the case present the duty and 8 the zone of risk and the foreseeability. The facts in 9 the case create that duty for the defendant. 10 And here, the facts of the case definitely 11 create a zone of duty -- excuse me, a foreseeability 12 of a zone of risk to the plaintiff because he's 13 telling the homeowner I'm going up on your roof, and I 14 can't see what's going on in your driveway when I'm up 15 there, and obviously, his ladder was in the zone of 16 danger. And we just think that the facts of this case 17 create a -- the undertaking duty, and we think that 18 the plaintiff should be able to get to a jury on the 19 factual scenario that's at play in this case, Judge. 20 THE COURT: Okay. Thanks. Any rebuttal? 21 MR. PITA: Yes. With respect to that, Your 22 the - want to point out that Ms. Judson was Honor, I 23 asked these questions, pointed questions by both 24 plaintiff and myself during her deposition. And 25 plaintiff's counsel asked her, e ESQUSIOHUE DEPOSITION SOLUTIONS 1 "Q. On the year or so before the driveway 2 [sic] was cleaned, do you have any memory of Mr. 3 Bruner discussing with that when he goes up in the -- 4 up on the roof, you know, please don't touch the 5 ladder. 6 "A. No. 7 "Q. And on the day he got injured, do you 8 have any memory of talking to him before he went up on 9 the roof? 10 "A. Just about the price and what he was 11 doing, and I said, "I'm leaving." 12 "Q. And do you have any memory about him " 13 saying to you, "Please don' t touch the ladder, don' t 14 touch "Don't let anyone touch the ladder. I'm 15 going to be up on the roof" ? 16 "A. No. 17 "Q. Do you have any memory of him putting 18 out any sort of -- besides the ladder, putting out any 19 sort of device, like a pressure washer that made noise 20 or anything like that? 21 "A, Well, that's what he uses up on the 22 roof. 23 MR. PITA: I also then asked her, 24 "Q. Ms. Judson? 25 "A. Yes. e ESQUSIOHUE DEPOSITION SOLUTIONS 1 "Q. When Mr. Bruner arrived at your house on 2 the day of the accident, did you tell him where to set 3 up his ladder in order for him to pressure clean the 4 roof? 5 "A. No. 6 "Q. Did you tell him there were areas of the 7 house where it was off-limits for him to set up his 8 ladder in order to get up on the roof? 9 "A. No. 10 "Q. When you left for Publix, was there a 11 vehicle in your garage? 12 "A. No. 13 MR. PITA: The self-serving affidavit that 14 was provided after the fact, after filed this motion, 15 was not an issue that was brought up either by myself 16 or by plaintiff's counsel at either the deposition of 17 Mr. Bruner or Ms. Judson. And Ms. Judson herself is 18 saying, "I did not have any of these conversations. 19 It was a simple, how much is it going to cost; this is 20 what I'm doing; I'm going to the store; see you 21 later," type of instance. 22 As the contractor, there was no separate 23 agreement. There's no contract between the two. 24 There's no written agreement whereby my client said I 25 will ensure the safety of all persons working on my e ESQUSIOHUE DEPOSITION SOLUTIONS 1 premises during the pendency of the cleaning of my 2 roof. It's a simple transaction between a contractor 3 and a homeowner having a verbal contract to pressure 4 clean the roof. And there's no evidence, again, 5 beyond the self-serving affidavit filed after the fact 6 that there was any sort of agreement by Ms. Judson 7 that she was going to take special care or put out 8 warning signs or something of that nature to alert all 9 the neighborhood to stay away from this ladder; 10 someone s up here doing work on my roof. 11 THE COURT: Just so I'm clear, I want to make 12 sure I understand. Mr. Duffy, your position is that 13 the defendant had agreed to, I guess, essentially 14 stand by the ladder to make sure no one touched the 15 ladder? Is that what you're saying was your client's 16 understanding? 17 MR. DUFFY: No. No one testified to the fact 18 she was going to physically stand there next to it. 19 THE COURT: What exactly is your -- in your 20 own sense, what is your client's understanding of the 21 duty she had? 22 MR. DUFFY: Don't let anything happen to my 23 ladder when I'm up on your roof. 24 THE COURT: Okay. So in order to not let 25 anything happen, she'd have to stand there and watch e ESQUSIOHUE DEPOSITION SOLUTIONS 1 it. How else did he think she was going to do that? 2 I'm just asking what your client's understanding was. 3 I'm trying to establish what you're trying to 4 establish in terms of the elements here. 5 MR. DUFFY: Right. 6 THE COURT: I'm trying to understand what he 7 felt her duty was here. 8 MR. DUFFY: Well, as he testified to at his 9 deposition, Your Honor, is that he instructs the 10 homeowner's that -- get everything out of the 11 driveway, like, basically lock up your garage -- 12 THE COURT: No. I'm not asking what he tells 13 homeowners. What was her duty here? 14 MR. DUFFY: To prevent any movement of his 15 ladder or to prevent his ladder from being jostled 16 because he's not able to notice anything going on with 17 his ladder when he's up on her roof. 18 THE COURT: Okay. Not a problem. So under 19 these circumstances, the motion for summary judgment 20 is granted. There's just no reason the jury is going 21 to believe that the homeowner would have the ability 22 to stand at a ladder all day and make sure nothing was 23 going to happen to it, so thank you. Okay. If you 24 can submit a proposed order? 25 MR. PITA: Do you want one that just says e ESQUSIOHUE DEPOSITION SOLUTIONS 1 granted or with findings? 2 THE COURT: I'd like findings. All right. 3 Thank you very much. 4 MR. DUFFY: Thank you, Judge. 5 THE COURT: Have a great day. 6 MR. PITA: Thank you, Your Honor. 7 (Whereupon, the proceeding concluded at 12:08 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e ESQUSIOHUE DEPOSITION SOLUTIONS 1 REPORTER'S CERTIFICATE 2 3 I, GARY SIFFORT, Digital Reporter and Notary 4 Public within and for the State Florida do hereby 5 certify: 6 That the foregoing proceeding hereinbefore 7 set forth was accurately captured with annotations by 8 me during the proceeding. 9 I further certify that I am not related to 10 any of the parties to this action by blood or 11 marriage, and that I am in no way interested in the 12 outcome of this matter. 13 In witness thereof, I have hereunto set my 14 hand this 11 April, 2023. 15 16 17 18 GARY SIFFORT 19 Notary Commission No.: HH 328484 20 Commission Expires: November 2, 2026 21 22 23 24 25 e ESQUSIOHUE DEPOSITION SOLUTIONS 1 TRANSCRIBER'S CERTIFICATE 2 3 I, Natalie C. Webb, legal transcriptionist, 4 do hereby certify: 5 That the foregoing is a complete and accurate 6 transcript of the original digital audio recording of 7 the testimony and proceedings captured in the above 8 entitled matter. As the transcriptionist, I have 9 reviewed and transcribed the entirety of the 10 proceeding to ensure a verbatim record to the best of 11 my ability. 12 I further certify that I am not neither 13 attorney for, nor a relative or employee of any of the 14 parties to the action; further, that I am not a 15 relative or employee of any attorney employed by the 16 parties hereto, nor financially or otherwise 17 interested in the outcome of this matter. 18 In witness thereof, I have hereunto set my 19 hand this 11 April, 2023. 20 21 22 Nataili,eWa 23 Natalie C. Webb 24 Legal Transcriber 25 e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS e ESQUSIOHUE DEPOSITION SOLUTIONS