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¥* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/4/2013 10:54:24 AM.****
Electronically Filed 09/04/2013 10:54:25 AM ET
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
MARY JOHNSTON,
Plaintiff,
vs. Case No.: CACE12019330
VLN DEVELOPMENT, LLC., a
Florida Limited Liability Company,
Defendant.
/
PLAINTIFF MARY JOHNSTON’S SUPPLEMENTAL MOTION IN LIMINE
Plaintiff, MARY JOHNSTON, by and through undersigned counsel, files this her
supplemental Motion in Limine:
1. On August 27, 2013, Plaintiff took the deposition of Defendant’s engineering
expert, Thomas Black, P.E., and this Supplemental Motion in Limine is necessitated by Black’s
testimony.
2. It is undisputed that Mary Johnston fell, while exiting a convenience store in
Defendant’s strip mall, when she stepped out of the store and onto a ramp, constructed by
Defendant’s agent, for which no building permit had been obtained, and which Mr. Black agrees
failed to meet the applicable building code.
3. Although the steepness of the slope of the ramp is disputed, it is undisputed (and
admitted by Mr. Black) that the ramp failed to comply with the accessibility provisions of
The Florida Building Code, in that it failed to provide a level 5 x 5 feet landing immediately
adjacent to the front entrance, where Plaintiff fell, with the result that Plaintiff’s first step,
outside the store, was upon a sloped ramp.4. Mr. Black’s testimony was to the affect that, for 50 years or more, prior to the
development of the ADA standards and their incorporation into the Florida Building Code,
ramps like this were used and they were “safe.” Such testimony invades the province of the jury,
has no factual basis, and it is not within the witness’s expertise as a civil engineer, and therefore
should be prohibited.
5. Mr. Black testified that the sole purpose for having the 5 x 5 feet landing was for
wheel chair maneuverability (so that a person in a wheel chair could both open and enter through
a doorway) and by implication, had no application to elderly persons such as Mary Johnston (she
was in her 90s at the time of her fall), Such testimony by Mr. Black invades the province of the
Court, which interprets and applies the law, and is contrary to Florida Standard Jury Instruction
401.9 which provides that the jury decide whether the violation of a regulation is negligence.
6. Mr. Black testified that, every year, for ten years after the (non-permitted, non-
code compliant) ramps were built, the building had passed its annual fire inspection, without
being cited for the ramps. Such testimony should not be allowed because it does not have any
bearing on the issues in the case, assumes that the fire department knew that the ramps were non-
permitted and non-code compliant, and that the City of Coral Springs tacitly approved of them,
and would be prejudicial to the Plaintiff.
7. Sometime after Plaintiff's fall, Defendant hired an architect and submitted plans
to the City of Coral Springs for code compliant ramps. The city accepted the plans and issued a
building permit for the subject ramps, which were constructed in compliance with The Florida
Building Code. Plaintiff admits the rule of exclusion as to “subsequent remedial measures.”
8. Defendant’s corporate representative, Robert Nelson, testified as to various
discussions he had with the Coral Springs Building Department, prior to building the old ramps,which resulted in an alleged conversation with a city employee, in which the employee is alleged
to have said, “just build it on a Sunday,” without obtaining the necessary permit. Besides being
hearsay, the testimony concerning the apparent impossibility of obtaining a permit for the
original ramps, raises other issues set forth below.
9. The alleged problem, in permitting the original ramps, was that they had to
encroach upon the city’s property, in order to comply with the code. (The addition of a 5 x 5 feet
landing and a slope of the proper grade, required that the ramps encroach upon the city’s
property.) This problem was solved in the subsequent ramps, when Defendant hired an
architect to prepare plans with ramps, which did encroach on the city’s property, and the plans
were approved.
10. | The Florida Building Code allows owners to depart from the accessibility
provisions when a modification is not “Readily Achievable.”
ll. The 2007 Florida Building Code Section 11-3, under definitions defines “Readily
Achievable,” based upon the expense of the modification and the resources of the owner.
12. Mr. Black testified, based upon a hypothetical question, in which he was asked to
assume that Defendant was able to obtain a permit by submitting architect’s plans for code-
compliant ramps, if the requirement of such a submission would make their permitting and
construction “Readily Achievable,” and he testified that it would. In other words, had
Defendant been able to obtain a permit for the original ramps, by submitting architectural
drawings, code-complaint ramps were “Readily Achievable.”
13. This calls into contention Defendant’s testimony of alleged difficulties in
obtaining a permit for the original ramps (for which no architect’s drawings were submitted). Ifthis is to be the Defendant’s testimony, it then opens the door to the ease with which Defendant
was able to obtain a permit for code-compliant ramps (subsequent remedial measures).
Dated this 4" day of September, 2013.
Respectfully submitted,
/s/ Robert L. Vessel
Robert L. Vessel, Esq. (rvessel@dixitlaw.com)
Florida Bar No.: 314536
Shyamie Dixit, Esq. (sdixit@dixitlaw.com)
Florida Bar No.: 719684
Dixit Law Firm, P.A.
3030 N. Rocky Point Drive West, Suite 260
Tampa, FL 33607
Telephone: (813) 252-3999
Facsimile: (813) 252-3997
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
electronic email:
Anna D. Torres, Esquire
P.O. Box 21289
West Palm Beach, FL 33416-1289
at eservice@powersmenalis.com
atorres@powersmenalis.com
jalexander@powersmenalis.com
Tploskunak@powersmenalis.com
this 4" day of September, 2013.
/s/ Robert L. Vessel
Robert L. Vessel, Esquire
Florida Bar No.: 314536
Shyamie Dixit, Esq.
Florida Bar No.: 719684
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¥* FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/4/2013 10:54:24 AM.**** Electronically Filed 09/04/2013 10:54:25 AM ET IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA MARY JOHNSTON, Plaintiff, vs. Case No.: CACE12019330 VLN DEVELOPMENT, LLC., a Florida Limited Liability Company, Defendant. / PLAINTIFF MARY JOHNSTON’S SUPPLEMENTAL MOTION IN LIMINE Plaintiff, MARY JOHNSTON, by and through undersigned counsel, files this her supplemental Motion in Limine: 1. On August 27, 2013, Plaintiff took the deposition of Defendant’s engineering expert, Thomas Black, P.E., and this Supplemental Motion in Limine is necessitated by Black’s testimony. 2. It is undisputed that Mary Johnston fell, while exiting a convenience store in Defendant’s strip mall, when she stepped out of the store and onto a ramp, constructed by Defendant’s agent, for which no building permit had been obtained, and which Mr. Black agrees failed to meet the applicable building code. 3. Although the steepness of the slope of the ramp is disputed, it is undisputed (and admitted by Mr. Black) that the ramp failed to comply with the accessibility provisions of The Florida Building Code, in that it failed to provide a level 5 x 5 feet landing immediately adjacent to the front entrance, where Plaintiff fell, with the result that Plaintiff’s first step, outside the store, was upon a sloped ramp.4. Mr. Black’s testimony was to the affect that, for 50 years or more, prior to the development of the ADA standards and their incorporation into the Florida Building Code, ramps like this were used and they were “safe.” Such testimony invades the province of the jury, has no factual basis, and it is not within the witness’s expertise as a civil engineer, and therefore should be prohibited. 5. Mr. Black testified that the sole purpose for having the 5 x 5 feet landing was for wheel chair maneuverability (so that a person in a wheel chair could both open and enter through a doorway) and by implication, had no application to elderly persons such as Mary Johnston (she was in her 90s at the time of her fall), Such testimony by Mr. Black invades the province of the Court, which interprets and applies the law, and is contrary to Florida Standard Jury Instruction 401.9 which provides that the jury decide whether the violation of a regulation is negligence. 6. Mr. Black testified that, every year, for ten years after the (non-permitted, non- code compliant) ramps were built, the building had passed its annual fire inspection, without being cited for the ramps. Such testimony should not be allowed because it does not have any bearing on the issues in the case, assumes that the fire department knew that the ramps were non- permitted and non-code compliant, and that the City of Coral Springs tacitly approved of them, and would be prejudicial to the Plaintiff. 7. Sometime after Plaintiff's fall, Defendant hired an architect and submitted plans to the City of Coral Springs for code compliant ramps. The city accepted the plans and issued a building permit for the subject ramps, which were constructed in compliance with The Florida Building Code. Plaintiff admits the rule of exclusion as to “subsequent remedial measures.” 8. Defendant’s corporate representative, Robert Nelson, testified as to various discussions he had with the Coral Springs Building Department, prior to building the old ramps,which resulted in an alleged conversation with a city employee, in which the employee is alleged to have said, “just build it on a Sunday,” without obtaining the necessary permit. Besides being hearsay, the testimony concerning the apparent impossibility of obtaining a permit for the original ramps, raises other issues set forth below. 9. The alleged problem, in permitting the original ramps, was that they had to encroach upon the city’s property, in order to comply with the code. (The addition of a 5 x 5 feet landing and a slope of the proper grade, required that the ramps encroach upon the city’s property.) This problem was solved in the subsequent ramps, when Defendant hired an architect to prepare plans with ramps, which did encroach on the city’s property, and the plans were approved. 10. | The Florida Building Code allows owners to depart from the accessibility provisions when a modification is not “Readily Achievable.” ll. The 2007 Florida Building Code Section 11-3, under definitions defines “Readily Achievable,” based upon the expense of the modification and the resources of the owner. 12. Mr. Black testified, based upon a hypothetical question, in which he was asked to assume that Defendant was able to obtain a permit by submitting architect’s plans for code- compliant ramps, if the requirement of such a submission would make their permitting and construction “Readily Achievable,” and he testified that it would. In other words, had Defendant been able to obtain a permit for the original ramps, by submitting architectural drawings, code-complaint ramps were “Readily Achievable.” 13. This calls into contention Defendant’s testimony of alleged difficulties in obtaining a permit for the original ramps (for which no architect’s drawings were submitted). Ifthis is to be the Defendant’s testimony, it then opens the door to the ease with which Defendant was able to obtain a permit for code-compliant ramps (subsequent remedial measures). Dated this 4" day of September, 2013. Respectfully submitted, /s/ Robert L. Vessel Robert L. Vessel, Esq. (rvessel@dixitlaw.com) Florida Bar No.: 314536 Shyamie Dixit, Esq. (sdixit@dixitlaw.com) Florida Bar No.: 719684 Dixit Law Firm, P.A. 3030 N. Rocky Point Drive West, Suite 260 Tampa, FL 33607 Telephone: (813) 252-3999 Facsimile: (813) 252-3997 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic email: Anna D. Torres, Esquire P.O. Box 21289 West Palm Beach, FL 33416-1289 at eservice@powersmenalis.com atorres@powersmenalis.com jalexander@powersmenalis.com Tploskunak@powersmenalis.com this 4" day of September, 2013. /s/ Robert L. Vessel Robert L. Vessel, Esquire Florida Bar No.: 314536 Shyamie Dixit, Esq. Florida Bar No.: 719684