Third District Court of Appeal
State of Florida
Opinion filed December 27, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2624
Lower Tribunal No. 16-12
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Bechtel Corporation, et al.,
Appellants,
vs.
Richard Batchelor, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Carlton Fields Jorden Burt, P.A., and Chris W. Altenbernd, Sylvia H.
Walbolt, and Matthew J. Conigliaro (Tampa), for appellants.
The Ferraro Law Firm, P.A., and Juan P. Bauta, II, Paulo R. Lima, and
Gabriel S. Saade, for appellees.
Before EMAS, LOGUE, and SCALES, JJ.
LOGUE, J.
Bechtel Corporation and Bechtel Construction Company (collectively
“Bechtel”) appeal a final judgment after a jury trial in favor of Richard and Regina
Batchelor. The jury found that Bechtel was liable for Mr. Batchelor’s
mesothelioma because it was caused in part by exposure to asbestos at Florida
Power and Light’s (“FPL”) Turkey Point power plant, where Mr. Batchelor
worked from 1974 to 1980. At that time, Bechtel was a large contractor for FPL,
providing services at the power plant. This case illustrates the difficulty in
establishing proof of events that occurred well over thirty years ago.
Bechtel raises four issues on appeal, but we write to address two: (1)
whether the trial court erred by giving an adverse jury instruction as a discovery
sanction, and (2) whether there was sufficient evidence for a jury to find that
Bechtel was in possession and control of all or part of the plant such that it owed
Mr. Batchelor the same duty that a landowner owes an invitee under the law of
premises liability. For the reasons explained below, we reverse on both grounds.
I. Background
Richard Batchelor was diagnosed with terminal mesothelioma in 2015. The
major cause of mesothelioma is exposure to asbestos. In the past, Mr. Batchelor
had served on nuclear submarines in the Navy where he was trained as an electrical
technician to maintain gauges used to monitor nuclear power plants. He then
joined FPL where he worked as an electrical technician at the Turkey Point power
2
plant from 1974 to 1980 and then at another one of its power plants for two years,
until he was promoted to perform budgeting work within an office.
On January 2, 2016, Mr. Batchelor and his wife filed the complaint at issue
in this case. The complaint sued twenty-six defendants including, for example,
Banner Supply Company, Bennett Auto Supply, Ford Motor Company, Foster
Wheeler Energy Corporation, General Electric Company, Genuine Parts Company,
Gould Pumps, Inc., Honeywell International, Inc., Union Carbide Corporation,
Westinghouse Electric Corporation, FPL, and Bechtel.1 The complaint gives a
short description of each defendant which identifies the asserted basis for liability.
Most defendants are described as a company that “manufactured, sold, and/or
distributed asbestos-containing products throughout the United States, including
Florida, which Plaintiff purchased, used and was exposed to in his life, causing
Plaintiff to develop mesothelioma.” In contrast, the description for Bechtel alleges
that Batchelor “was exposed to asbestos-containing products . . . at power plant(s)
that Bechtel . . . operated, directed, controlled and/or managed and/or repaired.”
The complaint contains four counts. Count I is labeled “Premises Liability.”
It names FPL and Bechtel. It alleges Batchelor, as an employee of FPL “was
invited to be on the premises of Defendant, FPL.” It further alleges Bechtel, which
was “in control of the operations and maintenance of Defendant FPL’s power
1 By the time the trial started, the only defendants left in the case were
Bechtel and Foster Wheeler. Foster Wheeler settled on the last day of trial.
3
plant(s) upon which Plaintiff performed services, owed Plaintiff a duty to keep the
premises in a reasonably safe condition, and owed a duty to Plaintiff to give him
timely notice of latent or concealed perils which were known or should have been
known.”
Count II is labeled “Negligence.” It is a products liability negligence claim
against “each Defendant who was in the business of manufacturing, selling and/or
distributing products.” Count III is labeled “Strict Liability.” It is a products strict
liability claim against the defendants that “manufactured, distributed, supplied,
sold and/or placed into the stream of commerce” products containing asbestos.
Finally, Count IV was labeled “Loss of Consortium” for Mrs. Batchelor based on
the prior Counts.
Because of Mr. Batchelor’s medical condition, the case was set for trial on
an expedited basis to begin August 22, 2016. On July 2, 2016, Batchelor noticed
the depositions of Bechtel’s corporate representatives. The depositions took place
on August 4 and 5, 2016. Immediately after the depositions were taken, Batchelor
moved for sanctions, asserting that Bechtel failed to adequately search for
documents and information that might have been provided by retired former
employees. In particular, he requested an instruction permitting the jury to infer
that such evidence would have been unfavorable to Bechtel.
4
Five days before trial, the trial court held a hearing on Batchelor’s motion
for sanctions. In opposition to the motion, Bechtel argued that it had no obligation
to seek out former employees from thirty-six to forty-two years earlier and that
attempts to locate past employees in similar lawsuits proved fruitless due to the
passage of time. The trial court indicated Bechtel could have mailed postcards to
the last-known addresses of employees. The trial court had never previously issued
an order compelling Bechtel to mail the postcards or otherwise contact past
employees. Nor did it have copies of the transcripts of the deficient depositions
before it. Nevertheless, the trial court granted the motion for an adverse inference
based on Bechtel’s failure to attempt to locate former employees.
At trial, Mr. Batchelor testified that he was employed by FPL as an
electronic technician responsible for repairing and maintaining the gauges and
equipment at the Turkey Point power plant. The plant has a nuclear side and a
fossil fuel side, each consisting of two units. From 1974 to 1976, he worked
mainly on the nuclear side. He then transferred to the fossil fuel side where he
worked from 1976 to 1980.
Insulation covered the various pipes, wires, and equipment at the plant.
Some of the insulation contained asbestos. When Mr. Batchelor was required to
work on equipment covered with insulation, he did not remove the insulation
himself. Instead, his supervisor called in workers who specialized in removing
5
insulation. FPL itself removed insulation for small jobs, and contractors removed
insulation for large jobs.
Mr. Batchelor never worked on equipment while the insulation was being
removed. However, he worked in the vicinity of other workers removing
insulation. Mr. Batchelor testified “[s]ometimes the insulation is cut away;
sometimes it’s removable, and I’m right there . . . we’re working in amongst
others. We’re keeping out of each other’s way. We’re not like in each other’s
way, but we often work close.” The record did not clarify how close Mr. Batchelor
worked to others removing asbestos, how often this occurred, or the duration of the
occurrences.
When he worked on the fossil fuel side, much of his work was on equipment
located outdoors, where there was a lot of dust from many sources. Sometimes he
would breathe dust which would cover his clothes and get in his hair. When asked
by his counsel if this dust was from the insulation, Mr. Batchelor answered, “It
could be from anywhere. It’s just dust. I mean, it could be stuff that’s been there
for months being shaken loose. It could be new dust being created. But it’s –
there’s a lot.” He later clarified that at least some of the dust was from insulation:
“Yes. Dust from insulation. That’s where it settles.” There was no direct testimony
that the dust contained asbestos, but as mentioned above, there was testimony that
some, but not all, of the insulation contained asbestos.
6
Workers inside the nuclear containment buildings wore safety clothes with
respirators. But when Batchelor worked on the fossil fuel side, he was never
warned by FPL or anyone else about asbestos. Neither FPL, Bechtel, nor any other
contractor provided him with asbestos respirators, safety clothes, safety equipment,
or laundry facilities. He could not recall seeing anyone on the fossil fuel side
wearing respirators when removing asbestos.
Batchelor’s medical causation testimony was provided by Dr. Murray
Finkelstein. Dr. Finkelstein never examined Batchelor and never visited Turkey
Point. He based his testimony on a review of Batchelor’s deposition and published
medical studies. Dr. Finkelstein testified that Mr. Batchelor’s mesothelioma was
caused by exposure to asbestos in three situations. First, he testified that Mr.
Batchelor’s exposure to asbestos while repairing and sanding brakes was a cause.
He reached this conclusion because Mr. Batchelor testified he repaired brakes as a
hobby and the medical studies showed a correlation between repairing brakes and
exposure to dangerous levels of asbestos.
Second, Dr. Finkelstein testified that Mr. Batchelor’s exposure to asbestos
when he sanded drywall during a year-long home improvement project was a
cause. He reached this conclusion because Mr. Batchelor testified he sanded
drywall as part of this project and the medical studies showed a correlation
between sanding drywall and exposure to dangerous levels of asbestos. 2
7
Finally, he testified that Mr. Batchelor’s exposure to asbestos at Turkey
Point was a cause. He reached this conclusion because Mr. Batchelor testified he
was nearby when insulation at Turkey Point was removed and medical studies
showed a correlation between removing insulation containing asbestos and
exposure to dangerous levels of asbestos for workers actually removing the
asbestos. In making this conclusion, Dr. Finkelstein inferred the insulation that was
removed around Mr. Batchelor contained asbestos. Also, even though he knew Mr.
Batchelor never removed insulation himself, Dr. Finkelstein assumed Mr.
Batchelor was close enough for long enough periods of time to sustain a
heightened level of risk similar to the risk of the workers actually removing
asbestos. Finally, he assumed Batchelor’s exposure to asbestos from all sources at
Turkey Point reached toxic levels, although he did not testify to any standard for
measuring dangerous levels of asbestos and did not testify that any such standard
was violated. Instead, he testified that there is no known safe level of exposure to
asbestos. His opinion did not qualify or quantify Batchelor’s exposure at Turkey
Point from any particular sources or any particular parties’ conduct.
Batchelor’s theory was that Bechtel was liable for any exposure he sustained
from any source at Turkey Point that was under Bechtel’s possession or control.
2 At trial, Bechtel moved to have the verdict form include as Fabre defendants the
entities that manufactured the brake linings and drywall that Dr. Finkelstein
testified also caused Mr. Batchelor’s mesothelioma. The trial judge denied this
motion but allowed Bechtel to add FPL and Foster Wheeler as defendants.
8
Under Batchelor’s premises liability theory, as he explained in his Answer Brief,
Bechtel was liable for the dangers of asbestos dust created by Bechtel “or by others
in areas of Turkey Point that were being controlled by Bechtel while Bechtel
performed its work at the time Mr. Batchelor was exposed” (emphasis added). One
of the major points of contention at trial, therefore, concerned proof of Bechtel’s
exercise of possession and control of the premises, a requisite element of a
premises liability theory.
On this point, the evidence showed that Turkey Point at the relevant time
was a large and complex facility. It provided power for all of South Florida. It
occupied over three thousand acres and contained two nuclear-fueled units and two
oil and natural gas fueled units. The units heated water, which converted into steam
and pushed blades of giant turbines. The turbines drove shafts, which powered
generators. The steam from the turbines was then recaptured, sent through an
extensive cooling system, and reused. On the nuclear side, to avoid contamination,
water heated by the nuclear plant was segregated from water converted to steam to
drive the turbines. The electricity created was converted by massive transformers
on site to a higher voltage for long-distance transmission. Indeed, Turkey point
was a wilderness of concrete, wires, pipes, cables, gauges, boilers, and turbines.
To keep the facility operating and secure required a large work force.
According to Mr. Batchelor’s undisputed testimony, on any given day, there were
9
four hundred FPL employees working on site. And this number did not include the
many contractors working on specialized projects which was happening “most of
the time.”
In addition to FPL employees, the workforce at Turkey Point included
contractors. Among the contractors were Bechtel and Foster Wheeler. Foster
Wheeler built and, under contract, maintained the boilers which were described as
being the size of a “cathedral.” The boilers were lined with insulation.
Bechtel built Turkey Point and was retained under contract—specifically,
under two Construction Services Agreements—to provide ongoing maintenance
services. The contracts provided that FPL would issue work orders at its discretion
to Bechtel and Bechtel would do the work requested on a cost-plus basis. FPL
would decide whether FPL or Bechtel would provide needed supplies, equipment,
and ancillary services. During the six years at issue, from 1974 to 1980, Bechtel
provided 1,050,070 man hours of services at Turkey Point. As discussed below,
the contracts required both Bechtel and FPL to carry insurance, with FPL required
to provide “Premises-Operation” insurance.
FPL periodically took each of the four units offline for repair and
maintenance. During these shutdowns, FPL tasked Bechtel with performing major
overhauls on the units; it tasked Foster Wheeler with performing maintenance on
the unit’s giant boilers, which were lined with insulation; and FPL directed its own
10
employees, including Mr. Batchelor, to perform certain maintenance on the units.
Even when contractors were present, which was most of the time, Batchelor
received work instructions only from FPL.
Among other things, the jury was instructed: “On Plaintiff’s claim, there is a
preliminary issue for you to decide. That issue is: Whether at the time and place of
the incident in this case, Mr. Batchelor was invited on the premises in the
possession or control of Bechtel.”
The jury entered a verdict for Mr. Batchelor in the amount of
$15,381,724.12 and for his wife in the amount of $6 million. It attributed the fault
as follows: Foster Wheeler 5%, FPL 35%, and Bechtel 60%. Bechtel timely moved
for directed verdicts and a new trial which were denied. This appeal followed.
II. Analysis
Bechtel raises four points on appeal: (1) the trial court should have directed a
verdict because there was insufficient proof of possession and control; (2) the trial
court should have directed a verdict because there was insufficient proof of
medical causation; (3) the trial court should have granted a new trial because of the
exclusion as Fabre defendants of the entities that manufactured the brake linings
and drywall that Dr. Finkelstein testified also caused Mr. Batchelor’s
mesothelioma; and (4) the trial court should have granted a new trial because the
11
adverse inference jury instruction was reversible legal error. We reach and decide
only the first and fourth of these issues.
A. The Adverse Inference Jury Instruction
Bechtel argues that, at the very least, its motion for new trial should be
granted because the adverse inference instruction that the judge gave the jury
constituted reversible error. We agree. The judge instructed the jury as follows:
If you find that Bechtel’s failure to produce persons
employed at Turkey Point between 1974 and 1980 to
testify regarding Mr. Bachelor’s work at Turkey Point is
unreasonable, and that their testimony would have been
relevant to Mr. Batchelor’s work activities, you are
permitted to infer that the evidence would have been
unfavorable to Bechtel.
Batchelor defends this instruction as a sanction for Bechtel’s failure to properly
prepare its corporate representative.
Under Rule 1.310(b)(6) of the Florida Rules of Civil Procedure, a
corporation can be required to produce a representative to testify “about matters
known or reasonably available to the organization.” This places a duty on the
corporation to affirmatively prepare its representative “to the extent matters are
reasonably available, whether from documents, past employees, or other sources.”
Carriage Hills Condo, Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329,
334 (Fla. 4th DCA 2013). Batchelor maintains that Bechtel’s failure to attempt to
12
locate retired employees who had worked at Turkey Point during the relevant time
period—well over thirty years ago—justified the adverse inference.
Adverse inferences are strong medicine: “For the court to tell a jury that an
adverse inference may be drawn from the failure to produce evidence invades the
province of the jury.” Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 346 (Fla.
4th DCA 2002). Because adverse inferences can invade the province of the jury,
such instructions are reserved for circumstances where the normal discovery
procedures have gone seriously awry. A good example is Golden Yachts, Inc. v.
Hall, 920 So. 2d 777 (Fla. 4th DCA 2006), where the plaintiffs notified a defendant
within ten days of an accident to preserve crucial evidence within the defendant’s
possession and the evidence was subsequently destroyed.
According to the trial court, the sanction here was imposed for Bechtel’s
failure to attempt to locate retired employees by mailing postcards. Obviously, a
party’s duty under Rule 1.310(b)(6) includes some reasonable efforts to contact
retired employees if current employees cannot provide the information requested.
Mailing postcards to locate retirees who had worked over thirty years ago and
could then be interviewed to prepare a corporate witness is a time-consuming
effort with no guarantee of success. Absent a specific court order to do so, we
would not interpret a party’s responsibilities to prepare a representative to extend
13
so far, particularly here, where the deposition is noticed to take place only a few
weeks before trial when there is reduced time for such a large effort.
The normal rule is that “[a] sanction remedy for failure to allow discovery is
legally unavailable to a party until the opposing party is first subject to and violates
an order to provide such discovery.” Saewitz v. Saewitz, 79 So. 3d 831, 835 (Fla.
3d DCA 2012). See also Chmura v. Sam Rodgers Props., Inc., 2 So. 3d 984, 987
(Fla. 2d DCA 2008) (“Where a party has never been instructed by the court to
comply with any discovery request, sanctions for noncompliance are
inappropriate.”) (quoting Thomas v. Chase Manhattan Bank, 875 So. 2d 758, 760
(Fla. 4th DCA 2004)).
We see nothing in these facts that would take the matter out of the normal
rules. In the absence of an order compelling Bechtel to undertake such an
extraordinary effort on the eve of trial which involved so little promise of results,
the trial court erred in imposing the sanction of an adverse inference jury
instruction. Because of the dearth of evidence discussed in the next section, this
error was not harmless. It would require reversal for a new trial, but for our next
holding.
B. Premises Liability
Bechtel next argues that its motion for a directed verdict should have been
granted because Batchelor failed to provide sufficient evidence to satisfy the
14
“control” element of the premises liability claim. We agree. There was not enough
evidence to allow this question to go to the jury.
One of the unusual aspects of this case is Batchelor’s theory of liability.
Batchelor did not sue Bechtel under a products liability theory for manufacturing
products containing asbestos. Nor did Batchelor sue Bechtel on the theory that
Bechtel removed asbestos in a manner that negligently exposed Batchelor to a
dangerous level of asbestos. Instead, Batchelor sued Bechtel on the theory of
premises liability.3
As alleged in Count I of the complaint, which is labeled “premises liability,”
Batchelor, as an employee of FPL “was invited to be on the premises of Defendant,
FPL.” Count I further alleges that Bechtel, because it was “in control of the
operations and maintenance of Defendant FPL’s power plant(s) upon which
Plaintiff performed services, owed Plaintiff a duty to keep the premises in a
reasonably safe condition, and owed a duty to Plaintiff to give him timely notice of
latent or concealed perils which were known or should have been known by
3 Batchelor contends on appeal that its Count II constitutes a general negligent
claim against Bechtel. We are not persuaded. While Count II is labeled
“Negligence,” it is clearly a products liability claim against “each Defendant who
was in the business of manufacturing, selling and/or distributing products” because
“Defendant’s products contained latent characteristics and/or design defects.” Nor
can Batchelor’s argument in this regard be reconciled with the jury instruction that,
as a “preliminary issue,” required the jury to decide whether “the premises was in
the possession or control of Bechtel.” A general negligence claim would not
require a tortfeasor to be in possession of the premises as a preliminary issue.
15
Defendant[ ] Bechtel.” Under his theory, as Batchelor explained in his brief,
Bechtel was liable for the dangers of asbestos dust created by Bechtel “or by others
in areas of Turkey Point that were being controlled by Bechtel while Bechtel
performed its work at the time Mr. Batchelor was exposed.” Batchelor’s premises
liability theory was that Bechtel, as the party in control of the premises, was liable
to warn Batchelor of asbestos dangers created by FPL – Batchelor’s own employer
– and by FPL’s other contractors.
Under a premises liability theory, “the fact that more than one person is
under a duty and one fails to perform is no defense to one who has assumed
control.” Worth v. Eugene Gentile Builders, 697 So. 2d 945, 947 (Fla. 4th DCA
1997). Batchelor asserted, and the evidence showed, that no one monitored
asbestos levels at the plant, warned Batchelor about asbestos, supplied asbestos
respirators, distributed asbestos safety clothes, or provided asbestos laundry
facilities. Whether or not FPL, as owner of the premises and as Batchelor’s
employer, had a duty to Batchelor in this regard, Batchelor’s theory was that
Bechtel, because it was in control of Turkey Point, assumed these duties and was
consequently at least jointly and severally liable for their breach.
In order to prove his theory, Batchelor was required to prove that Bechtel
controlled the premises. Accordingly, the parties agreed that the jury was
instructed that “there was a preliminary issue for you to decide,” namely whether
16
“Batchelor was invited on the premises in the possession or control of Bechtel.” As
the judge said to Bechtel’s attorneys at the conference over the verdict form, “if the
jury finds that you weren’t in possession of the premises, they’re going to find no
liability.”
“Premises liability is not predicated on ownership of the property;” instead,
the “duty to protect others from injury resulting from a dangerous condition on the
premises rests on the right to control access to the property.” Welch v. Complete
Care Corp., 818 So. 2d 645, 649 (Fla. 2d DCA 2002) (holding landlord who had
surrendered control of access to property entirely to tenant was not liable for
failure to protect invitee from dangerous condition on the property). See also
Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla. 5th DCA 1988) (“The crux of the cause
of action for premises liability is not legal title or ownership, but the failure of a
person who is in actual possession and control (be it the owner, an agent, a lessee,
a construction contractor, or other possessor with authority and control), to use due
care to warn or to exclude, licensees and invitees from areas known to the
possessor to be dangerous because of operations or activities or conditions.”).
For this reason, control of property for purposes of premises liability means
control that rises to the level of the ability to control access or exclude others from
the property. “The duty to protect others from injury resulting from a dangerous
condition on a premises rests on the party who has the right to control access by
17
third parties to the premises, be it the owner, an agent, or a lessee of the property.”
Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla. 5th DCA 1999).
Applying these principles to the case before us leads us to conclude that the
evidence at trial was not sufficient to support a jury finding that Bechtel possessed
or controlled the premises. Batchelor’s lack of proof on this key point begins with
the complete absence of direct evidence. No witness testified and no document
indicated that FPL surrendered, and Bechtel took possession of, all or any part of
Turkey Point. This lack of direct evidence might be due to FPL’s refusal to
surrender to a third party control of any part of Turkey Point which was, after all, a
heavily guarded nuclear facility providing electricity to all of South Florida. But it
might also be due simply to the over-thirty-year time lapse in time from the period
at issue to the date of the trial. Whatever the reason, there was no direct evidence
on this point at trial.
Instead of direct evidence, Batchelor, as he may, relies on inferences. In
particular, he asked the jury to infer that FPL surrendered possession based on
several circumstances. First, Bechtel was a very large contractor at Turkey Point
from 1974 to 1980. Sometimes Bechtel had trailers on site which it used for office
space or storage. In fact, Bechtel provided over one million man hours of services
at the plant over these six years. This number is impressive, but given Batchelor’s
own undisputed testimony that the plant was serviced by four hundred FPL
18
employees per day, plus contractors, Bechtel’s presence was still a fraction of the
presence of FPL’s own work force over those six years. The mere fact that Bechtel
was a large contractor does not support an inference that FPL surrendered
possession of Turkey Point to Bechtel.
Second, Batchelor references the service contracts, which provided FPL
would issue future work orders and Bechtel would fill the work orders on a cost-
plus basis. Batchelor argues these contracts gave Bechtel “control over the areas
where it performed work.” But Batchelor does not direct us to, and our own close
reading could not find, any language discussing Bechtel’s assumption of
possession or control of all or any part of the plant. Unlike, for example, many
leases that discuss the relative responsibility of the landlord and tenant to maintain
certain areas, the service contracts here are silent regarding any transfer of
possession or control. Cf. Benton Inv. Co. v. Wal-Mart Stores, Inc., 704 So. 2d
130, 133 (Fla. 1st DCA 1997) (where lease provided tenant and landowner had
joint responsibility to maintain parking lot, a jury could find tenant breached duty
to invitee criminally assaulted in parking lot).
Certainly, the simple existence of a cost-plus contract based on future work
orders does not support an inference that FPL surrendered possession of all or part
of the premises to Bechtel. If anything, the complete absence in the contracts of
any discussion of Bechtel assuming responsibility or control of any part of the
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premises undercuts any such inference. It is simple conjecture to assume such a
contract proves Bechtel assumed control of the plant.
Batchelor points to the sections of the contract providing that upon
termination, FPL “shall assume responsibility for and take possession of any work,
materials or equipment remaining on the project.” While this sentence uses the
word “possession,” it refers to possession only of “work, materials, or equipment.”
Notably absent is any reference to possession of the plant or premises. Under the
normal principle of interpretation that the expression of one thing intends the
exclusion of others, this language does not bolster, but instead undermines, the
inference that FPL transferred to Bechtel possession of the premises. Indeed, this is
exactly the language one would expect to see in a contract for services that did not
transfer control of the premises.
Batchelor also points to the specific provisions in the contracts regarding
insurance. The 1978 Agreement, for example, required Bechtel to maintain
liability insurance “with respect to the scope of the Bechtel Services.” It argues
that this insurance requirement indicates that Bechtel assumed control and
responsibility for the premises. But the contract also required FPL to maintain
comprehensive General Liability Insurance and Excess Liability coverages for
personal injury and death for, among other things, “Premises–Operations.”
20
In support of his insurance argument, Batchelor cites Jones v. Basha, Inc., 96
So. 3d 915, 917 (Fla. 2d DCA 2011), which upheld summary judgment for a
landlord based on a finding that the landlord had surrendered control to the tenant.
In that case, the Second District held that summary judgment for the landlord was
proper because the tenant had failed to create an issue of material fact simply by
showing the landlord carried its own liability insurance when the lease expressly
required the tenant to carry insurance. We do not believe Jones supports
Batchelor’s argument. Among other reasons, the contract required FPL to carry
“Premises-Operations” coverage. It is a complete non sequitur to assert that a
provision requiring FPL to carry insurance for the premises implies the parties
agreed that Bechtel would be liable for the premises. In fact, the opposite is true.
The inference Batchelor asks us to draw here is not simply speculation, it is
illogical. Accordingly, we do not see how these insurance provisions support an
inference that FPL was surrendering possession of all or part of the plant to
Bechtel.
Finally, Batchelor points to Bechtel’s maintenance work on the power units
as evidence of possession and control. As discussed above, from time to time, one
of the four power units were taken offline for maintenance. During these times,
FPL directed Bechtel to perform maintenance work on the units. But also during
these times FPL directed Foster Wheeler to perform maintenance work on the
21
boilers for the units. Additionally, during these times, FPL directed its own
employees to perform maintenance on the units, including, apparently, Batchelor.
Yet Batchelor very clearly testified that he was never under the control of Bechtel
or any other contractor.
That Batchelor performed maintenance work on the units when they were
down, at the same time that FPL and Foster Wheeler performed work on the units,
does not support an inference that Bechtel had control and possession of the units.
To the contrary, it appears from the limited evidence on this point that Bechtel did
not have the authority to exclude Foster Wheeler or FPL employees from the areas
because FPL itself sent Foster Wheeler and FPL employees to work on the units at
these times. Here, some direct evidence of how and who controlled the worksite
around the units could have tipped the evidentiary balance. But the record is
devoid of direct evidence on this point. In the absence of direct or circumstantial
evidence sufficient to support a logical inference, the conclusion that Bechtel
exercised control and possession is no more than conjecture, speculation, and
surmise. It might be true, but it might not be true. On this record, without more
evidence, a jury could not make a finding one way or the other. Batchelor, as
plaintiff, failed to carry his burden of proof.
As Batchelor admitted in his Answer Brief to this Court, his premises
liability case was that Bechtel controlled the premises to the extent that it was
22
liable for its failure to warn Batchelor, an FPL employee, of the dangers of
asbestos dust created “by others in areas of the Turkey Point power plant that were
being controlled by Bechtel.” The record in this case fails to include evidence
sufficient to make a finding that Bechtel controlled all or part of the premises
where Batchelor was exposed to asbestos. We are certainly sympathetic to the fact
that this lack of evidence may well be due to the simple passage of over thirty
years between the trial and the occurrence of the events at issue. But the lack of
evidence may also be due to the fact that FPL never permitted a third party to take
control and possession of all or part of this nuclear facility. In any event, because
of the lack of evidence, Bechtel’s motion for directed verdict should have been
granted. We reverse with instructions to enter judgment for Bechtel.
Reversed.
SCALES, J., concurs.
23
Bechtel Corp., et al. v. Batchelor
16-2624
EMAS, J., dissenting.
I respectfully dissent, and would affirm the final judgment entered pursuant
to a jury verdict in this case, because: 1) the trial court properly determined that
sufficient evidence was introduced to permit the jury to decide whether Bechtel
had “possession and control” of those portions of the premises where Batchelor
was exposed to asbestos during the relevant time period; and 2) the trial court did
not abuse its discretion in giving a jury instruction on a permissible adverse
inference.
BACKGROUND
From 1974 to 1980, Richard Batchelor was employed by Florida Power and
Light (“FPL”) at its Turkey Point Power Plant in Miami as an instrument and
control specialist. On December 4, 2015, he was diagnosed with terminal
mesothelioma resulting from exposure to asbestos-containing products. In January
2016, he sued several different companies, including Bechtel Corp. and Bechtel
Construction Co. (“Bechtel”), which constructed and thereafter maintained and
repaired the nuclear reactors at Turkey Point. Batchelor’s wife, Regina, sued for
loss of consortium.
24
At issue is Count I of the operative complaint, which sets forth a premises
liability claim and alleges, inter alia, that Batchelor was “exposed to asbestos-
containing products and/or inhaled dangerous and hazardous asbestos fibers while
working with or around asbestos-containing products at power plant(s) that
[Bechtel], by and through its agents, employees, representatives and/or others over
whom it exercised control, operated, directed, controlled and/or managed and/or
repaired.”
The case proceeded to a jury trial against Bechtel and one other defendant,
Foster Wheeler, another maintenance contractor at Turkey Point.4 The jury
returned a verdict in favor of Batchelor and against Bechtel. Following the verdict,
Bechtel moved for directed verdict, entry of judgment as a matter of law, and new
trial.
On appeal, Bechtel contends that this court should reverse and remand with
instructions to enter judgment in favor of Bechtel as a matter of law, based upon
insufficient evidence to establish that Bechtel was in possession or control of
FPL’s premises during the relevant time period. Alternatively, Bechtel contends, it
is entitled to a new trial because the trial court abused its discretion in giving an
adverse inference instruction to the jury. The majority agrees with both of these
4 Foster Wheeler settled with Batchelor the day before trial ended.
25
contentions. I conclude that neither contention has merit and that we should affirm
the jury’s verdict and the trial court’s final judgment entered upon that verdict.
1. Possession and Control of the Premises
The majority concludes that Bechtel was entitled to a directed verdict
because Batchelor failed to prove, as part of his premises liability claim, that
Bechtel was in possession or control of a portion of FPL’s premises between 1974
and 1980.
Batchelor contends he did present sufficient evidence on the question of
possession or control, such that it was up to the jury to decide whether Bechtel
exercised possession or control over the areas in Turkey Point where Batchelor
was exposed to asbestos-containing materials. The record reveals that Batchelor is
correct.
A premises liability claim is, at bottom, a negligence claim with the added
elements of possession/control of the premises, and notice of the dangerous
condition. See Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA
2001) (observing: “The elements for negligence are duty, breach, harm, and
proximate cause; the additional elements for a claim of premises liability include
the defendant’s possession or control of the premises and notice of the dangerous
condition.”). See also Solomon v. New ERA Meat No. 2, 961 So. 2d 989 (Fla. 3d
DCA 2007) (citing Lisanti, 787 So. 2d at 37).
26
While we review the denial of a motion for directed verdict or judgment as a
matter of law de novo, we must view the evidence and all inferences in a light most
favorable to Batchelor. Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA
2010). “A directed verdict is proper only when the record conclusively shows an
absence of facts or inferences from facts to support a jury verdict.” Id. See also
Regency Lake Apt. Assoc., Ltd., v. French, 590 So. 2d 970, 972 (Fla. 1st DCA
1991) (noting that “[u]nless only one possible conclusion can be drawn from the
facts presented, the issues of negligence and probable cause will normally be
answerable only by a jury.”)
Although Bechtel was an employee of FPL, it is undisputed that, at Turkey
Point, Bechtel installed equipment containing asbestos. When Bechtel performed
maintenance at Turkey Point, it would remove insulation and other asbestos-
containing materials, which, according to several witnesses, would create airborne
asbestos fibers that ended up on Batchelor’s clothing and hair, and up his nose.
Bechtel asserts that no evidence was presented that it was in possession or
control of Turkey Point because it was there simply as a contractor performing
maintenance for FPL, the owner. This argument belies the evidence presented,
ignores the fact-intensive nature of the issue, and fails to recognize the applicable
law. The well-settled law in this area eschews labels such as owner (FPL) or
contractor (Bechtel):
27
[A] cause of action for premises liability does not hinge on legal title
or ownership, but rather on the failure of the party who is in actual
possession or control to perform its legal duty. A party who exercises
control or implied authority over a piece of property by inviting
people to utilize the property in a particular manner may become
responsible to invitees in the same manner as an owner.
French, 590 So. 2d at 974.
As our sister court recognized in Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla.
5th DCA 1988):
The crux of the cause of the cause of action for premises liability is
not legal title or ownership, but the failure of a person who is in actual
possession or control (be it the owner, an agent, a lessee, a
construction contractor, or other possessor with authority or control),
to use due care to warn or to exclude, licensees and invitees from
areas known to the possessor to be dangerous because of operations or
activities or conditions.
See also Verges v. Pacheco & Sons, Inc., 822 So. 2d 542, 543 (Fla. 3d DCA
2002) (quoting Worth v. Eugene Gentile Builders, 697 So. 2d 945, 947 (Fla. 4th
DCA 1997)).
Moreover, Batchelor was not required to show that Bechtel had complete or
exclusive control over the premises in order to establish Bechtel’s duty. It was and
remains undisputed that FPL, and not Bechtel, owned Turkey Point at the time
Batchelor was exposed to asbestos. However, this is merely the starting point of
the analysis. Batchelor contended that Bechtel and FPL each owed a duty of care to
ensure the safety of Batchelor while he was working on those portions of Turkey
Point over which Bechtel and FPL had the ability to exercise joint control.
28
Two or more persons or entities can have the ability to exercise possession
or control and, if that is the case, either or both may be liable in a premises liability
action:
A duty, and therefore liability for breach of that duty, may rest upon
more than one party. Anyone who assumes control over the premises
in question, no matter under what guise, assumes also the duty to keep
them in repair, and the fact that others are under a duty which they fail
to perform is no defense to one who has assumed control, thereby
bringing others within the sphere of danger.
Craig v. Gate Maritime Properties, Inc., 631 So. 2d 375, 378 (Fla. 1st DCA
1994).
Thus the fact that Bechtel was “merely” a contractor working on premises
owned by FPL does not relieve Bechtel of this duty or absolve it of liability:
“Contractors may also share responsibility for injuries caused on or around a
construction site even though, as in the instant case, the landowner retains some
possession and control of the premises.” Worth, 697 So. 2d at 947.
At the conclusion of the trial, the trial court properly instructed the jury on
these established points of premises liability law:5
Control over property sufficient to establish liability does not have to
be complete or exclusive. More than one party may share
responsibility, possession, or control over property and each may
therefore, be held liable for injuries that occur on the premises.
Anyone who assumes control over the premises in question, no matter
under what guise, assumes also the duty to keep them in repair, and
the fact that others are under a duty which they fail to perform is not
5 On appeal, Bechtel does not assert that these instructions were an erroneous
statement of the law.
29
[a] defense to one who has assumed control, thereby bringing others
within the sphere of danger.
So the question is not (as the majority appears to posit) whether FPL (as
owner) had possession or control of those portions of Turkey Point where
Batchelor worked. The answer is most certainly “yes.” The question is whether
any evidence was presented to permit the jury to determine that Bechtel shared the
ability to control those portions of Turkey Point where Batchelor worked and
where he was exposed to asbestos. The answer, again, is most certainly “yes.”
Importantly, whether a defendant exercises sufficient possession or control
over the premises is ordinarily a question of fact to be resolved by the jury.
French, 590 So. 2d at 974; Cook v. Bay Area Renaissance Festival of Largo, Inc.,
164 So. 3d 120 (Fla. 2d DCA 2015); Florida Power & Light Co. v. Morris, 944 So.
2d 407, 410 (Fla. 4th DCA 2006) (holding: “Generally, control and responsibility
are issues of fact to be resolved by the jury.”)
Bechtel was the contractor performing construction, maintenance, and
overhaul pursuant to two four-year construction services agreements entered into
by Bechtel and FPL during the six- year period (1974-1980) that Batchelor was
exposed to asbestos at the Turkey Point Power Plant. The written construction
services agreement between Bechtel and FPL provided that Bechtel was to
“perform construction, construction management and related services as requested
by FPL from time to time in connection with the Turkey Point Power Plant
30
(Turkey Point Units 1, 2, 3 and 4) . . . .” The contract included a scope of services
provision, under which Bechtel was to perform, inter alia, the following work:
- Steam Generator (hereinafter SG) repair program, including SG
unloading facility, SG repair, SG storage compound, nuclear
maintenance buildings, containment cranes, and miscellaneous
temporary facilities.
- SG protection program, including feedwater heater replacement,
moisture separator tube bundle replacement, SG and condenser wet
layup systems, condensate polishing system, feedwater
recirculation, feedwater demineralization, and feedwater
deaeration and condensate storage system.
- Other items of a backfit program, including auxiliary feedwater
upgrade, SG blowdown recovery, site security upgrade, condenser
retubing, instrument air and breathing air systems modification,
and miscellaneous maintenance platforms.
Bechtel was responsible for maintaining and repairing the steam generators,
whose component parts included boilers and pipes insulated with asbestos. The
construction services agreement gave Bechtel authority to subcontract or delegate
work to affiliates “without the prior approval of FPL.” Upon termination of the
agreement, FPL “shall assume responsibility for and take possession of any work,
materials or equipment remaining on the Project.”
Bechtel was required under the terms of the construction services
agreements to maintain extensive liability insurance, including insurance for injury
to persons other than Bechtel’s employees.
31
The magnitude of the work performed at Turkey Point by Bechtel cannot be
overstated, in terms of either manpower or scope. To illustrate this, Batchelor
introduced, without objection, a summary document which showed that during the
four-year period from 1976-80, Bechtel employees worked a total of 1,050,070
man hours at Turkey Point. Using this million hour figure, the following examples
illustrate the average number of Bechtel employees who may have been working at
Turkey Point during the relevant time period:
- 126 Bechtel employees working 40 hours a week, 52 weeks a year, for
four years.
- 190 Bechtel employees, working 30 hours a week, 46 weeks a year, for
four years.
- 220 Bechtel employees, working 30 hours a week, 40 weeks a year, for
four years.
As this summary document established, at a very minimum, an average of
126 Bechtel employees were working at Turkey Point every single day, Monday
through Friday, eight hours a day for four years. This helps reveal Bechtel’s
pervasive presence on the project.
Batchelor also introduced Bechtel’s monthly billing records during this same
four-year timeframe. It showed that, in the one month in which Bechtel billed its
fewest hours (May 1977), it logged 4,483 hours, which amounts to twenty-eight
32
Bechtel employees working full-time at Turkey Point for that entire month. By
contrast, in the month where Bechtel billed the most hours (May 1980), it logged
76,098 hours, which amounts to 475 Bechtel employees working full-time at
Turkey Point for that entire month. It can hardly be contended that Bechtel was
merely one of many contractors at the Turkey Point power plant during the time
period in question. In fact, Bechtel’s own corporate representative acknowledged
that Bechtel actually built all four of the power-generation units at Turkey Point.
It is thus clear that Bechtel did not simply have a few of its workers show up
each day with a tool belt around their waist, perform some work, and then leave.
Bechtel was a constant presence at Turkey Point during the relevant maintenance
and overhaul time periods, during which the reactors at Turkey Point would have
to be shut down. FPL employees did not perform the shutdown work; instead, it
was performed by outside contractors. And as Batchelor testified, Bechtel was
“the contractor that did the shutdown work.” During these maintenance and
overhaul projects, Bechtel hauled in large trailers for use by its hundreds of
workers, and utilized cranes to lift and place these large trailers on top of the
turbine decks or other areas where Bechtel was performing its work. At these
times, Bechtel’s employees and the FPL employees, like Batchelor, would work
alongside each other, each performing their own duties, but the FPL workers were
not staffed to work on the overhaul.
33
The evidence described above created, at the very least, an inference that
Bechtel had the ability to exercise joint control of those portions of the Turkey
Point equipment and premises during the overhaul and maintenance periods, which
is when the most significant insulation removal took place and when Batchelor was
exposed to asbestos. I do not suggest that the evidence of Bechtel’s ability to
control portions of Turkey Point was overwhelming. But that of course is not the
standard. The standard is simply whether there was any evidence, or inferences
from the evidence, to show that Bechtel shared responsibility, control or possession
of those portions of the premises where Batchelor was exposed to asbestos. I
would hold that Batchelor met this low threshold.
Similarly, the question is not whether this panel agrees with the jury’s
ultimate resolution of that fact-intensive determination. Instead, the question is
whether there was sufficient evidence to permit the jury make its determination. I
would affirm the final judgment entered by the trial court upon the jury’s verdict,
and therefore, must respectfully dissent.
2. Violation of Rule 1.310 and the Adverse Inference Instruction
I further note my dissent to the majority’s determination that the trial court
abused its discretion in giving the adverse inference instruction. We review the
trial court’s rulings on discovery violations, and its decision to give a jury
instruction, under an abuse of discretion standard. Toll v. Korge, 127 So. 3d 883
34
(Fla. 3d DCA 2013). The majority concludes that the trial court abused its
discretion in giving an adverse inference instruction as a sanction for violating
Florida Rule of Civil Procedure 1.310(b)(6). I believe, however, that the majority
opinion fails to view the record below in a light most favorable to affirming the
trial court’s ruling, and fails to give proper deference to the trial court’s action. I
believe the trial court properly imposed the sanction and crafted an appropriate
permissive adverse inference instruction. Nevertheless, I find it unnecessary to
further elaborate, as the majority’s determination of this issue is rendered moot (or,
at the very least, dicta) by the dispositive nature of its holding that the trial court
erred in not directing a verdict in favor of defendant on the premises liability claim.
I would affirm the final judgment in this case, and therefore respectfully
dissent.
35