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Florida Construction Law News

15JUN 2016

Striking Building Code “Experts”



The Third District Court of Appeal recently addressed the admissibility of expert testimony in a case involving the Florida Building Code (the “Building Code” or the “Code”), including the existence of any legal duty created under the Code, in Fuentes v. Sandel, Inc.[1]   The underlying claim involved an unharnessed worker who fell through a skylight and suffered fatal injuries. The defendants obtained final summary judgment from the trial court. The plaintiff appealed the entry of summary judgment, as well as the court’s order granting a motion to strike the affidavit of plaintiff’s expert witness, George W. Zimmerman.[2]

The plaintiff filed an affidavit prepared by Zimmerman in opposition to one defendant’s Motion for Final Summary Judgment. In the affidavit, Zimmerman identified himself as an architect and an “Expert” in several areas, including Building Code and Regulation Compliance.[3] Zimmerman’s affidavit stated his opinion that “the Defendants created an unreasonably dangerous condition” at the location where the fatality had occurred. Zimmerman’s affidavit also set forth various statements that the Court later deemed improper legal conclusions, such as the following:

“Building owners, occupants, and those who control existing buildings have a duty to maintain the structural sufficiency of their buildings in accordance with the technical requirements of the Code . . . .”

Defendant “the tenant, had an equitable interest in the premises and had a duty to ensure the safety of the premises, and it’s [sic] compliance with Code mandated structural standards.”

“Section 105.1(a) of the South Florida Building Code requires that the subject premises be continuously maintained in a safe condition and in compliance with the technical provisions of the Building Code, therefore [Defendant] had a duty to do so.”

Defendant “had a duty to ensure the maintenance of the plastic roofing panel . . . per Sections 3505.1(a) & (b) and 3505.2 of the applicable South Florida Building Code. If such maintenance had been provided the subject accident would not have happened.”

Defendant “failed to ensure the structural loading capability of the plastic roof panels, as required by the South Florida Building Code . . . .”

The inaction of [Defendant], to fulfill their Code mandated duty, contributed to the structural failure . . . in violation of South Florida Building Code, Section 2301.1(c), thereby contributing to the Plaintiff’s fall and death.”[4]

One of the defendants argued that Zimmerman attempted “to usurp this Court’s authority by giving his legal interpretation” of the Building Code, and consequently moved to strike the affidavit.[5] The court granted the Motion to Strike, summarizing Zimmerman’s testimony as providing “opinions concerning certain duties which the Code imposes on [defendant] including the duty to maintain structural sufficiency of the warehouse, the duty to comply with the Code under Section 304.2, and the duty to continuously maintain the premises in a safe condition. Moreover, he opined that [defendant’s] failure to ‘fulfill their Code mandated duty’ contributed to Plaintiff’s death.”[6] The trial court declared that “the existence of a duty is a question of law to be decided by the Court (citations omitted), and specifically the interpretation of the Code is a question of law not to be relegated to experts.”[7] Additionally, the trial court noted that, “Mr. Zimmerman’s opinion is plainly wrong . . . .”[8]

On appeal, the Third District Court of Appeal affirmed the trial court’s decision, reasoning that “the trial court did not abuse its discretion when it struck Zimmerman’s affidavit because [the affidavit] was permeated by improper legal conclusions,” including Zimmerman’s analysis of the purposes of the Building Code, his statements concerning the defendant’s legal duty to ensure safety, and his conclusion that that duty was breached.[9]

This case demonstrates that just because an individual may be an “expert” in his or her field, that qualification alone does not mean that any proffered testimony is appropriate or admissible. The case makes clear that it is the role of the trial court, and not an expert, to interpret the Building Code and the existence of any duty created thereby.


[1] Fuentes v. Sandel, Inc., 189 So. 3d 928 (Fla. 3d DCA Mar. 23, 2016).
[2] Id.
[3] Plaintiff’s Am. Notice of Filing [Aff. of George W. Zimmerman], Fuentes v. Sandel, Inc., et al., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[4] Id.
[5] Rolling Shield’s Mot. To Strike Aff. of George Zimmerman with Incorporated Mem. Of Law at 1, Fuentes v. Sandel, Inc., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[6] Order Granting Rolling Shield’s Mot. to Strike the Aff. of George Zimmerman, at 1, Fuentes v. Sandel, Inc., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[7] Id. at 2.
[8] Id.
[9] Fuentes, 189 So. 3d 928.