Probable Causation

Published January 2014
by Ted Babbitt

I thank Rebecca Mercier-Vargas who was the appellate attorney who successfully obtained a reversal in the case of Friedrich v. Fetterman and Associates, P.A., 38 Fla. L. Weekly S768 (Oct. 24, 2013).

Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984) established the causation test in a negligence action in Florida.  There, the Supreme Court held that in order to be successful, the plaintiff must show that there is sufficient evidence that it is more likely than not that the negligence of a defendant caused plaintiff’s injury.  The issue of what kind of evidence is sufficient to support that conclusion was the subject of Friedrich, supra.

In that case, the plaintiff was in an automobile accident and sought the services

of a personal injury firm.  While sitting in a conference room chair in the attorney’s office, the chair collapsed and plaintiff was seriously injured.  Plaintiff alleged that he was a business invitee and that the law firm owed a duty of reasonable care to warn him of the chair’s dangerous condition.

The evidence established the chair had been purchased years before and had been used daily without incident but that the law firm had not made any physical inspection of the chair.  The experts for both sides agreed that the defect in the chair was a manufacturing defect which had been there since the chair was produced and that it was not visible to a visual inspection.

Plaintiff’s expert testified that it was appropriate to do a “flex test” of the chairs every six months and that a hands on inspection of the chair in that manner would have found the weakness.  The defendant’s expert testified that that kind of inspection would reveal nothing and that the best test was daily use.  The jury found for the plaintiff and a substantial judgment was awarded against the law firm.

The Fourth District reversed in Fetterman and Associates, P.A., v Friedrich, 69 So. 3d 965 (Fla. 4th DCA 2011).  The Court relied for its reversal on the cross examination of plaintiff’s expert in which he admitted that he had no opinion as to when exactly the failure of the chair would have been discoverable and that it could have been at any time prior to the accident.  Thus, he testified that he had no time frame as to when the testing would have been effective.

The Supreme Court reversed the Fourth District and reinstated the verdict, finding that the Fourth District had impermissibly reweighed the evidence that was presented to the jury and that there was sufficient evidence to support the verdict.  At Page 770, the Supreme Court held:

Here, the jury was presented with conflicting testimony

as to whether the negligence probably caused the

injury and whether the injury would not have occurred

but for the negligence.  Evidence was presented that

could serve as a basis to support a finding that the

defendant’s negligence caused the injury, i.e.,

Friedrich’s expert testified that a hands-on inspection

should have revealed the defect.


Based on the conflicting testimony above, whether

the weak joint in the chair would have been discovered

if Fetterman had a procedure in place to inspect the

chair was ultimately an issue to be determined by the

jury.  In this case, there is sufficient “proof that the

negligence probably caused the plaintiff’s injury,”

such that the trial court did not err in denying

Fetterman’s motion for a directed verdict.  Gooding,

supra, at 1018.


What is interesting about this opinion is that the cross examination of plaintiff’s expert resulted in an admission that it was possible that an inspection, even if performed as plaintiff’s expert thought was reasonable, might not have revealed the defect.  Notwithstanding that testimony, the Supreme Court relied upon the expert’s conclusion that it was probable that an inspection would have revealed the defect.  The Supreme Court held, in essence, what Gooding, supra, requires is any admissible evidence that there is a probability that defendant’s negligence caused plaintiff’s injury.  Once that testimony is admitted, even if its underpinnings are rendered suspect by an inability of the witness to establish within certainty that that probability would have occurred under the facts of the case, the assertion of the expert opinion that it is more likely than not that the negligent act caused the injury is sufficient to support a jury determination.  While reasonable people could differ as to the sufficiency of the support for the expert’s opinion, that is precisely why jury trials are utilized to make findings of fact and a directed verdict is prohibited under those circumstances.




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