When It’s Necessary to Present Expert Testimony of Industry Standard to Establish the Standard of Care in Negligence Actions: The Case of the Roofer

The United States Court of Appeals for the Eleventh Circuit recently issued an opinion which has, in essence, confirmed the steps necessary in establishing a negligence action against a roofer in Florida.  While the standard of care necessary to prove whether a roof was negligent is a seemingly simple, everyday legal concept, proving it up is an altogether more challenging idea.

In 2007, Hawaiian Inn Beach Resort (“Hawaiian”), a Florida condominium, contracted with Island Dream Homes (“IDH”) for roof repair.  While IDH was conducting the repairs, a large stone veneer wall fell, causing $231,467.41 in property damage.  After paying Hawaiian for the damage under its property insurance policy, Hawaiian’s insurer, Insurance Company of the West (“ICW”), brought a subrogation action against IDH for negligence.  At the close of ICW’s case, the district court granted IDH’s motion for judgment as a matter of law, holding that no reasonable jury could find that IDH was negligent because ICW failed to present any evidence on the standard of care in the roofing industry.

IDH, in an effort to stop the roof leak at the south side of the reception area, began to install certain flashing to redirect water off the roof.  IDH presented evidence that, pursuant to roofing guidelines and the Florida Building Code, it was required to cut through the exterior veneer of of the building to reach a structural wall.  Prior to performing this cut of a several decades old, four (4) to six (6) inch wall, IDH failed to test the thickness of the veneer, perform tests on the structural integrity of the wall, review the building’s original plans, or consult with an engineer.  ICW took the position that IDH was negligent in failing to take these steps, however, ICW did not present evidence that these steps are customary or standard in the roofing industry.

At the close of ICW’s case, the district court granted IDH’s judgment as a matter of law, holding that ICW failed to present evidence that IDH breached the standard of care “that a roofer would exercise under the circumstances.”  ICW contends that the court erred by applying a “professional” standard of care in [the] case.”  Specifically, ICW argued that roofers are not “professionals” under Florida law, and, thus, IDH should be held only to the standard of an ordinary person, rather than to the standard of a professional.

The Eleventh Circuit opined that the problem with ICW’s argument is that roofers are not ordinary people who happened to be working on a roof – they are trained roofers. Accordingly, ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.  The Court further pointed out that ICW’s interpretation of Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999) was misplaced.  Ultimately, the Court opined that Morainsais does not stand for the proposition that only persons engaging in vocations that require a four-year college degree may be held to a “standard of care used by similar professionals in the community under similar circumstances.” But the Court ruled that “regardless of whether roofers are considered ‘professionals’ in Florida, however, ICW was required to present evidence on the standard of care in the roofing industry – either by expert testimony or by presenting testimony of roofing custom.” If at trial, and the Plaintiff fails to introduce evidence of the standard of care for a roofer, judgment as a matter of law, as is the case here, may be appropriate.

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