Attorneys for Colombian muralist Mercedes Zota said analyzing her 14-foot
fall onto a marble staircase was a bit like trying to unscramble an egg.
There were no witnesses to the February 2004 accident in which she fell
from a catwalk while finishing work on a second-floor ceiling of a $3.2
million Lighthouse Point spec mansion.
Lawyers Matthew Weissing and Robert Kelley pieced together the events from
circumstantial evidence because she was left in a coma for months and
lost 25 percent of her brain mass.
Then they had to convince a jury that home-builder Broward Executive Builders
was at fault because Zota’s catwalk was not flanked by guardrails
as the building code required. Her family reached confidential pretrial
settlements with the property owner, its insurer and subcontractors.
In early June, Zota was awarded $5.4 million after the jury found her 50
percent at fault, reducing the $10.8 million verdict.
“The problem and challenge here was that nobody saw her fall,”
said Weissing, a partner in the Fort Lauderdale firm of Farmer Jaffe Weissing
Edwards Fistos Lehrman. “She was found at the bottom of the staircase
after a construction worker heard the impact of her hitting the marble.”
The last time Zota was seen before that, she was sitting on scaffolding
attached to the catwalk that stretched from one end of the room to the
other, said Kelley/Uustal’s Robert Kelley, a partner in the Fort
Lauderdale firm who helped try the Broward Circuit Court case.
“Nobody knew if she was climbing up or down, and it was difficult
to prove what happened,” he said.
Her attorneys brought in expert witnesses to analyze blood spatter patterns
and recreate the events based on where her earrings and cell phone landed.
“We needed to create a compelling case where the jury could understand
she wasn’t responsible for her injuries and that the general contractor
could have and should have put up guardrails,” Weissing said. “In
the course of discovery the contractor [Broward Builders' Jack Farji]
admitted the rails were down, and I was able to demonstrate that they
weren’t [in place] for at least a two-month period prior to the
A mechanical engineer at the University of Miami testified simple guardrails
made of plywood would have prevented Zota’s accident, and a former
Broward County medical examiner testified the artist’s injuries
were consistent with a high-energy fall — refuting defense claims
she fell while walking down the staircase.
“He testified that she must have come from at least second-floor
height,” said Weissing
He noted there was little physical evidence — save for a disputed
scuff mark on one wall — on the home’s second floor.
Zota was rushed to a hospital before the first pictures were taken at the
scene, and protective paper covering the staircase, which theoretically
could have helped illustrate how and where Zota landed, had been removed
the morning of the accident.
“We had to make sense of what was available,” Weissing said.
He and Kelley, who joined the case in 2008, said they also countered defense
claims that Zota could have refused to get up on the catwalk and walked
off the job rather than work without rails.
The defense also claimed the mural’s completion wasn’t a priority
for the builder.
“We showed that they were pushing her to come in and keep going,”
Weissing said. “These guys were just pushing this house through.
… I went through every bill and every contract, and not one had
anything to do with safety.”
Kelley concurs. “This could have been prevented with a really simple
fix,” he said. “What makes it worse is that the day after
the accident, the guardrails were nailed back up.”
To Weissing, the real tragedy is that Zota, previously a vibrant artist,
is now unable to paint, take an active part in her life or live a normal
family life. “One of the most challenging parts of my job is how
to present to a jury the value of what has been lost,” he said.
The jury did not award any money to Zota’s family, which Weissing
and Kelley say they are entitled to. But Broward Circuit Judge Peter Weinstein
granted a request for a second trial that is restricted to a loss of consortium claim.