Atlantic Coast Development Corp. v. Napoleon Steel Contractors, s. 79-913

• Decision Date: 10 June 1980
• Docket Number: Nos. 79-913,79-1154,s. 79-913
• Citation: 385 So.2d 676
• Parties: ATLANTIC COAST DEVELOPMENT CORPORATION, Appellant, v. NAPOLEON STEEL CONTRACTORS, INC., Nelacar Corp., and Nelacar ConstructionCorp., Appellees.
• Court: Florida District Court of Appeals

Page 676

385 So.2d 676

ATLANTIC COAST DEVELOPMENT CORPORATION, Appellant, v. NAPOLEON STEEL CONTRACTORS, INC., Nelacar Corp., and Nelacar ConstructionCorp., Appellees.

Nos. 79-913, 79-1154.

District Court of Appeal of Florida, Third District.

June 10, 1980.

Rehearing Denied July 25, 1980.

Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Owen Ricker, Jr., Miami, for appellant.

Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart and Richard G. Daniels; High, Stack, Lazenby, Bender, Palahach & Lacasa and George C. Bender, Miami, for appellees.

Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.

NESBITT, Judge.

This is an appeal from a judgment for common law indemnity entered upon a jury verdict against a subcontractor who was the employer of a workman killed on a construction site. The indemnity suit followed a settlement agreement reached by the appellees and the personal representative of the decedent's estate in a wrongful death action.

The issue before this court, simply stated, is whether one may delegate a nondelegable duty. Upon analysis, we find this apparent inconsistency is neither apparent nor inconsistent and affirm the judgment.

The accident occurred on a construction project in which appellees, Nelacar Corporation and Nelacar Construction Corporation, were owner and general contractor, respectively. Appellee, Napoleon Steel Contractors, Inc. (Napoleon), was a subcontractor and had a crane set up on the construction site. For convenient reference and because Nelacar Corporation and Nelacar Construction Corporation have presented themselves in this appeal and in the action below collectively, they will be referred to as "Nelacar". Appellant, Atlantic Coast Development Corporation (Atlantic), also a subcontractor on the project, was assigned the task of preparing the forms for the pouring of concrete "decks". This unfortunate accident occurred on one of those "decks" which was several stories below a platform extending out from the eleventh floor to which Napoleon was hoisting concrete blocks with its crane.

Recognizing the danger of having men working below a crane that was lifting blocks, the crane operator for Napoleon spoke with, among others, Hershel Carver, Atlantic's on-the-job supervisor. The problem stemmed from the fact that Napoleon's crane operator, although being able to check the area before a particular lift was made, was unable to watch the load he was raising on the crane and the deck area several stories below simultaneously. A system was worked out to warn the men working nearby whereby a man who was loading the blocks on the crane would yell out a warning at the time a lift was about to be made. On one such lift, while the blocks were being unloaded on the platform on the eleventh floor, some blocks fell and one struck and killed the decedent, Frank Edwards.

A crane in operation is inherently dangerous. Geffrey v. Langston Const. Co., 58 So.2d 698 (Fla.1952). Napoleon, involved in this inherently dangerous activity, had a nondelegable duty to use care in carrying out its responsibilities. Part of its responsibility would be to look out for the safety of the workers around the crane. The nature of the operation of a crane precluded the operator from continually checking to ensure that no one was dangerously close to the area during a lift.

The facts presented to the jury indicated that Atlantic, through its supervisor, Hershel Carver, agreed to assume the duty, which was otherwise owed by Napoleon, of keeping his men safely away from the proximity of the crane while it was in operation.

Holding a particular undertaking to be nondelegable means that responsibility, i. e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the task. "Nondelegable" applies to the liabilities arising from the delegated duties if breached. Accord Restatement (Second) of Agency § 214 and Ch. 14 Title C. Introductory Note (1958); Restatement (Second) of Torts § 427 (1965); see Mills v. Krauss, 114 So.2d 817, 819 (Fla. 2d DCA 1959), cert. denied 119 So.2d 293 (Fla.1960).

In discussing nondelegable duties and indemnity, Chief Judge Breitel, for the Court of Appeals in New York, in Kelly v. Diesel Const. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 7, 315 N.E.2d 751, 754, 358 N.Y.S.2d 685, 689-90 (1974), stated that:

(T)he use of the term "nondelegable" was applied properly not to duties that could not be delegated but to liabilities arising from the delegated duties if breached. The fact and the law always was that the duties could be delegated but that first instance liabilities which arose from breach of the duties could not be delegated as against persons injured by the breach of the duties. And, of course, in reason, one who delegated a duty to another should have continued to be entitled to recover from the delegate for the harm sustained by him because of the delegate's breach of duty, namely, having been cast in judgment as vicariously liable.

Our Supreme Court, in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), determined that:

Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought. . . . It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter's wrongdoing for which the former is held liable.

374 So.2d at 492-93.

In the instant case, Nelacar, who was the owner and general contractor and actively supervised the daily construction operations, had a duty to keep its premises safe for all the workmen on the job and will be ultimately held liable for injuries occurring on its worksite. Conklin v. Cohen, 287 So.2d 56 (Fla.1973); 20 A.L.R.2d 868, 873 (1951). ¹ Additionally, "(w)hen the nature of the work done by an independent contractor is inherently dangerous, (such as use of a crane) then the duty of care in its performance is nondelegable by the employer." Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So.2d 767, 772 (Fla. 3d DCA 1968), cert. denied 222 So.2d 751 (Fla.1969). If an injury resulting therefrom was caused solely through the fault of another, Nelacar would be held responsible due to its vicarious, constructive, derivative, or technical liability. Houdaille Industries, Inc. v. Edwards, supra. Absent a finding of actual fault on the part of Nelacar, Nelacar would be entitled to indemnity from one who should bear the cost because it was the...