Belmar, Inc. v. Dixie Bldg. Maintenance, Inc., 69--152

• Decision Date: 09 September 1969
• Docket Number: No. 69--152,69--152
• Citation: 226 So.2d 280
• Parties: BELMAR, INC., a Florida corporation, Appellant, v. DIXIE BUILDING MAINTENANCE, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 280

226 So.2d 280

BELMAR, INC., a Florida corporation, Appellant, v. DIXIE BUILDING MAINTENANCE, INC., a corporation, Appellee.

No. 69--152.

District Court of Appeal of Florida, Third District.

Sept. 9, 1969.

Rehearing Denied Sept. 26, 1969.

Cassel & Benjamin, Miami, for appellant.

Lloyd S. Marks, Miami, for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.

PEARSON, Chief Judge.

Belmar, Inc., occupies a portion of a building. The remainder is occupied by a third party which employed Dixie Building Maintenance, Inc., to maintain only its portion of the building. Belmar and Dixie had no contract for maintenance or cleaning. The portion Belmar occupies was separated from the third party's portion by a partition wall which ended a few feet from the ceiling. Investigators hired by Belmar intercepted employees of Dixie in the act of stealing Belmar's goods. Dixie's employees had come to the building to clean the third party's premises and had gained access to Belmar's premises by climbing over the partition wall. Belmar filed a complaint against Dixie alleging, among other things, that:

'7) The Defendant corporation knew or should have known of the activities of its employees and would have known of the activities of its employees had proper supervisory control been exercised over the employees pursuant to their cleaning contract at the premises.

'8) As a direct and proximate cause of the Defendant corporation's failure to maintain proper supervisory control over their employees and through the negligence of the Defendant corporation in supervising the employees at their cleaning assignments at the premises, inventory of BELMAR, INC. was removed from the portion of the premises occupied by BELMAR, INC., contrary to their wishes and desires, to the extent of $9,135.42.'

Dixie's motion to dismiss the complaint was granted without leave to amend. This appeal by Belmar followed.

The appellant states its claim is based on the alleged negligence of the appellee. An indispensible element of actionable negligence is the existence of a duty towards the injured person on the part of the person charged with negligence. 23 Fla.Jur., Negligence § 9; 38 Am.Jur., Negligence § 12; 65 C.J.S. Negligence § 4(1). The duty owed is determined by the risk which is reasonably forseeable. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253 (1928).

The cases dealing with the question of a master's tort liability for theft by his servant are collected and discussed in an annotation at 15 A.L.R.2d 829--861 (1951). Those cases suggest that a master will be held liable for theft by his servant in any of the following situations: (a) the theft was committed in the scope of the servant's employment; (b) the master ratified an act of theft committed outside the scope of the servant's employment; (c) the master was negligent in hiring or retaining the servant; (d) the theft is 'in and of itself a violation of some duty the master had assumed towards the person injured, but which the master had undertaken to perform through the servant'; (e) the master is an innkeeper. 15 A.L.R.2d at 832, 833. Category (d) applies to masters who are bailees. 15 A.L.R.2d at 832.

Our examination of the cases cited in the annotation and of the principles (including...