Bennett M. Lifter, Inc. v. Varnado By and Through Varnado

• Decision Date: 26 November 1985
• Docket Number: No. 84-251,84-251
• Citation: 480 So.2d 1336,10 Fla. L. Weekly 2606
• Parties: , 10 Fla. L. Weekly 2606 BENNETT M. LIFTER, INC., Appellant, v. Louis Coleman VARNADO, a minor, By and Through his mother and next friend Andrea VARNADO, and Andrea Varnado, individually, Appellees.
• Court: Florida District Court of Appeals

Page 1336

480 So.2d 1336

63 A.L.R.4th 871, 10 Fla. L. Weekly 2606

BENNETT M. LIFTER, INC., Appellant, v. Louis Coleman VARNADO, a minor, By and Through his mother and next friend Andrea VARNADO, and Andrea Varnado, individually, Appellees.

No. 84-251.

District Court of Appeal of Florida Third District.

Nov. 26, 1985.

Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.

Joe N. Unger, Proenza & White, Miami, for appellees.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

This appeal takes us again into the murky waters of proximate causation. The main issue is whether the question of proximate cause should have been taken away from the jury and decided as a matter of law.

Louis Varnado, a four-year-old child, sustained serious bodily burns from boiling water carried in a pot by his grandmother when he collided with her. The grandmother was carrying water from the kitchen to the bathroom of the house which Louis' mother leased from defendant, Bennett M. Lifter, Inc. At the time of the accident on Saturday, March 28, 1981, the electric hot water heater at the Varnado house had been inoperable for three days.

Although the grandmother, Mrs. Wilson, reported the problem to an employee of the defendant, no one was dispatched by the defendant to repair the heater between Wednesday afternoon and Saturday. During those three days Mrs. Wilson boiled pots of water on the stove and carried them the six to seven feet from the kitchen to the bathroom for purposes of personal cleanliness and hygiene of the household members.

On the day of the accident, Louis' mother, Andrea Varnado, and her mother, Mrs. Wilson, were filling the bathtub with hot water so that Mrs. Varnado could take the baths prescribed by her doctor. Mrs. Varnado had already boiled three pots of water on the kitchen stove, and transported them to the bathroom. While in the bathroom with Louis at her side, she realized that she did not need a fourth pot and instructed Louis to tell his grandmother that they had enough. The accident occurred as the child left the bathroom on the way to the kitchen to deliver the message.

The evidence showed further that the hot water heater, which had become inoperable on three or four occasions over the prior six months, had been repaired by the defendant only by replacing fuses or instructing the plaintiffs to replace the fuses. Plaintiffs' expert, an electrical engineer, in describing defendant's conduct, opined that "I don't think reasonable care was exercised." He diagnosed the problem as defective electrical wiring which could have been found and corrected by "[e]ven an apprentice electrician."

In their complaint the minor, through his mother, and the mother, individually, alleged that (1) defendant carelessly and negligently repaired the defective heater, leaving plaintiffs without hot water and requiring that heated water be carried from the kitchen to the bathtub with foreseeable risks of harm, and (2) defendant violated section 17-23, Metropolitan Dade County Code by failing to provide an adequate supply of hot water which proximately led to Louis' injuries. Defendant's pretrial motion for summary judgment was denied.

In the course of trial defendant challenged several of the jury instructions requested by plaintiffs and accepted by the court. After the jury had heard all of the evidence defendant made a motion for a directed verdict which was denied. The jury returned verdicts in favor of the plaintiffs fixing Louis' damages at $750,000 and his mother's at $25,000.

As points on appeal defendant contends first that it was entitled to a judgment as a matter of law because (1) it breached no duty requiring it to conform to a certain standard of conduct for the protection of others including the plaintiffs, and (2) the alleged breach of duty was not the proximate cause of the accident. On the proximate cause issue defendant argues that accidents such as the one sub judice are unusual and cannot reasonably be said to occur as a natural and probable consequence of a temporarily inoperable hot water heater. Instead, defendant argues, it was Mrs. Varnado's own acts which were the direct cause of the accident, i.e., her act of boiling water rather than merely heating it, and her act of instructing Louis to go to the specific area where she knew Louis' grandmother might be carrying boiling water.

As grounds for a new trial defendant contends that the trial court committed the following prejudicial reversible errors during trial: (1) the court permitted defendant to read portions of section 17-23, Metropolitan Dade County Code to the jury and instructed the jury that a violation of the ordinance was evidence of negligence; (2) the court instructed the jury on "concurring cause" where the facts of the case served as a basis only for an instruction on legal cause, as supplemented with an instruction on "intervening cause"; (3) the court refused to comply with the jury's request that the instructions defining legal cause be reread; and (4) the standard jury instruction by which the trial court defined the negligence issue to be determined by the jury was an inaccurate statement of Florida substantive law and was prejudicial to defendant.

Addressing first defendant's contention regarding lack of a duty, we affirm the trial court's implicit determination that the minimum housing standards set forth in section 17-23, Metropolitan Dade County Code imposed a duty upon the landlord to provide hot running water in every basin, bathtub or shower. Although the question whether a plaintiff is within the class which the ordinance was intended to protect is a question of fact, it cannot be disputed here that plaintiffs, as tenants, were within the protected class. The remaining questions are whether the injury suffered by the plaintiff was of the type which the ordinance was intended to prevent, and whether violation of the code was the proximate cause. See de Jesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973); Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA), cert. denied, 348 So.2d 946 (Fla.1977).

"[I]n personal injury cases where liability is grounded in a statute or ordinance violation, questions of whether a plaintiff comes within the class of persons intended to be protected by the statute or ordinance and whether the injury is of the kind generally intended to be prevented have been dealt with in terms of proximate cause and, as such, are subject to the determinations of the triers of fact." Enis v. Ba-Call Building Corp., 639 F.2d 359, 362 (7th Cir.1980) (citing Shehy v. Bober, 78 Ill.App.3d 1061, 1067, 34 Ill.Dec. 405, 410, 398 N.E.2d 80, 85 (1979)). The court properly left the matter to the trier of fact when it instructed the jury that violation of the code could be considered as evidence of negligence. See de Jesus; Grand Union Co. v. Rocker, 454 So.2d 14 (Fla. 3d DCA 1984).

We consider briefly the issues of proximate cause and foreseeability. In Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983), proximate causation was examined exhaustively. In that case it was alleged that the defendant negligently maintained a bicycle path, which caused a minor bicyclist to veer off the path to avoid a spill and cross an adjoining grassy tree-lined area onto a street where he was struck by an oncoming vehicle. In reversing a summary judgment for the defendant, we held that the negligence of the thirteen-year-old decedent in driving his bicycle in a careless manner could not be said to be an unforeseeable intervening cause as a matter of law, and hence could not bar a wrongful death action against the county.

The parties have presented two cases on the issue of foreseeability which, although factually similar to this case, reach opposite results. Defendant relies heavily on Martinez v. Lazaroff, 66 A.D.2d 874, 411 N.Y.S.2d 955 (1978), aff'd, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148 (1979), and the dissenting opinion in Enis, 639 F.2d at 362. Plaintiffs rely, expectedly, on the majority opinion in Enis, and the dissenting opinion in Martinez.

In Enis, the seventh circuit held that the foreseeability of injury from water being boiled on a stove for heating purposes where heat was not provided in an apartment in accordance with a local ordinance presented a jury question because reasonable men could differ.

The dissent in Enis was of the view that the accident which caused the plaintiff's injuries was the result of an intervening act or force not reasonably foreseeable. Also significant to the view of the dissent in Enis was a presumed fact that the child was injured by the water as it was being heated on the stove, not while the heated water was being transported to another area of the house for bathing.

In Martinez, the Court of Appeals of New York held that the failure of defendants to supply their tenants with hot water was not the proximate cause of the injuries incurred by the plaintiff child when he collided with a pot of boiling water being transported by his father from the kitchen stove to the bathroom. Significant to the court's analysis was the finding that neither the defendant's failure to supply hot water nor the father's intervention by providing a substitute supply of hot water was the direct cause of plaintiff's injuries.

The dissenting opinion of the court of appeals in Martinez criticized the majority for making the determination of proximate cause turn upon the character of injury suffered, inconsistent with prior holdings of that court. Citing the Restatement (Second) of Torts for controlling principles, the dissenting opinion concluded that it cannot be said, as a matter of law, that the father's act "in heating water on the stove in the kitchen and carrying it to the bathroom for purposes of cleanliness was other than a normal consequence of defendants' failure to keep the hot water boiler in repair, or that in...