Boatwright v. Sunlight Foods, Inc., 91-316

• Citation: 592 So.2d 261
• Decision Date: 03 December 1991
• Docket Number: No. 91-316,91-316
• Parties: 16 Fla. L. Weekly D2991 Joean BOATWRIGHT, as Personal Representative of the Estate of Marion F. Boatwright, Deceased, Appellant, v. SUNLIGHT FOODS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 261

592 So.2d 261

16 Fla. L. Weekly D2991

Joean BOATWRIGHT, as Personal Representative of the Estate of Marion F. Boatwright, Deceased, Appellant, v. SUNLIGHT FOODS, INC., Appellee.

No. 91-316.

District Court of Appeal of Florida Third District.

Dec. 3, 1991.

Rehearing Denied Feb. 18, 1992.

Proenza, White, Huck & Roberts, Kelly, Black, Black, Byrne, Beasley, Bales & Ross and Lauri Waldman Ross, Miami, for appellant.

Richard A. Sherman and Rosemary B. Wilder, Fort Lauderdale, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and NESBITT, JJ.

NESBITT, Judge.

The personal representative of the deceased in a wrongful death action seeks reversal of the trial court's order granting a directed verdict in a property owner's favor. We reverse and remand upon the following analysis.

Joean Boatwright alleged that Sunlight Foods, Inc., (Sunlight) owned, operated, and controlled the warehouse where her husband was fatally injured while working on a negligently designed vinegar tank. Sunlight argued the decedent's independent contractor status, assumption of risk, the borrowed servant doctrine, and comparative negligence.

Sunlight had hired independent contractor, Charles Ray, to install a tank which had been purchased at salvage by Sunlight's maintenance head, Enoch Lewis. According to Sunlight's contract with Ray, Sunlight was required to furnish a forklift and all materials. Lewis did all Sunlight's design work. In accordance with Lewis' design, the tank was installed 12 feet above the warehouse floor. A catwalk went to the top of the tank, and a platform was set on top, just below the level of a valve and tank pipe connection. At this juncture was a flange with part of the original valve ground off. Boatwright welded a new valve to control the vinegar flow. It was while connecting this valve that Boatwright fell to his death.

When the cause proceeded to trial, a mistrial was declared during opening argument, when the defense told the jury that the decedent's employer, Ray, had been fined under the Occupation Safety and Health Act, OSHA, for the accident. Prior to new trial, Ms. Boatwright unsuccessfully moved to exclude evidence of the OSHA fine and the OSHA determination of who employed her husband.

According to the testimony of a Sunlight employee and a Ray employee, Lewis had rejected their request for a guardrail around the platform. According to Lewis, he had instructed Ray's men to install railings; however, they had not done so at the time of Boatwright's death. Prior to the morning of the accident, Lewis had ordered one of his employees to climb up the tank platform and take the flange off. That employee had refused, saying it was too dangerous. The day of the accident, Boatwright went up the platform carrying a two-foot wrench. Standing nearby were Boatwright's son and also Charles Ray and his son. Several minutes later, when the flange broke, Boatwright fell.

At the conclusion of Joean Boatwright's case, Sunlight moved for a directed verdict, arguing that the decedent was an independent contractor and the platform was a "known risk." The trial court denied the motion. The company renewed the motion at the conclusion of all the evidence and the trial court granted a directed verdict in Sunlight's favor. This was error.

An owner who hires an independent contractor is generally not liable for injuries sustained by that contractor's employees for their work. City of Miami v. Perez 09 So.2d 343, 345 (Fla. 3d DCA), review denied, 519 So.2d 987, 988 (Fla.1987). However, there are two principal exceptions to this rule. First, an owner may be held liable if he actively participates in the construction to the extent that he directly influences the manner in which the work is performed. Conklin v. Cohen, 287 So.2d 56 (Fla.1973); McCabe v. Florida Power & Light Co., 531 So.2d 360 (Fla. 3d DCA 1988); Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417, 421 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla.1985). Second, an owner may be held liable where he or she creates or approves a dangerous condition, resulting in injury. Conklin, 287 So.2d at 59; Horton v. Gulf Power Co., 401 So.2d 1384 (Fla. 1st DCA), review denied, 411 So.2d 382 (Fla.1981).

At trial in the instant case, the plaintiff presented competent evidence supporting each exception. There was testimony that the tank was designed and modified by Sunlight employee, Lewis. There was Lewis' own statement that he instructed the construction workers "how I want it done and what I...