Bovis v. 7-Eleven, Inc.
| Decision Date | 16 April 1987 |
| Docket Number | No. 86-169,86-169 |
| Citation | 505 So.2d 661,12 Fla. L. Weekly 1058 |
| Parties | 12 Fla. L. Weekly 1058 J. Adrian BOVIS, Appellant, v. 7-ELEVEN, INC., et al, Appellees. |
| Court | Florida District Court of Appeals |
Harry W. Lawrence of Lawrence & Landis, P.A., Orlando, and Steven J. Kyle of Bovis, Kyle & Burch, Atlanta, for appellant.
David C. Willis, Jennings L. Hurt III, and Richard S. Womble, of Anderson & Hurt, P.A., Orlando, for appellees.
This case involves construction of a lease provision in which the lessee agreed to carry public liability insurance naming the lessor as an insured.
A written lease provided in relevant parts that the lessor would maintain the foundation, exterior walls, and roof of a leased building; that the lessor would not be liable to third parties, including the lessee's employees, for damages caused by any act, omission, or negligence of the lessee; that the lessee would hold the lessor "harmless from all claims for any such damage"; and that the lessee would carry public liability insurance naming the lessor as one of the insureds.
An employee of the lessee was injured when she slipped and fell in the leased building. The employee recovered workers' compensation and, being barred by workers' compensation immunity from an action against the employer-lessee, sued the lessor alleging that the water on the floor that caused her to slip and fall resulted from the lessor's negligence in maintaining the roof. The lessor filed a third-party action against the lessee alleging that because of the lessee's breach of its agreement to obtain public liability insurance naming lessor as an insured, the lessee was liable to the lessor for any sums for which the lessor might be liable to the employee. The lessee argued 1) that its agreement was only to hold the lessor harmless from any negligence of the lessee; 2) that the agreement to provide public liability insurance was only to insure against the lessee's negligence; 3) that the lessor, not the lessee, had the duty to maintain the roof; 4) that the employee's claim against the lessor related to damages caused by lessor's negligence and not the lessee's negligence; and 5) that because the damages claimed by the employee were not within the lessee's idemnification covenant they were also not within the public liability coverage that the lessee agreed to provide. The trial court accepted this argument and ruled as a matter of law that under the lease provision the lessee owed the lessor no duty to provide public liability insurance covering the liability asserted by the lessee's employee and entered summary judgment for the lessee and against the lessor.
The question in this case must be considered in perspective. An owner of real property is not an insurer of the safety of persons on such property, nor is he subject to strict liability or liable per se for injuries resulting from dangerous conditions on owned property. The crux of a cause of action for premises liability is not the ownership of the premises, but the failure of the possessor 1 of the premises to use due care (negligence) in permitting licensees 2 and invitees 3 to come, unwarned, to an area where, foreseeably, they may be injured by a dangerous condition which to them is not readily apparent. This is why an owner of a dangerous premises is not liable to trespassers 4 and yet one in possession of a premises with authority to control access thereto, such as a lessee, an independent contractor, 5 or other non-owner possessor, may be liable to invitees and licensees for injuries from dangerous conditions created by the owner, or the possessor, or by others, such as other invitees and licensees. 6 In this case, as in the usual lease arrangement, the lessor had no right to control access by third parties to the leased premises and the lessee had actual possession and the right to control access to the leased premises and the lessee was not the agent of the lessor-owner. Therefore, the lessee and not the lessor (owner) had the continuing legal duty to inspect the premises and, in permitting or denying access to others, to act according to the safety or danger then existing. A lessor (owner) may be liable in tort to the lessee and to third persons for injuries resulting from latent dangerous conditions of which the lessor (owner) knew or should have known and which existed on the leased premises when the lessor (owner) delivered possession of the leased premises to the lessee without appropriate warnings but such liability is not based on the fact that the lessor is owner but on the basis that the owner, as possessor, can be negligent in these particulars just as any other possessor. 7 A lessor (owner) may also be liable contractually to the lessee for damages for breach of a lease provision requiring the lessor to maintain portions of a leased premises. Of course, the lessor (owner) is not liable for injuries caused solely by the lessee's operations and activities on the leased premises. On the other hand, the lessee may not only be liable to third parties for injuries resulting from the lessee's negligent operations and activities on the leased premises but, being in possession and controlling access by licensee and invitee, may also be liable in tort for injuries to third parties caused by a dangerous condition on the leased premises, whether the dangerous condition resulted from the act of the lessee, the act of the lessor (owner), some combination of the acts of both the lessee and the lessor (owner), or the act of a third person. In summary, the duty to protect others from injury resulting from a dangerous condition on a premises does not rest on legal ownership of the dangerous area but on the right to control access by third parties which right usually exists in the one in possession and control of the premises. The possessor (lessee) has the right and the duty to exclude licensees and invitees from an area that is dangerous because of dangerous operations or activities or because of a dangerous premises condition and has the duty to warn third persons of danger.
In a case such as this, whatever duty a lessor (owner) may have under a contractual obligation with the lessee to maintain the premises, when breach of that duty causes a dangerous condition the lessee, as possessor, has an independent duty, founded in tort law, to prevent injury to the lessee's licensees and invitees which duty requires the lessee to issue adequate warnings of the danger, or to prevent licensees and invitees from access to the area of danger or, if necessary, to eliminate the dangerous condition, notwithstanding the contractual duty of maintenance owed the lessee by the lessor (owner). Of course, the parties to a lease may not effectively contract that either or neither of them will not be liable to third parties injured under circumstances where the law affords such third parties a remedy in tort. However, contracting parties may agree that one will indemnify the other for loss from certain risks or they may agree to shift the risk of loss to a liability insurance company.
The relevant portion of the lease provides:
7. That the Lessor shall not be liable to Lessee or to Lessee's employees, patrons or visitors for any damage to person or property caused by any action, omission or negligence of Lessee or any other tenant of said demised premises and Lessee agrees to hold Lessor harmless from all claims for any such damage, except claims arising out of improper maintenance or failure to make needed repairs to the foundation, exterior walls and/or roof of which Lessee has promptly upon discovery notified Lessor. Lessee agrees to carry public liability insurance naming Lessor as one of the insureds having a minimum coverage of $100,000.00 for injuries to one person; $300,000.00 for...
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