Campbell v. Bellman, 73--525
| Decision Date | 26 March 1974 |
| Docket Number | No. 73--525,73--525 |
| Parties | Dean S. CAMPBELL and Nona O. Campbell, his wife, Appellants, v. Clemence Levy BELLMAN, Appellee. |
| Court | Florida District Court of Appeals |
Paige & Catlin, Miami, for appellants.
Harold Bellman, Miami Beach, for appellee.
Before PEARSON, CARROLL and HAVERFIELD, JJ.
The appellants contracted to purchase three lots from the appellee, Clemence Levy Bellman. Since there was uncertainty as to location of the lots, the contract of sale provided that the '(s)eller is to provide survey showing four (4) corner locations for each lot referenced above'. It is alleged that the corner locations were wrong and appellants built a structure on a lot that they did not own. They then sued the seller for breach of contract and a summary final judgment was entered in favor of the seller. We reverse the summary judgment and remand for further proceedings.
Appellants' original complaint was brought against not only the appellee Bellman, who was the seller of the lots, but against other defendants including the surveyor who had staked the lots. Suit is still pending against other defendants, but upon the motion of appellee Bellman, summary judgment dismissing her from the complaint was granted upon the ground that she was insulated from liability because the surveyor was an independent contractor.
The appellees and presumably the trial court followed the theory that appellants' cause of action was in tort for the negligence of the surveyor and therefore relied upon the long recognized general rule that an employer is not liable for the negligent acts of an independent contractor. See Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927). It was held in Ross v. Heitner, Fla.App.1963, 156 So.2d 869, that the general rule is subject to exceptions, including the exception that inherently dangerous work of an employed independent contractor may leave the employer liable. In Easton v. Weir, Fla.App.1960, 125 So.2d 115, the exceptions to the general rule were held to apply to a landlord's assumed repair of a roof upon the ground that such labor was inherently dangerous.
The question of whether the negligent performance of an independent contractor can insulate a contracting party from liability under the contract is not new in the state of Florida. In Mills v. Krauss, Fla.App.1959 114 So.2d 817, the District Court of Appeal, Second District, discussed a contractor's liability for the negligent performance of an independent subcontractor. The court held:
'In some circumstances duties may devolve upon an employer which he cannot delegate to another, and in such cases the employer is liable for breach or nonperformance of such duties even though he employs an independent contractor to do the work.'
The court further stated:
'Dealing with nonperformance of absolute duties of an employer and with reference to contractual obligations, the following is said in 27 Am.Jur., Independent Contractors, ...
To continue reading
Request your trial
-
Monroe Systems for Business, Inc. v. Intertrans Corp.
...or duties which, under the express terms of the agreement or by implication of law, are assumed by the undertaker." Campbell v. Bellman, 293 So.2d 795, 796 (Fla. 3d DCA 1974); Mills, 114 So.2d at In the present case, Intertrans expressly undertook to handle Monroe's shipping and storage nee......
-
City of Coral Gables v. Prats
...Furniture Co. v. Continental Equities, Inc., 411 So.2d 221 (Fla. 3d DCA), review denied, 419 So.2d 1196 (Fla.1982); Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960). The contract between the City......
-
Carr Smith & Associates, Inc. v. Fence Masters, Inc.
...Liability for Mistake in, or Misrepresentation as to Accuracy of Survey of Real Property, 35 A.L.R.3d 504 (1971); cf. Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974) (seller may be held liable to buyer for providing buyer with negligently prepared survey where seller employs surveyor ......
-
Fisherman's Paradise, Inc. v. Greenfield, 81-1980
...obligations. Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) [7 FLW 1179]; Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960); see also Easton v. Weir, 125 So.2d 11......