Carter v. Livesay Window Co.

• Decision Date: 01 June 1954
• Citation: 73 So.2d 411
• Parties: CARTER v. LIVESAY WINDOW CO., Inc., et al.
• Court: Florida Supreme Court

Page 411

73 So.2d 411

CARTER v. LIVESAY WINDOW CO., Inc., et al.

Supreme Court of Florida, En Banc.

June 1, 1954.

Rehearing Denied July 30, 1954.

Murray Sams, Jr., and Phillip Goldman, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for appellee.

TERRELL, Justice.

Mrs. Cleigh Carter, appellant, brought this action against appellees to recover damages for the wrongful death of her four year old minor son, Kari S. Carter. Summary judgment was entered in favor of Livesay Window Company, Inc. and Concrete Placing Company. The cause was left pending against Mr. and Mrs. Roy C. johnson. Mrs. Carter has appealed from that part of the order of the Circuit Court granting the motion for summary judgment as to defendant Livesay Window Company, Inc.

The complaint alleges that Mr. and Mrs. Roy C. Johnson were constructing a home at 3191 S.W. 24th Street, Miami, Florida, that appellee, Livesay Window Company, contracted with the Johnsons to furnish pre-cast concrete window frames and set them in the home under construction, that negligence in furnishing and installing said window frames was charges in substance as follows:

'(a) The said defendant was negligent in failing to place or set the said pre-cast concrete window frames properly or securely and/or in a reasonably careful manner;

'(c) Failed to brace or employ other means reasonably necessary to have the said pre-cast concrete window frames set in place;

'(d) they being set in place by the said defendant during the early morning hours of December 1, 1951, at a time when no one connected with the said building or anyone else was present, and knowing, or that they should have known, that no workmen would be present on said date or over the weekend or until the early morning of December 3, 1951; the said defendant further knowing, or should have known, that no work was to be done on the said residence building over Saturdays or Sundays; or

'(e) Failing to apply or use cement or other securing substance to hold the precast window frames in place, or

'(h) that said defendant knew or should have known that the premises in question were in a neighborhood where children of immature years played and frequented, and would be attracted to the premises in question, or in the exercise of reasonable care should have known this.'

A pre-trial conference was held, the pleadings were settled, depositions of the owners were proffered and interrogatories were served upon appellee and others. Appellee then moved for summary judgment, to which motion was attached the affidavit of the foreman employed to supervise construction, also the affidavit of Leigh Dixon the employee of appellee who delivered the window frames to the building. Plaintiff filed the affidavits of G. A. Chapman and Carl Esty. After full hearing the trial court entered summary judgment for appellee, a rehearing was denied and this appeal was prosecuted.

Several questions are urged for determination but as Abraham Lincoln once put it, if we brush aside the flotsam and jetsam and get right down to hardpan, the only point we have to consider is whether or not the trial court committed error in granting summary judgment for defendant.

Relying on Day v. Norman, Fla., 42 So.2d 273; Boyer v. Dye, Fla., 51 So.2d 727; Lomas v. West Palm Beach Water Co., Fla., 57 So.2d 881; Enes v. Baker, Fla., 58 So.2d 551; Richmond v. Florida Power & Light Co., Fla., 58 So.2d 687; Earley v. Morrison Cafeteria Co. of Orlando, Fla., 61 So.2d 477; and Embrey v. Southern Gas & Electric Corp., Fla., 63 So.2d 258, appellee contends that the decree should be affirmed. For reversal of the judgment appellant relies on Johnson v. Wood, 155 Fla. 753, 21 So.2d 353; Williams v. Board of Public Instruction of Flagler County, Fla. 61 So.2d 493 and Williams v. City of Lake City, Fla., 62 So.2d 732.

We have examined these cases but we do not think they rule the case at bar. There are elements pointing to negligence in this case that were not present in any of them.

Appellee contends that the attractive nuisance doctrine can be invoked only against the owner or one in control of the premises. The courts of this country are sharply divided on the point. United Zinc and Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615. Section 339 of A.L.I. Restatement, Torts (1934), has to do with the 'attractive nuisance' or 'turntable doctrine'. It imposes liability upon the possessor of land for constructing or maintaining conditions dangerous to children and details the factors that give rise to the doctrine. A majority of the jurisdictions have followed this view, while a minority of the courts permitting recovery in favor of trespassing children in rare instances have completely rejected the doctrine as 'sentimental humanitarianism.' The rule in this state extends the doctrine to a contractor. Johnson v. Wood, supra. Section 387 of the A.L.I. Restatement, Torts (1934) is to same effect as Johnson v. Wood, supra. Appellee urges that it is not within this rule as it was a subcontractor, that it was not in control of the premises, that it was not on the premises longer than forth-five minutes and that the accident occurred after it had completed its job and relinquished the premises to the contractor or owner.

Whether the deceased child was a trespasser upon the premises in question is not material. Neither is it material whether the window frames installed by the appellee or the house in which they were installed attracted the child. The test to be applied in a case of this type is whether a reasonably prudent person should have anticipated the presence of children or other persons at the place where the appellee created a condition that a jury could find was an 'inherently dangerous condition' or a 'dangerous instrumentality' like unto an explosive substance, an inflammable material, a live wire or a spring gun. See Florida Power and Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, wherein this Court quoted with approval 20 C.J. 350; 29 C.J.S., Electricity, § 43; Wittleder v. Citizens' Electric Illuminating Co. of Brooklyn, 47 App.Div. 410, 62 N.Y.S. 297; Wilson v. American Bridge Co., 74 App.Div. 596, 77 N.Y.S. 820.

The rule no doubt stems from the early English case of Heaven v. Pender, 11 Q.B.D. 503, wherein Brett, M. R., speaking for the Court stated:

'Wherever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did not think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.'

This concept of law or duty has been cited with approval in cases bearing resemblance to the case at bar. O'Brien v. American Bridge Co. of New Jersey, 110 Minn. 364, 125 N.W. 1012, 32 L.R.A.,N.S., 980; Murphy v. Barlow Realty Co., 206 Minn. 527, 289 N.W. 563.

By the traditional rule contractors were not liable for injuries to third persons occurring after the work was turned over to the owner. Ford v. Sturgis, 56 App.D.C. 361, 14 F.2d 253, 52 A.L.R. 619. This rule has been modified by extending the doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1616F, 696, to building contractors who create inherently dangerous conditions, although the doctrine was originally applied to manufacturers and...