Cecile Resort, Ltd. v. Hokanson, 98-2213.

• Decision Date: 05 March 1999
• Docket Number: No. 98-2213.,98-2213.
• Citation: 729 So.2d 446
• Parties: CECILE RESORT, LTD., etc., Appellant, v. David P. HOKANSON, Appellee.
• Court: Florida District Court of Appeals

729 So.2d 446

CECILE RESORT, LTD., etc., Appellant, v. David P. HOKANSON, Appellee.

No. 98-2213.

District Court of Appeal of Florida, Fifth District.

March 5, 1999.

Rehearing Denied April 5, 1999.

Warren Kwavnick and Dennis R. O'Connor of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for Appellant.

Ava F. Tunstall of McIntyre & Tunstall, P.A., Maitland, and Samuel P. King of Martinez, Dalton, Dellecker, Wilson & King, Orlando, for Appellee.

COBB, J.

Cecile Resort, Ltd., d/b/a The Residence Inn (Cecile Resort), appeals the final judgment entered by the trial court in favor of David Hokanson for damages sustained when Mr. Hokanson fell from a flag pole owned by Cecile Resort. We reverse because Cecile Resort is not liable for Mr. Hokanson's injuries as a matter of law.

Cecile Resort hired Mr. Hokanson, who owned and operated DJ's Home Improvements, to paint their flag pole. Mr. Hokanson climbed up the pole using a steel cable attached to the pole. The cable broke, and Mr. Hokanson fell to the ground sustaining serious injuries. Mr. Hokanson sued Cecile Resort alleging they were liable for his damages on the basis of premises liability and negligence, and a jury trial was held.

After Mr. Hokanson presented his case, Cecile Resort moved for a directed verdict arguing that it could not be held liable for Mr. Hokanson's injuries because he was an independent contractor and it did not participate in the work, or negligently approve or create a dangerous condition. The trial court summarily denied the motion for directed verdict without comment. Cecile Resort did not present any evidence, and the jury returned a verdict finding Cecile Resort 60% negligent and Mr. Hokanson 40% negligent.

A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. See American Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981),

rev. denied, 415 So.2d 1359 (Fla.1982). "In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiffs favor." Id. This is the test used by the trial court as well as the standard of review on appeal. See Ritz v. Florida Patient's Compensation Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983),

rev. denied, 450 So.2d 488 (Fla.1984).

Generally, "one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work." Van Ness v. Independent Construction Co., 392 So.2d 1017, 1019 (Fla. 5th DCA), rev. denied, 402 So.2d 614 (Fla.1981) (citing Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977)). Our supreme court identified exceptions to this rule as follows:

[T]he owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the statute [workers' compensation law], one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established.

Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973). Accordingly, there are only two theories under which Cecile Resort could be liable: (1) it controlled the project; or (2) was guilty of specific and identifiable acts of negligence in creating or approving a dangerous condition causing Mr. Hokanson's injuries.

First, to impose liability on an owner for a contractor's injuries, the extent of control must be such that the owner controls the methods of work.

`It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.'

Armenteros v. Baptist Hospital of Miami, Inc., 714 So.2d 518, 522 (Fla. 3d DCA 1998) (quoting RESTATEMENT (SECOND) OF TORTS § 414). In Armenteros, the Third District observed: "Reviewing the cases across the country considering this issue, the deciding question is who exercised control of the work, and thus was in the position to prevent the harm which occurred." 714 So.2d at 522.

As applied to the instant case, Mr. Hokanson did not present any...