Cesar v. North Miami Bakeries Inc.

Decision Date29 June 2011
Docket NumberNo. 3D09–3047.,3D09–3047.
Citation63 So.3d 1
PartiesCesar and Ana Maria FABREGAS, Appellants,v.NORTH MIAMI BAKERIES, INC., etc., Appellee.
CourtFlorida District Court of Appeals


Roy D. Wasson, Miami, and Roberta G. Mandel; Alan Goldfarb and Liah C. Catanese, for appellants.Richard A. Sherman, Sr., and James W. Sherman, Fort Lauderdale; Esther B. Nickas and Craig Lee Montz, for appellee.Before SHEPHERD, ROTHENBERG, and SALTER, JJ.SALTER, J.

Cesar and Ana Maria Fabregas appeal a final summary judgment in their action against North Miami Bakeries, Inc. Our review of the record demonstrates that genuine issues of material fact remain precluding summary judgment; therefore, we reverse.

Cesar Fabregas went with Armando Garcia Sr. and Jr., the owners of Armando Filter Cleaning Services, to clean Sunset Bakery's exhaust vents over the cooking stove. To do the work, the men placed boards over a deep fat fryer vat to access the hood and vents. They testified that the area could not be accessed with a ladder. During the cleaning, the board broke or shifted. Fabregas, who was working on the vent, fell into the fryer vat and was severely burned.

Garcia Sr. testified that the restaurant owner is responsible for turning off the equipment under the hood in sufficient time for it to cool down. He testified that the stove was not hot as the work began. Garcia Jr. testified that there was no smoke, heat, or smell emanating from the fryer indicating that the oil in the fryer was hot. The bakery owner testified that she had turned off the fryer about an hour before Fabregas and the Garcias arrived to perform the work, because she knew they would be working on the vents.

The testimony diverged, however, regarding any warning by the bakery owner. She testified that she did in fact warn the cleaners to be careful because the oil was still hot. Fabregas and the Garcias denied that any such warning was given.

Fabregas sued the bakery as a business invitee. As an invitee, Fabregas argued that the bakery owed him a duty to maintain the premises in a reasonably safe condition and to warn of dangerous conditions that are known or should be known to the bakery.

The bakery moved for summary judgment, asserting that it owed no duty to Fabregas, the employee of an independent contractor. Fabregas argued that by not turning the oil off earlier, the bakery created a hidden danger. After a hearing, the trial court granted the bakery's motion. The court found that there were no genuine issues regarding any material fact. Thereafter, the court denied Fabregas's motion for rehearing, and this appeal followed.


When a record reveals the existence of disputed, material issues of fact, summary judgment is error. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Real Estate Inv. Group LLC v. Attorneys' Title Ins. Fund, Inc., 47 So.3d 868 (Fla. 3d DCA 2010). In this case, the facts surrounding the accident were disputed. There was sufficient evidence to allow a jury to resolve the issue of whether the placement of boards to perform the cleaning operation was reasonable under the circumstances; whether the failure to turn the fryer off earlier was reasonable under the circumstances; and whether the owner did adequately alert the men to the existence of a dangerous condition, a fryer vat with dangerously hot oil (despite the absence of perceptible indications to the contrary). The issue in this case is not a question of law that can be determined by entry of summary judgment. Volusia County, 760 So.2d at 131.

The bakery argues that the trial court was correct because of two lines of cases regarding the parties' respective duties. The first of these is the “general rule” that “one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work.” Armenteros v. Baptist Hosp. of Miami, 714 So.2d 518, 520–21 (Fla. 3d DCA 1998) (citations omitted). Exceptions to that general rule exist, however, including an exception when an owner “who has actual or constructive knowledge of latent or potential dangers on the premises, has breached a duty to warn employees [of the independent contractor] of such danger.” Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 596 (Fla. 4th DCA 2008) (citations omitted). In this case, the bakery owner's action in turning off the fryer, but doing so with an inadequate lead time to permit the oil within the vat to cool to a safe temperature, created a latent, non-obvious danger. The testimony concerning a warning was material and conflicting.

The second line of cases relied upon by the bakery owner relates to an injury sustained by an independent contractor's employee which occurs in performing the independent contractor's specialized work. In Morales v. Weil, 44 So.3d 173 (Fla. 4th DCA 2010), the contractor was hired to demolish a barn with a roof damaged by two hurricanes. The damage was obvious and included a hole through the roof that was visible to the employees. However, in the course of the work one of the employees fell through a weakened roof panel and was injured. The Fourth District reviewed the applicable law and affirmed a summary judgment for the barn owners. The Court concluded that “the [owners] were in no better position than the [injured contractor employee] to assess the level of danger that the job posed. Consequently, the [owners] owed him no duty to maintain the roof in a reasonably safe condition.” Id. at 179.

In this case, however, the bakery owner arguably was in a better position than Fabregas to appreciate the special hazard in the work area. The focus of the independent contractor's work was the hood, vents, and filters—not the stove, fryer vat, and other equipment in the bakery. We conclude, therefore, that neither of the legal principles relied upon by the bakery warrants summary judgment.

The summary judgment is therefore reversed and the cause remanded for further proceedings.

SHEPHERD, J., concurs.ROTHENBERG, J. (dissenting).

Cesar Fabregas (Fabregas) was hired by Armando Filter Cleaning Services, a filter cleaning service that contracted with Sunset Bakery to clean an exhaust hood located over a stove and deep fryer filled with oil in Sunset Bakery's kitchen. While performing this service, Fabregas fell into the deep fryer and was burned by hot oil. Because: (1) Fabregas was an employee of an independent contractor; (2) Sunset Bakery did not participate in, directly influence, or exercise control over the services Fabregas performed; (3) hot oil in a deep fryer under the exhaust hood in the kitchen which was still open for business was an open and obvious danger; and (4) Fabregas failed to use ordinary caution and created the dangerous condition that was the proximate cause of his injury, the trial court correctly granted summary judgment in favor of Sunset Bakery. I therefore respectfully dissent from the majority opinion reversing the trial court's order.

Because some of the important facts have been omitted from the majority opinion, a more complete recitation of the facts follows. For the past five years, the owners of Sunset Bakery, Diane Fernandez and her husband (“Mr. and Mrs. Fernandez”), contracted with and relied on Frank Filter Service to clean the oil from the vents and hood located over the stove and deep fryer of the bakery three to four times a year.1 On this particular occasion, because the owner of Frank Filter Service was out of the country, Sunset Bakery hired Armando Filter Cleaning Services, Inc. (“Armando, Inc.”) which had never done any work on the premises. The sole employees of Armando, Inc. were Armando Garcia, Sr. (“Armando Sr.”) and his son, Armando Garcia, Jr. (“Armando Jr.”). On the date of the incident, however, Armando Sr. hired Fabregas to assist them with the Sunset Bakery cleaning job.

It is undisputed that when Armando, Inc. arrived between 2:30 and 3:00 p.m. to clean the exhaust hood and vents located over the stove and deep fryer, the bakery was open for business, the kitchen was in use, the stove was still being used, the deep fryer had been turned off for at least forty-five minutes, and the oil in the deep fryer was still hot. While the evidence is in dispute as to whether Mrs. Fernandez advised Armando Sr. that the oil in the deep fryer was still hot, it is undisputed that she did not instruct the company or its employees on how to clean the exhaust hood and vents, did not monitor their work, and was not in the kitchen while they performed their services.

Unbeknownst to Mr. and Mrs. Fernandez, Fabregas, Armando, Inc.'s employee, removed items from the stove, placed plywood on the stove, broiler, and deep fryer, covered the boards with nylon, climbed up onto the boards, and began scraping the exhaust hood. While Fabregas was scraping the filter, the plywood slipped and he fell into the deep fryer and burned his feet. While it was Armando, Inc.'s general practice to clean exhaust hoods and filters in this fashion, none of the cleaning companies that had serviced the bakery for over sixteen years had ever climbed up on top of the stove, deep fryer, or kitchen equipment to clean the exhaust hood and filters. All of the other companies would cover the equipment with plastic and boards and stand on ladders, not the appliances, to perform their cleaning service.

The gravamen of Fabregas' complaint against Sunset Bakery is that the bakery had a duty to either turn the deep fryer off earlier to allow the oil to fully cool, or to warn Armando, Inc. and its employees that the oil was hot. Fabregas argues that the trial court erred in granting Sunset Bakery's motion for summary judgment because there exists a material issue in dispute—whether Mrs. Fernandez warned Armando, Inc. that the oil in the deep fryer was still hot. The majority apparently concludes that Sunset Bakery had a duty to warn Armando, Inc. that the...

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