City of Miami v. Perez

• Decision Date: 02 June 1987
• Docket Number: 85-2189,Nos. 85-2184,85-2240 and 85-2139,85-2185,s. 85-2184
• Citation: 12 Fla. L. Weekly 1384,509 So.2d 343
• Parties: 12 Fla. L. Weekly 1384 CITY OF MIAMI, Lester C. Pancoast, Bouterse Borelli Albaisa Architects Planners, Inc., De Zarraga & Donnell, Inc., Volkert Associates, Inc., United States Fidelity & Guaranty Company, Houston General Insurance Company, and Allan Poms, Appellants, v. Mario PEREZ, II, and Hilda Perez Lozada, Appellees. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. CITY OF MIAMI, Mario Perez, II, Hilda Perez Lozada, Houston General Insurance Company, et al., Appellees.
• Court: Florida District Court of Appeals

Page 343

509 So.2d 343

12 Fla. L. Weekly 1384

CITY OF MIAMI, Lester C. Pancoast, Bouterse Borelli Albaisa Architects Planners, Inc., De Zarraga & Donnell, Inc., Volkert Associates, Inc., United States Fidelity & Guaranty Company, Houston General Insurance Company, and Allan Poms, Appellants, v. Mario PEREZ, II, and Hilda Perez Lozada, Appellees.

UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. CITY OF MIAMI, Mario Perez, II, Hilda Perez Lozada, Houston General Insurance Company, et al., Appellees.

Nos. 85-2184, 85-2185, 85-2189, 85-2240 and 85-2139.

District Court of Appeal of Florida,

Third District.

June 2, 1987.

Rehearing Denied Aug. 12, 1987.

Dunn & Dresnick and Richard M. Dunn and Mark A. Dresnick, Carey, Dwyer, Cole, Eckhart, Mason & Spring and Pamela Beckham, Miami, Richard A. Sherman, Fort Lauderdale, Marlow, Shofi, Connell, DeMahy, Valerius, Abrams, Lowe & Adler and Joseph H. Lowe, Peters, Pickle, Flynn & Niemoeller and Donna C. Hurtak, Miami, for appellants City of Miami, et al.

Stanley M. Rosenblatt, Cooper, Wolfe & Bolotin and Marc Cooper; Robey & Pelstring and R.J. Pelstring, Miami, for appellees Perez and Lozada.

Richard A. Sherman, Fort Lauderdale, for appellant U.S. Fidelity & Guar. Co.

Dunn & Dresnick and Richard M. Dunn and Mark A. Dresnick, Stanley M. Rosenblatt, Cooper, Wolfe & Bolotin and Marc Cooper, Robey & Pelstring and R.J. Pelstring, Marlow, Shofi, Connell, DeMahy, Valerius, Abrams, Lowe & Adler and Joseph H. Lowe, Miami, for appellees City of Miami, et al.

Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.

HENDRY, Judge.

This is a consolidated appeal by the City of Miami (City) and its insurers, United States Fidelity & Guaranty Company (USF & G) and Houston General Insurance Company (Houston) concerning a construction site accident which occurred during the building of the City of Miami Police Station. ¹ , ² Plaintiff Mario Perez was a carpenter employed by the general contractor, ADH, Inc. (ADH). ³ For reasons more fully developed below, we reverse.

Briefly stated, the facts are as follows. Perez's accident occurred on September 16, 1975, while he was dismantling scaffolding in the course of his employment. The metal scaffoldings to be disassembled were stacked one on top of the other to form a scaffold tower with a total height of twenty-two feet. As part of his job, Perez climbed onto the twenty-two foot high scaffold, directing the other worker assigned to him to wait on the ground to protect other workers from falling scaffold sections to be thrown down by Perez. Perez began disassembling the scaffolding by standing on boards provided at the site, lifting scaffolding jacks out of their fitted positions, and throwing them to the concrete surface below. At the time of the accident, the scaffolding had been disassembled so that Perez was standing at a height of twelve feet above the ground.

While standing on a single two by ten inch plank, ⁴ Perez dislodged and picked up a six foot steel jack, weighing approximately fifty pounds. He testified that he planned to throw this piece to the ground. Perez further testified that as he picked up the jack, he lost his balance and in desperation threw it to the ground. The jack, however, hit the bottom brace beneath Perez and kicked up, causing Perez to be knocked off his plank onto the ground. Perez was paralyzed as a result of his fall.

On November 25, 1975, Perez, and his former wife, Hilda Lozada, sued the City as owner of the property where the accident occurred, the joint venture which provided architectural and engineering services for the premises under construction (Joint Venture), ⁵ and Allan Poms (Poms), an architect who at the time of the accident was under contract with the City to provide on-site inspection services. The plaintiffs also sued USF & G and Houston, alleging that they provided liability coverage for the City. ⁶

In December, 1976, summary judgment was granted for all defendants and plaintiffs appealed. This court reversed and remanded in Perez v. City of Miami, 358 So.2d 1132 (Fla. 3d DCA 1978). The case was then tried in January, 1984, resulting in a hung jury as to defendants' liability. A motion for mistrial was granted. Following the 1984 trial, plaintiffs amended their complaint.

Plaintiffs' second amended complaint alleged that the City owed a duty to Perez because "[i]t was the owner of the project and actively participated in the construction. It therefore owed Mario Perez, II, a duty to provide him with a safe place to work." ⁷ In an amendment to the second amended complaint, the plaintiffs also alleged vicarious liability against the City and the Joint Venture alleging that defendant Allan Poms was an agent, servant and employee of the City and of Joint Venture.

At the six day jury trial in June, 1985, the trial court denied defense motions for directed verdict at the end of plaintiffs' case and at the close of the evidence. The jury answered special verdict interrogatories finding that the City, the Joint Venture, and Allan Poms were 50%, 20% and 25% negligent, respectively. The jury also found that the City and Joint Venture were legally responsible for the acts of defendant Poms.

The jury found Perez only 5% comparatively negligent. He was awarded $3,250,000. Hilda Lozada was awarded $125,000. ⁸

Plaintiffs attempt to hold the City, as owner of the property, responsible for Perez's accident by alleging that the City actively participated in the methods or means used by ADH, during the course of construction, but failed to exercise its right of control in a reasonably careful manner. Secondly, plaintiffs attempt to hold the City vicariously liable through Poms for Perez's accident, contending that Poms was "an agent, servant or employee of the City of Miami acting in the course and scope of his duties."

Therefore, in order to decide whether to impose liability on the City for Perez's accident, it must be determined how much control, if any, the City retained over the construction site. Secondly, it must be determined whether, upon employing Allan Poms, the City had the right to control the details of his movements during his performance of the duties agreed to.

Under Florida law, an owner who hires an independent contractor is generally not liable for injuries sustained by that contractor's employees in their work. Crawford v. Florida Steel Corp., 478 So.2d 855 (Fla. 1st DCA 1985); Van Ness v. Independent Constr. Co., 392 So.2d 1017 (Fla. 5th DCA), review denied, 402 So.2d 614 (Fla.1981). However, there are two principal exceptions to this rule.

First, an owner may be held liable if he interferes or meddles with the job to the extent of assuming the detailed direction of it, and thus becomes the master of the independent contractor's employee. Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA 1985); City of Mount Dora v. Voorhees, 115 So.2d 586 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960). Second, if the owner has been a passive nonparticipant, in order to impose liability 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 contractor's employee, must be established. Conklin, 287 So.2d at 60.

As noted in Cadillac, 468 So.2d at 417, an owner has a right to inspect the work of an independent contractor to determine that the work conforms to the contract and to reject unsatisfactory work and demand that it be made satisfactory. Moreover, this reservation is not a usurpation of control and does not change an owner from a passive non-participant to an active participant in the construction. To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way. Van Ness, 392 So.2d at 1019; Restatement of Torts (Second) § 414, comment (c) (1965).

In the instant case, the plaintiffs' allegation that the City retained control of the construction site is based upon their contention that the City retained the right to "approve methods of construction" before they could become effective. They further contend that ADH had to follow the engineer's suggestions "as to placing the project in the safest possible condition." However, these contentions in and of themselves do not necessarily evidence active participation or control.

An owner has the right to inspect the work of an independent contractor to determine that the work conforms to the contract and to reject unsatisfactory work and demand that it be made satisfactory. As previously stated, reservation of this right, through an owner, is not a usurpation of control and does not change an owner from a passive non-participant to an active participant. Van Ness, 392 So.2d at 1019.

Moreover, this rule is not altered by the fact that the owner-employer may stop work which is not properly done. 41 Am.Jur.2d Independent Contractors § 10 (1968). If, however, the contract provides that the work shall be done "under the direction" ⁹ and "subject to the approval" of the owner, a closer question is presented, but the general view is that the question is to be determined from all the provisions of the contract together with the surrounding circumstances, and that such a provision does not necessarily make the contractor a mere servant. Id.

As noted in 41 Am.Jur.2d Ind.Contr. § 10, an owner who engages an independent contractor to perform a job for him may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract--including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work--without changing the...