Easton v. Weir, 1960

• Decision Date: 14 December 1960
• Docket Number: No. 1960,1960
• Citation: 125 So.2d 115
• Parties: Alex K. EASTON, d/b/a George Easton Furniture Co., Appellant, v. Edward Earl WEIR, II, a minor, and Muriel A. Weir, as guardian of the property of Edward Earl Weir, II, a minor, Appellees.
• Court: Florida District Court of Appeals

Page 115

125 So.2d 115

Alex K. EASTON, d/b/a George Easton Furniture Co., Appellant, v. Edward Earl WEIR, II, a minor, and Muriel A. Weir, as guardian of the property of Edward Earl Weir, II, a minor, Appellees.

No. 1960.

District Court of Appeal of Florida, Second District.

Dec. 14, 1960.

Erle B. Askew, Askew, Earle & Hawes, St. Petersburg, for appellant.

Sam H. Mann, Jr., Mann, Harrison, Mann & Rowe, St. Petersburg, for appellees.

ALLEN, Chief Judge.

The appellant, as plaintiff in the lower court, filed a third amended complaint seeking damages from the appellee-defendants for damage to merchandise plaintiff had stored in a building owned by the defendant, Muriel A. Weir, as guardian for the defendant, Edward Earl Weir, II, a minor. The complaint alleged that the damage occurred as a result of rain which was permitted to come into the building while a contractor hired by the defendants was repairing the roof of the building. The lower court granted defendants' motion to dismiss and entered a final order of dismissal in favor of the defendants from which this appeal has been taken.

Muriel A. Weir is the guardian for Edward Earl Weit and in that capacity holds title to the building and property in question. On June 17, 1958, plaintiff was a tenant at will using the building for the storage of furniture and furnishings which were being held by the plaintiff for resale in his furniture business.

On June 14, 1958, the defendant, Muriel A. Weir, as guardian undertook to have the roof on the building repaired. Weir employed Federal Roofing & Siding, Inc., to perform the repairs. The contractor began work on June 17, 1958, and in performing the work caused 'dirt and debris from the roof' to fall upon plaintiff's furniture and furnishings. In addition, while the repairs were being made, rain came in the building through the roof damaging plaintiff's furniture and furnishings. The plaintiff alleged negligence on the part of defendants in failing to exercise reasonable care in maintaining a proper control over the contractor, and sought damages in the amount of $60,000 for the damage.

It is generally held that at common law, in the absence of a special agreement to repair the demised premises, the landlord is not under a duty to make repairs to them. Masser v. London Operating Co., 1932, 106 Fla. 474, 145 So. 72; Felshin v. Sir, 1942, 149 Fla. 218, 5 So.2d 600. It is equally well established that if the lessor undertakes to repair or improve the demised premises, whether he is contractually bound to do so or not, he is required to exercise reasonable care in making such improvements or repairs, and is liable for injuries caused by his negligence or that of his servants or employees in making the repairs or in leaving the premises in an unsafe condition. Kimmons v. Crawford, 1926, 92 Fla. 652, 109 So. 585. Propper v. Kesner, 1958, 104 So.2d 1.

On the issue of whether the landlord, by employing an independent contractor to make the repairs, can escape liability for injury to the tenant caused by the contractor's negligence, the authorities are not entirely in accord.

Reverting briefly to an early statement on this question, it is stated in 14 R.C.L. Independent Contractors, sec. 39:

'Duties of Landlord--If a landlord is obligated to or attempts to make repairs to leased premises, due care must be exercised to the end that injury to the tenants will not be caused; and, if the landlord employs an independent contractor to make the repairs and he does the work so negligently that injury is thereby caused to a tenant, the landlord is liable. Thus, if he undertakes to repair the roof and the contractor employed to do the work is negligent, the landlord may be liable for injury to the tenant's goods caused by the leaking of the roof.' (Emphasis added.)

One of the cases cited in support of the above underlined statement and which is also cited by appellant is Wertheimer v. Saunders, 1897, 95 Wis. 573, 70 N.W. 824, 825, 37 L.R.A. 146. In the Wertheimer case the landlord occupied and used a small portion of the building which was leased to the plaintiffs as a tobacco storeroom. At the repeated requests of plaintiff-lessees, the defendant-lessors hired a contractor to replace the roof on the building. While a portion of the roof was off a rainstorm occurred damaging a portion of lessee's tobacco and suit was filed against the lessor for damages. The trial court found for defendants and lessees appealed.

The Supreme Court of Wisconsin reversed holding the lessor liable for the contractor's negligence but certain factors need to be observed which partially differentiates that case from the instant case. At the outset it is undisputed that the lessor actually occupied a portion of the building during the repairs thereby retaining control of the premises. As a preface to its conclusion the Court noted that replacing a roof is a type of project 'which will probably be injurious to third persons' and that reasonable care should be taken 'to obviate those probable consequences.' The Court referred to several cases which cast this special duty on the employer who has hired a contractor to perform a hazardous task, and quoted the following language from Bower v. Peate, 1 Q.B. 321, 326:

"A man who orders work to be executed, from which, in the natural course of things, injurious consequences must be expected to arise unless means are adopted by which they may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility, by employing someone else--whether it be the contractor employed to do the work from which the danger arises, or some independent person--to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious diference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done, from which mischievous consequences will arise, unless preventative measures are adopted. While it may be just to hold the party authorizing the work, in the former case, exempt from liability for injury resulting from negligence which he had no reason to anticipate, there is, on the other hand, good ground for holding him liable for an injury caused by an act certain to be attended with injurious consequences, if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for prevention may arise."

The Court then concluded that replacing a roof was a task which would naturally be hazardous or cause injury to third parties if proper precautions were not taken and, therefore, the lessor was liable for the negligence of the independent contractor.

This question was first annotated in 15 A.L.R. 971. The writer states that as of that time Connecticut and Pennsylvania applied the general doctrine of independent contractors and held that if the landlord selects a competent contractor, and the work contracted for is not inherently dangerous, the landlord is not liabel for injury to the tenant's goods caused by the negligence of the contractor. Lawrence v. Shipman, 1873, 39 Conn. 586; Meany v. Abbott, 1867, 6 Phila., Pa., 256. The text then cites several cases for the holding that a landlord is liable for damage to a tenant's goods through negligent repairs by an independent contractor irrespective of the duty of the landlord to have the repairs made. Upon examination of these cases it is evident that they turn on many variable or diverse factors such as whether the work let out to the independent contractor is inherently dangerous, whether the landlord is under a duty to repair, whether the work to be done is upon a part of the premises occupied exclusively by the tenant or upon a part solely or partly under the control of the landlord, and whether the injury occurs during the work or results from some defect in the completed work.

Wertheimer v. Saunders, supra, illustrates the inherently dangerous principle being applied to replacing a roof. In Mumby v. Bowden, 1889, 25 Fla. 454, 6 So. 453, 454, the foreman of a company engaged in the business of repairing rain gutters was employed by a landlord to repair a roof gutter and an under-workman was sent to do the job which required only a few hours work. The Supreme Court noted that:

'* * * There was no occasion for the surrender of the premises, and there was none. The workmen went upon the roof to repair the gutter, but not under a contract which took from appellants [lessors] the control of the roof. In fact, there is a circumstances or two in the evidence which seems to indicate that even the work was under their [lessors'] control. * * * The work was for appellants [lessors]. It was on their premises, which remained in their control; and it was under their direction. * * * So the facts as to both premises and work concur to show control by appellants such as fastens responsibility on them for the negligence from which came the damage. In legal contemplation the laborers doing the work were their servants for that particular job, and this is the test of responsibility.' (Emphasis added.)

In St. Johns & H. R. Co. v. Shalley, 1894, 33 Fla. 397, 14 So. 891, the Court stated that where a contractor is employed to accomplish a certain work, and, through his or his servants' negligent or careless performance of it, damage results to a third person, such contractor, and not his employer, is responsible to the injured party, provided such contractor, in the performance of the work, or in the mode and manner of doing it, is not subject to the direction or control of the employer. Accordingly, negligence in the conduct of another will not be imputed to a party, if he neither authorized such conduct, nor participated therein, nor had the right nor power to control it. Gulf Refining Co. v. Wilkinson, 1927, ...