Geer v. Bennett, 69--81

• Decision Date: 08 June 1970
• Docket Number: No. 69--81,69--81
• Parties: Glenn GEER, Appellant, v. Ames BENNETT and John B. Marion, Appellees.
• Court: Florida District Court of Appeals

Page 311

237 So.2d 311

Glenn GEER, Appellant, v. Ames BENNETT and John B. Marion, Appellees.

No. 69--81.

District Court of Appeal of Florida, Fourth District.

June 8, 1970.

Rehearings Denied Aug. 6, 1970.

Larry Klein, of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellant.

Charles H. Damsel, Jr., and John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellee Bennett.

Kirk Sullivan, West Palm Beach, for appellee Marion.

CROSS, Chief Judge.

Appellant-plaintiff, Glenn Geer, appeals from a final judgment entered by the court in favor of the appellees-defendants, Ames Bennett and John B. Marion, in a cause of action in negligence against the defendants who are architects, for damages sustained by the plaintiff, a concrete mason, when he fell from the second floor of a building under construction. We reverse.

On September 21, 1964, the County of Palm Beach entered into a written contract with the defendants, Ames Bennett and John B. Marion, to draw up plans and specifications for the construction of a new airport terminal building at the Palm Beach International Airport and to supervise the construction of the work. After the plans and specifications had been drawn, Palm Beach County let the contract for construction of the airport terminal building to the Arnold Construction Company, and the defendants, Ames Bennett and John B. Marion, undertook to supervise the construction work pursuant to the terms and provisions of the contract. The plaintiff, Glenn Geer, was a concrete mason employed by Arnold Construction Company.

At the time of the accident which gave rise to this cause of action, the plaintiff was engaged in pouring a floor slab for the mezzanine floor of the terminal building. The plaintiff was injured when he fell from the second floor of the building under construction while walking along a wooden form on the outside of a recently poured section of this slab. The building at that particular time was at the stage of construction in which the walls had not been erected on the second floor and there were no guard rails or any other protective device to prevent persons working on the second floor from falling.

The plaintiff brought suit against the defendant-architects for the personal injuries he suffered as the result of the fall from the scaffold. The fourth amended complaint as filed by the plaintiff, leaving out those parts which are formal and superfluous, alleged as follows. That on or about September 21, 1964, the defendant-architects were employed by Palm Beach County, Florida, to prepare detailed construction drawings, specifications and other documents for the construction of an airport terminal complex to be located in Palm Beach County, Florida; that the defendants and Palm Beach County entered into a contract on or about September 21, 1964, which in addition to committing to the defendants the preparation of construction drawings, specifications and other documents, made it the defendants' responsibility to consult and assist Palm Beach County in the selection of a resident project representative, to make daily visits to the construction site to observe the progress of the construction, to provide detailed instructions to the resident project representative, to provide proper prosecution of the construction work and supervision of same, to ascertain and assure that the construction work was progressing in strict accordance with the plans and specifications and the requirements of the funding and regulatory agencies, to directly supervise the field activities of the resident project representative and to maintain direct supervision over the contractors in the prosecution of their work. The contract between the architects, the contractor and Palm Beach County was attached to the complaint as an exhibit and incorporated therein by reference.

That on or about March 16, 1966, the plaintiff was employed as a concrete mason for Arnold Construction Company, a contractor or subcontractor engaged in the construction of the airport, and was pouring concrete for a second floor of the airport building; that the plaintiff was at all times acting within the scope of his employment, working on a floor approximately twelve feet above the ground level, and was totally unprotected by a guard rail or any other type of device to prevent persons from falling to the ground from this height; that the defendants affirmatively undertook and assumed the responsibility 'as the Commission's representative at the work site, the Engineer-Architect-Consultant shall maintain direct supervision of the field activities of the Resident Project Representative(s), and through them he shall maintain direct supervision over the Contractor(s) in the prosecution of their work.' (Exhibit A, 4, page 7); and further to 'serve as the Commissioners' professional representative in all phases of the work' (Exhibit A, page 3); and further, to make '(d)aily visits to the construction site during construction * * * to observe the progress of the construction work, and to provide detailed instruction to the Resident Project Representative(s) * * * such instructions intended to provide proper prosecution of the construction work and supervision of the work of the appropriate contractor. Both of the above services to ascertain and assure that the construction work is progressing in strict accordance with the plans and specifications And the requirements of the funding And regulatory agencies * * *.' The complaint further alleges that the defendants by affirmatively agreeing to the above affirmatively undertook and assumed the responsibility to direct the contractor in regard to the installation of guard rails, if they were not installed and to insure that the construction work was proceeding In accordance with all safety regulations promulgated and administered by the Florida Industrial Commission and all other applicable regulations and ordinances; that the failure to direct the installation of guard rails amounted to negligence by the defendants, which negligence consisted of failing to ascertain and insure that the construction work was proceeding in accordance with the safety regulations promulgated and administered by the Florida Industrial Commission's ch. 185S--6.08, which directs that in construction of this nature a floor such as the one described herein shall be guarded by guard rails on all open sides, said guard rails being more specifically described in ch. 185S--6.05; failing to make necessary inspections to assure that safe construction practices would be used; failing to require that guard rails be used during the construction of open floors with the knowledge that the failure to use the same would result in a dangerous condition likely to cause injury to persons such as the plaintiff; failure to enforce all applicable regulations, ordinances, including the Florida Industrial Commission's safety regulations; planning, designing and supervising the construction and installation of the hazardous condition with knowledge that the same would be used and worked on by persons such as the plaintiff; that at all times material hereto the defendants affirmatively undertook and assumed the duty of directing the installation of the guard rails in accordance with the safety regulations promulgated and administered by the Florida Industrial Commission's ch. 185S--6.08, which directs that in construction of the nature hereinbefore described, the floor hereinbefore described shall be guarded by guard rails on all open sides, said guard rails being more specifically described in ch. 185S--6.05; that the facts in regard to the assumption of this duty consisted of defendants or their agents, employees or representatives observing that guard rails were not being utilized on the job site in accordance with the aforesaid regulations of the Florida Industrial Commission prior to and at the time of the accident hereinafter described. Defendants or their agents, employees or representatives advised the contractors, the contractors' superintendents or the contractors' foremen prior to the accident that guard rails should be installed. Guard rails were not installed as directed by the defendants, and the defendants, or their agents, employees or representatives knew that the guard rails had not been installed. Defendants took no further action to see that the guard rails were installed, although they knew that as a proximate result of the failure to install guard rails a dangerous condition resulted, which was likely to cause injury to persons such as the plaintiff. Final allegations were to the extent that the defendants were negligent in assuming the duty to direct the installation of guard rails and then negligently carrying out said duty; that as a result of the defendants' negligent failure to install a guard rail the plaintiff suffered a fall from the floor to the ground...