Grand Union Co. v. Rocker, s. 83-1594

• Decision Date: 17 July 1984
• Docket Number: Nos. 83-1594,83-1617 and 83-1640,s. 83-1594
• Citation: 454 So.2d 14
• Court: Florida District Court of Appeals
• Parties: The GRAND UNION COMPANY, a Delaware corporation, and Spector & Sons and Liberty Mutual Insurance Company, Appellants, v. Arline ROCKER, Appellee.

Page 14

454 So.2d 14

The GRAND UNION COMPANY, a Delaware corporation, and Spector & Sons and Liberty Mutual Insurance Company, Appellants, v. Arline ROCKER, Appellee.

Nos. 83-1594, 83-1617 and 83-1640.

District Court of Appeal of Florida Third District.

July 17, 1984.

Magill, Reid & Lewis and R. Fred Lewis, Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellants.

Gilmour, Morgan & Rosenblatt and Victor Lance, Miami, for appellee.

Before BARKDULL, BASKIN and FERGUSON, JJ.

BASKIN, Judge.

In consolidated appeals, The Grand Union Company (Grand Union) and Spector & Sons challenge adverse judgments entered in a slip-and-fall action. We reverse.

On a rainy day in August, 1980, Arline Rocker and her daughter went shopping at the Grand Union store located at 199th Street and N.W. 2nd Avenue in Miami. When they finished shopping, Mrs. Rocker asked her daughter to wait in front of the store with the groceries while Mrs. Rocker went to the parking lot to get the car. As Mrs. Rocker started down the ramp in front of the store, she slipped and fell, injuring herself. Seeking to recover damages for these injuries, Mrs. Rocker filed suit against Grand Union, Spector & Sons (the property owner), and Spector & Sons' insurer, Liberty Mutual Insurance Company.

In her complaint, Mrs. Rocker alleged that appellants negligently maintained the sidewalks and the parking and service areas, and allowed the ramp at the entrance of the store to remain in a dangerous and unsafe condition. Grand Union filed a crossclaim against Spector & Sons for contribution and indemnification. At trial, Mrs. Rocker presented expert testimony that the ramp violated both the present South Florida Building Code and the code in effect in 1965 when the ramp was built. The experts, an architect and a civil engineer, testified that the slope of the ramp exceeded the maximum slope specified in the building codes and that the ramp did not have the required non-slip or "broomed" concrete surface. At the conclusion of all the evidence, and despite the objections of appellants, the trial court instructed the jury that a violation of the South Florida Building Code constitutes negligence and that if the jurors found that "a person alleged to have been negligent violated this ordinance, such person was negligent." The jury returned a verdict finding Grand Union 60% negligent, Spector & Sons 40% negligent and Mrs. Rocker not negligent. The court entered final judgment in accordance with the verdict and directed a verdict in favor of Spector & Sons on Grand Union's indemnification claim. Grand Union appeals the order directing a verdict in favor of Spector & Sons on the indemnification claim and both Grand Union and Spector & Sons seek reversal of the final judgment entered in favor of Mrs. Rocker.

The primary issue presented for consideration concerns the propriety of the trial court's instruction to the jury that a violation of the South Florida Building Code is negligence. We must determine whether a violation of the South Florida Building Code is the type of statutory violation which would constitute negligence per se. In deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973), the Florida Supreme Court stated that not all violations of statutes are negligence per se. The court divided statutory violations into three categories: (1) violation of a strict liability statute designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se; (2) violation of a statute establishing a duty to take precautions to protect a particular class of persons from a particular injury or type of injury, also constituting negligence per se; (3) violation of any other kind of statute, constituting mere prima facie evidence of negligence.

The South Florida Building Code requires that ramps do not exceed a specific slope and that they have either a "non-slip" or "broomed concrete" surface. S.Fla.Bldg.Code, §§ 3106.2; 3106.6 (1979); S.Fla.Bldg.Code, § 3103 (1965). ^* Violations of the code fall outside the parameters of the strict liability category set forth in deJesus. Furthermore, building code violations do not fit into the second deJesus category because the building code is designed to protect the general public rather than a particular class of individuals. See Groh v. Hasencamp, 407 So.2d 949 (Fla. 3d DCA 1981), review denied, 415 So.2d 1360 (Fla.1982) (violation of zoning ordinance for protection of general public rather than particular class of persons evidence of negligence and not negligence per se); Schulte v. Gold, 360 So.2d 428 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979) (violation of statute providing that every public lodging establishment shall be properly plumbed, lighted, heated, cooled and ventilated would not constitute negligence per...