Hall v. Holland

Decision Date06 October 1950
Citation47 So.2d 889
CourtFlorida Supreme Court

Hamilton & Langbein, West Palm Beach, for appellant.

Baxter Goodlett, West Palm Beach, for appellee.

ROBERTS, Justice.

Plaintiff-appellant sued in the court below to recover damages for injuries alleged to have been sustained by reason of defendant-appellee's failure to provide him with a safe place to work. Trial was had upon the issues made by defendant's pleas, and the jury found for the defendant. This appeal is from such verdict and judgment.

The only assignments of error argued on this appeal relate to the court's charge to the jury. Before discussing the errors thus assigned, we will briefly detail the facts of the case, which are as follows: Defendant employed plaintiff to paint a house owned by defendant, the plaintiff's employment status being either that of an independent contractor or an employee. The house was a one-story bungalow with an enclosed porch across the front and having a small wooden structure extending out from the porch over the front steps. This structure, which was variously referred to as a stoop, a porch, a canopy, and a shelter, was at least five feet wide and four and one-half feet deep, and was possibly somewhat larger. It was boxed in, with a peaked, or gabled roof, to match the gable effect of the enclosed front porch.

At the time plaintiff began painting the house, the canopy (as we will hereinafter refer to it) was supported by pilasters at all four corners, two against the porch and two at the outer corners of the canopy. The defendant advised plaintiff not to spend too much time on painting the canopy, as he was planning to replace the two outer posts, which were defective. Accordingly, the plaintiff left unpainted a portion of the wall immediately above the canopy. The defendant then proceeded with the repairs, which consisted of removing the defective outer posts and replacing them with two diagonal 'braces' extending from the outer corners of the canopy to the porch wall. The 'braces' were either 4X4's or 4X6's, about 5 1/2 feet long, which the defendant had pre-cut at a mill so as to form a 45-degree angle at the corner lof the canopy and the porch wall. After the remodeling, the canopy no longer stood on four legs like a table but hung on the wall like a bracketed shelf or balcony. The defendant employed a carpenter to do the actual work of removing the outer posts and inserting the diagonal braces. The defendant had not built the house, and had no actual knowledge of the manner in which the canopy was attached to the wall, nor could the manner of such attachment be ascertained by inspecting merely the outside of the canopy, as the structure was sealed in at the bottom and the roof joinder was concealed by weather-stripping. The defendant had neither architectural nor engineering experience, and did not consult anyone about the advisability of replacing the vertical posts with the diagonal braces. Neither did he obtain a building permit for the alteration, as required by City Ordinance.

The plaintiff, having completed the remainder of the house, undertook to paint the unfinished portion of the wall above the remodelled canopy. He testified that there was no way to paint this portion except by going on top of the canopy. (This was, however, contradicted by the defendant in his testimony.) In so doing, he went up the ladder and, in his own words, 'crawled out on this stoop. You had to lay down to paint this place and I laid down and started to move to get some paint on the brush and this stoop broke away from the house.' The canopy, or 'stoop', fell on him, inflicting severe injuries. The plaintiff had made no special examination of the manner in which the canopy was attached to the wall, testifying that he thought it was perfectly safe as the defendant told him he (the defendant) had been on top of the canopy during the preceding week-end; that he had seen the new braces and thought the carpenter knew how to put it up; that the defendant had told him to go up on the stoop to paint the canopy. The defendant denied this, and also denied that he had been up on the canopy. There is, however, no evidence that defendant warned plaintiff not to go up on the canopy, nor does it appear that defendant informed plaintiff of the fact that the remodeling was done without investigating the method of attachment. After the canopy fell, it appeared that it had been fastened to the wall only by three 16-penny nails; and, presumably because of the type of support afforded by the diagonal braces, this fastening was not sufficient to withstand the additional stress of the plaintiff's 175 pounds.

It is the plaintiff's theory that the defendant was negligent in (1) remodelling the canopy supports without seeking expert advice and without investigating the manner in which the canopy was attached to the porch wall, and (2) failing to obtain a building permit in violation of a City Ordinance which, it is alleged, would have insured a safe construction, as the standards of construction prescribed by ordinance required that 'All members shall be so framed, anchored, tied and braced together as to develop the maximum strength and rigidity necessary for the purpose for which they are used.' The defendant contends, on the other hand, and so pleaded, that the plaintiff was not lawfully on the canopy at the time of the injury; that defendant had not invited or requested plaintiff to go upon the canopy; that there was no duty on the part of defendant to keep the canopy in a reasonably safe condition to sustain a live load equivalent to the weight of plaintiff; and that the plaintiff's own negligence in going upon the canopy proximately contributed to his injury.

At the outset, it may be stated that the duty of the defendant towards the plaintiff, with respect to the condition of the canopy, would appear to be the same whether the plaintiff was there as the employee of defendant or as an independent contractor. An independent contractor has the status of a business visitor, or invitee, upon the premises. Gowing v. Henry Field Co., 225 Iowa 729, 281 N. W. 281, 284; Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26; Reardon v. Exchange Furniture Store, 7 W.W.Harr. 321, 37 Del. 321, 183 A. 330; McLaughlin v. Creamery Package & Mfg. Co., Mo.App., 130 S.W.2d 656; Magnolia Petroleum Co. v. Barnes, 198 Okl. 406, 179 P.2d 132.

Whether plaintiff was an employee-invitee or a business visitor-invitee, it was the duty of the defendant to use reasonable care in maintaining the premises in a reasonably safe condition and to have given the plaintiff timely notice and warning of latent and concealed perils, known to the defendant, or which by the exercise of due care should have been known to him, and which were not known by plaintiff or which, by the exercise of due care, could not have been known to him. Tutwiler v. I. Beverally Nalle, Inc., 152 Fla. 479, 12 So.2d 163; Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376; Fred Howland, Inc., v. Morris, 143 Fla. 189, 196 So. 472, 128 A.L.R. 1013; Restatement of Torts, Vol. 2, Sec. 343; 38 Am.Jur., Negligence, page 754; 35 Am.Jur., Master and Servant, page 612.

While the invitee is entitled to expect that the owner will take reasonable care to discover the actual condition of the premises and either make them safe or warn him of dangerous conditions, Restatement of Torts, Section 213; 35 Am.Jur., page 612; Haefeli v. Woodrich Engineering Co., 255 N.Y. 442, 175 N.E. 123, 126; Malolepszy v. Central Market, 143 Neb. 356, 9 N.W.2d 474, such owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses, and is not required to give to the invitee notice or warning of an obvious danger. Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26. It has also been held that the owner is under no legal duty to alter the premises so as to eliminate known and obvious dangers. Magnolia Petroleum Co. v. Barnes, 198 Okl. 406, 179 P.2d 132.

It is also a rule, applicable here, that the owner or occupant of premises owes the same duty to exercise ordinary care for safety of persons upon his premises whether they are there by express or implied invitation. It is held that there is no practical difference between the one situation and the other, the...

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