Horton v. Gulf Power Co.

Citation401 So.2d 1384
Decision Date13 August 1981
Docket NumberNos. SS-191,SS-192,s. SS-191
PartiesJohn HORTON and Angela Horton; Joe H. Gilley and Betty Gilley, Appellants, v. GULF POWER COMPANY, Appellee.
CourtCourt of Appeal of Florida (US)

Norton Bond, Pensacola, for appellants.

Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.

BOOTH, Judge.

This cause is before us on appeal from final summary judgment entered in favor of Gulf Power, appellee, in a suit for personal injuries sustained by Horton and Gilley, employees of Foster Wheeler, an independent contractor. The accident occurred on the premises of Gulf Power when a scaffold owned by Gulf Power fell. Foster Wheeler was using Gulf Power's scaffold in connection with its repair and maintenance work on a unit of the Gulf Power Generating Plant. Foster Wheeler had built the unit in question and regularly performed repair and maintenance service on the unit for Gulf Power. Gulf Power purchased the scaffold new and turned it over to Foster Wheeler. Foster Wheeler was responsible for assembling and testing the scaffold and knew that the load limit was two men. There were sticker markings on the scaffold stating the load limit. At the time of the accident there were six men, employees of Foster Wheeler, on the scaffold.

Foster Wheeler's foreman testified he had modified the scaffold to make it support more weight by having a device referred to as a "come-along" attached to the center of the scaffold which could be secured at each elevation where work was being done. At the time of the accident, however, the come-along was not in use. Further testimony was that Foster Wheeler's employees had damaged the scaffold bolts by over tightening, requiring that the bolts be replaced, and that there was a "home-made" piece welded at one end of the scaffold where it was fastened to the scaffold motor and air coil. The accident occurred when the two bolts in the homemade piece sheered off, causing the scaffold end to fall away from the motor.

Suit was filed against Gulf Power and the scaffold manufacturer, Spider Staging. As to the latter, the trial court denied summary judgment. Summary judgment was entered in favor of Gulf Power, the trial court holding:

Since Gulf Power Company furnished the scaffold, it had a duty to use reasonable care for the safety of the independent contractor's employees, but this duty was discharged by full and adequate warning to the independent contractor's superintendent. It had no duty to seek out and give individual warning to each employee of Foster Wheeler. It had no way of knowing which employees would be working on the scaffold, and it is common business practice to deal only with supervisory personnel when repair work is performed by independent contractors. It is generally held that the duty to warn employees of an independent contractor is satisfied by notice to the contractor or supervisory personnel. See Fla. Power and Light Co. v. Robinson, 68 So.2d 406 (Fla. 1953), which cited with approval Storm v. New York Tel. Co., 270 N.Y. 103, 200 N.E. 659. The reasons for this rule are clearly set forth in the Storm case. This was also recognized as being the law of Florida in Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla.2d DCA 1976).

We agree with the trial court's statement of the law and determination that summary judgment be granted.

The duty of Gulf Power, as owner of the premises and of the scaffold, was to use reasonable care for the safety of the employees of the independent contractor, by giving notice of a dangerous condition known to the owner but unknown to the independent contractor and its employees. In Florida Power and Light Company v. Robinson, 68 So.2d 406, 411 (Fla. 1953), the Florida Supreme Court held that the owner's duty to warn is discharged by notice given to the supervisory personnel of the independent contractor, holding:

The case of Storm v. New York Telephone Co., 270 N.Y. 103, 200 N.E. 659, 661, is an excellent illustration of the application of the rule as to the duty of the owner of property to warn of danger ... The telephone company was held to have fulfilled its "duty * * * to use reasonable care to give warning" upon a showing that it had notified plaintiff's foreman (foreman of independent contractor) "to be sure to pike or rope the poles * * * because we know and you know that those poles are not sound...."

In the Robinson case, the Florida Supreme Court ruled in favor of an employee of an independent contractor in his suit against the owner of the electric poles which were being repaired at the time of the accident. The basis for the holding in that case was the failure of the owner of the poles, who had knowledge of latent defects in certain poles that were to be climbed by the employees of the contractor, to give notice of those defects. The Florida Supreme Court contrasted the facts of the Storm case, supra, finding that, in the case before it, "the Power Company negligently failed to notify the independent contractor of the condition of Pole 35-L-7." 68 So.2d at 413.

In Storm v. New York Telephone Company, supra, the court held that the duty of the telephone company to warn of unsafe conditions of telephone poles was satisfied by the notification of supervisory officials of the independent contractor engaged in repairing the poles. The court expressly rejected the contention that the telephone company, as owner of the poles, had the duty to warn every employee of the lighting company or that placards should have been placed on the poles so that they would be visible to lineman about to climb the pole. In rejecting these contentions, the court held (200 N.E. at 661-662):

Warning of danger was thus given to all men in charge of the work and to all supervisory officials of the decedent.... To require the defendant to bring notice home to every employee of the lighting company who might possibly be involved on this job on penalty of otherwise failing in duty would result in imposing a standard of duty exceeding reasonable bounds. ... (T)he employee has placed himself in a relationship whereby it may be reasonably assumed that notice to his supervisory officials will be communicated in the ordinary course to all employees on the work.

In Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.2d DCA 1976), cert. denied, 344 So.2d 323 (Fla. 1977), both the property owner and the independent contractor had knowledge of a defective main disconnect switch, but the employee of the independent contractor injured as a result of that defect was not warned. The opinion states the following rule (327 So.2d at 123, 125):

One who hires an independent contractor is not ordinarily liable for injuries sustained by that contractor's employees in their work.... There is a duty to warn employees of a independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition of his premises.... However, it is generally held that the duty is satisfied by notice to the contractor or supervisory personnel. (citations omitted)


It is inconceivable to us that the Mall (owner) should then become liable to the employees of the very expert contractor it relied upon when the contractor had been completely aware of the dangerous condition but nevertheless elected to proceed.

The evidence here was that the supervisory personnel of the independent contractor who were in control of the scaffold and the operations being performed were aware of the load limitations and the danger of overloading the scaffold and that their knowledge was equal, if not superior to that of the owner. 1 Nor is the owner vicariously liable to the contractor's employee under the dangerous or hazardous work doctrine for the negligence of the contractor and its employees. 2 This case is to be distinguished from suits by third parties (non-employees) injured by dangerous conditions created on the premises by the contractor for which the owner may be held liable. 3

A party moving for summary judgment must meet the requirements of Rule 1.510(c), Fla.R.Civ.P., by showing unequivocally that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. In the...

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