Jackson v. L.A.W. Contracting Corp.
| Decision Date | 23 January 1986 |
| Docket Number | 84-1665,Nos. 84-1623,s. 84-1623 |
| Citation | 11 Fla. L. Weekly 270,481 So.2d 1290 |
| Parties | 11 Fla. L. Weekly 270, 42 UCC Rep.Serv. 1628, Prod.Liab.Rep. (CCH) P 10,861 Lee Anne JACKSON, Lael R. Jackson and Stromberg-Carlson, Appellants, v. L.A.W. CONTRACTING CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
Bill McCabe of Shepherd, McCabe & Cooley, and Marcia K. Lippencott, Orlando, for appellants Lee Anne Jackson and Lael R. Jackson.
Robert E. Bonner of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for appellant Stromberg-Carlson.
Sharon Lee Stedman of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellee.
This case involves the liability of a road contractor who resurfaced a private road under contract with the owner for injuries to a third person whose automobile skidded on the slippery surface of the resurfaced road.
Appellee, L.A.W. Contracting Corporation (contractor) repaired, recoated and restripped a private road under contract with appellant Stromberg-Carlson, the owner of the land on which the road was located. The Jacksons were injured when their vehicle skidded on the resurfaced road. The Jacksons sued Stromberg-Carlson and the contractor, and Stromberg-Carlson cross-claimed against the contractor seeking indemnification and contribution. The ultimate claims against the contractor were (1) negligence, (2) strict liability, and (3) breach of implied warranty of merchantability. The issues on appeal are whether the trial court erred in entering a summary judgment in favor of the contractor and against the owner 1 as to the owner's indemnity count against the contractor relating to the Jacksons' claim of negligence against the owner, and a summary judgment in favor of the contractor and against the Jacksons as to the claim based on the theories of strict liability and breach of implied warranty of merchantability. We affirm.
The summary judgment in favor of the contractor on the theory of strict liability was proper because the concept of strict liability applies to consumer products and does not apply to improvements to real property. Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), pet. for rev. den., 441 So.2d 632 (Fla.1983). Of course, this principle is inapplicable where the injuries result not from the real property as improved by the alleged defective product but directly from a defective product manufactured by defendant, which product may have itself been incorporated into the improvement of the realty before the injury from the product occurred. Nevertheless the principle and not the exception applies here because in this case the contractor essentially was rendering services for the improvement of real property and that the supplying of goods was a minor element of the transaction.
The argument that the contractor should be strictly liable as a manufacturer in this case is not convincing. Here, the manufacture of the road sealer (a coal tar petroleum emulsion sealer known by the trade name of Cosmicoat) recommended that, to aid its application and achieve the proper coverage rate, ten percent water be added to the Cosmicoat while stirring and that, if necessary because the temperature is high and the humidity is moderate or low, the pavement be dampened or additional water be added to the manufacturer's product. The contractor did not manufacture the Cosmicoat and did not become a manufacturer of a defective product merely because it mixed water with the Cosmicoat in accordance with the manufacturer's instructions for use. Compare Vaughn v. Chadbourne Inc., 462 So.2d 512 (Fla. 1st DCA 1985), where the same entity owned a...
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