Johnson v. Boca Raton Community Hosp., Inc.

• Decision Date: 04 June 2008
• Docket Number: No. 4D07-1153.,4D07-1153.
• Parties: Anna JOHNSON, individually, as widow, and as Personal Representative of the Estate of Gene A. Johnson, deceased, Appellant, v. BOCA RATON COMMUNITY HOSPITAL, INC., Bethesda Memorial Hospital, Inc., Crown Cork and Seal Company, Inc., Georgia-Pacific Corporation, Bigham Insulation Supply Co., Inc., Owens-Illinois, Inc., National Service Industries, Inc., North Brothers, Inc., Shool & Fletcher Insulation, CP., Foster Wheeler Corporation, Rapid-American Corporation, The Flintkote Company, Kaiser Aluminum & Chemical Corp., A.P. Green Refractories Company, North American Refractories Company, General Electric, Inc., Florida Power & Light Corp., Intercontinental Health Systems, d/b/a St. Mary's Medical Center, Good Samaritan Hospital, Inc., Indian River Memorial Hospital, Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, Florida Atlantic University, Martin County Memorial Medical Center, Lawnwood Regional Medical Center, successor in interest to Fort Pierce Hospital, North Broward Hospital District, Belle Glade Medical Center, Inc., Viacom, Inc., City of Lake Worth, and the City of Vero Beach, Appellees.
• Court: Florida District Court of Appeals

985 So.2d 593

Anna JOHNSON, individually, as widow, and as Personal Representative of the Estate of Gene A. Johnson, deceased, Appellant, v. BOCA RATON COMMUNITY HOSPITAL, INC., Bethesda Memorial Hospital, Inc., Crown Cork and Seal Company, Inc., Georgia-Pacific Corporation, Bigham Insulation Supply Co., Inc., Owens-Illinois, Inc., National Service Industries, Inc., North Brothers, Inc., Shool & Fletcher Insulation, CP., Foster Wheeler Corporation, Rapid-American Corporation, The Flintkote Company, Kaiser Aluminum & Chemical Corp., A.P. Green Refractories Company, North American Refractories Company, General Electric, Inc., Florida Power & Light Corp., Intercontinental Health Systems, d/b/a St. Mary's Medical Center, Good Samaritan Hospital, Inc., Indian River Memorial Hospital, Public Health Trust of Dade County, Florida d/b/a Jackson Memorial Hospital, Florida Atlantic University, Martin County Memorial Medical Center, Lawnwood Regional Medical Center, successor in interest to Fort Pierce Hospital, North Broward Hospital District, Belle Glade Medical Center, Inc., Viacom, Inc., City of Lake Worth, and the City of Vero Beach, Appellees.

No. 4D07-1153.

District Court of Appeal of Florida, Fourth District.

June 4, 2008.

Rehearing Denied August 4, 2008.

Reed A. Bryan, Fort Lauderdale, for appellant.

William T. Viergever of Sonneborn, Rutter, Cooney & Klingensmith, P.A., West Palm Beach for Appellees-Boca Raton Community Hospital, Inc. and Bethesda Memorial Hospital, Inc.

TAYLOR, J.

Anna Johnson, individually and as personal representative of the estate of her husband, Gene Johnson, brought this wrongful death action against several hospitals, including defendants Boca Raton Community Hospital, Inc. and Bethesda Memorial Hospital, Inc. on theories of negligence and premises liability. Plaintiff sought recovery for injuries Mr. Johnson suffered as a result of his exposure to asbestos while working as a pipe insulator for an independent contractor on hospital premises. The trial court entered summary judgment in favor of Boca Raton Community Hospital and Bethesda Memorial Hospital. We affirm.

The record evidence in this case shows that Gene Johnson worked as a pipe insulator at Boca Raton Community Hospital and Bethesda Memorial Hospital during the early 1960's. At all times while working at these hospitals, Mr. Johnson was employed by an independent subcontractor hired by the hospitals to perform insulation work. Hospital employees did not come onto the jobsite or control the manner in which employees of the subcontractor performed their work. During the course of his employment, Mr. Johnson worked with pipe covering, cement, and asbestos-containing products that exposed him to asbestos dust. In September 2000, Mr. Johnson was diagnosed with lung cancer. A year later he died of lung cancer.

Plaintiff sought to hold the hospitals liable for the injuries Mr. Johnson suffered as a result of his exposure to asbestos while working at sites owned by the hospitals. Specifically, plaintiff alleged that the hospitals had superior knowledge of the dangers of asbestos in the early 1960's and thus owed Mr. Johnson a duty to warn of the dangers existing on their premises. Plaintiff also alleged that, as landowners, the hospitals owed a duty to maintain their premises in a safe condition, which they breached by allowing Mr. Johnson to install asbestos-laden products on their premises.

Both hospitals moved for summary judgment, arguing that they did not control the manner or means by which Mr. Johnson performed his duties and, further, did not owe a duty to warn him of the dangers of asbestos. They argued that Mr. Johnson possessed at least equal knowledge of the dangerous condition as the hospitals. The trial court granted the motion and entered summary judgment on behalf of the hospitals.

Summary judgment is properly granted when there are no issues of material facts, and the moving party is entitled to judgment as a matter of law. Anderson v. Maddox, 65 So.2d 299, 300 (Fla.1953). We review a trial court's grant of summary judgment de novo. Florida Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in performing their work. Cecile Resort, Ltd. v, Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) (quoting Van Ness v. Indep. Constr. Co., 392 So.2d 1017, 1019 (Fla. 5th DCA 1981)); Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518, 520-21 (Fla. 3d DCA 1998); Holsworth v. Fla. Power & Light Co., 700 So.2d 705, 707 (Fla. 4th DCA 1997).

Exceptions to the general rule exist if the owner has been "actively participating in the construction to the extent that he directly influences the manner in which the work is performed" or has "engaged in acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee." Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973). Here, the undisputed facts demonstrate that Mr. Johnson was an employee of an independent subcontractor, and the hospitals did not actively supervise or directly influence the manner in which he performed his work or control the methods by which he performed and completed the work.

Owner liability to employees of independent contractors may also attach when the owner, who has actual or constructive knowledge of latent or potential dangers on the premises, has breached a duty to warn employees of such danger. Holsworth, 700 So.2d at 707 (citing Fla. Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953) and Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla. 2d DCA 1976)). This duty to warn ties into the exception noted above for specific identifiable acts of negligence which were either negligently created or approved by the owner. Holsworth, 700 So.2d at 707. As we explained in Holsworth, the owner's duty to warn depends upon whether the dangerous condition was known to the owner but unknown to the independent contractor. Id. at 708. In this case, the hospitals' duty to warn of latent potential dangers on their premises would arise if they had superior knowledge of such dangers. See Fla. Power & Light v. Robinson, 68 So.2d at 411; see also Indian River Foods, Inc. v. Braswell, 660...