Kala Investments, Inc. v. Sklar

• Decision Date: 31 January 1989
• Docket Number: No. 86-3004,86-3004
• Citation: 14 Fla. L. Weekly 330,538 So.2d 909
• Parties: 14 Fla. L. Weekly 330 KALA INVESTMENTS, INC., and Travelers Insurance Company, Appellants, v. Isaac SKLAR; Isaac Sklar Associates & Architects, Inc.; Moises Chorowski; Moises Chorowski General Contractors, Inc.; Carlos Cordoso; and Realty Corporation of America, f/k/a Devco Aluminum Products, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 909

538 So.2d 909

14 Fla. L. Weekly 330

KALA INVESTMENTS, INC., and Travelers Insurance Company, Appellants, v. Isaac SKLAR; Isaac Sklar Associates & Architects, Inc.; Moises Chorowski; Moises Chorowski General Contractors, Inc.; Carlos Cordoso; and Realty Corporation of America, f/k/a Devco Aluminum Products, Inc., Appellees.

No. 86-3004.

District Court of Appeal of Florida Third District.

Jan. 31, 1989.

Rehearing Denied March 15, 1989.

George, Hartz & Lundeen, Daniels and Hicks and Bambi G. Blum, Miami, for appellants.

Taylor, Brion, Buker & Greene and Arnaldo Velez, Lapidus & Frankel and David B. Haber, Smith & Supraski and Jose Smith, Miami, Richard Sherman, Fort Lauderdale, for appellees.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The central question presented by this case is whether Kala Investments, Inc., the present owner of an apartment building, may seek to recover from its co-defendants--among which are the architect and contractor who designed and erected the building--the amount paid in settlement with the plaintiffs, injured by a defect in the building, where, (a) Kala is not contractually or vicariously liable for the co-defendants' acts and cannot therefore seek indemnity, and (b) Kala and the persons involved in the design and construction of the building cannot share the common liability necessary to support Kala's claim of contribution because of the rule of Slavin v. Kay, 108 So.2d 462 (Fla.1958). We hold that under the separate theory of equitable subrogation, Kala may seek to recover the amount paid to the plaintiffs and that the issue of whether the defect in the building was latent, as Kala claims, or patent, as the trial court summarily found, is an issue of fact to be resolved by a jury. Therefore, as to all co-defendants except one, we reverse the summary judgments entered against Kala and remand the cause to the trial court for further proceedings.

I.

The case arose when a four-year-old child was injured after falling through a fourth-story screened window in his parents' apartment in the building owned by Kala. The child and his parents sued the following defendants:

(1) the building's present owners--Kala Investments, Inc.

(2) the present owner's insurer--Travelers Insurance Co.

(3) the original owner--Northeast Plaza Apartments, Inc.

(4) the architect--Isaac Sklar and Isaac Sklar Associates & Architects, Inc.

(5) the general contractor--Moises Chorowski and Moises Chorowski General Contractors, Inc.

(6) the window manufacturer/installer--Realty Corp. of America, f/k/a Devco Aluminum Products, and

(7) the building inspector--Carlos Cardoso.

The complaint alleged that the window and screen through which the child fell did not comply with the South Florida Building Code which requires that windows less than thirty-two inches from the floor have either a guardrail or like protective device in the form of solar screening which can withstand a load of twenty pounds per lineal foot applied in any direction. Without dispute, the window in the apartment was considerably less than thirty-two inches above the floor, had no guardrail, and the screen in the window was not nearly as strong as the Code required.

Although, as might be expected, the suit produced a flurry of claims by the co-defendants against one another, for present purposes it is enough to know that Kala crossclaimed against all joined defendants and filed a third-party complaint against the disjoined architect after the plaintiffs settled with and voluntarily dismissed the architect. Kala claimed that it was not at fault because the defect was not obvious to it and, alternatively, that, if at fault, others who had created the defects were at fault as well. Kala's crossclaims and third-party complaint invoked the usual rubrics of indemnity and contribution.

The trial court determined "as a matter of law that the condition complained of by the Plaintiffs, to wit: The placement of the window and absence of a shield guardrail or other safety device was patent," and further, that Kala's liability was not vicarious. Accordingly, it entered summary judgment for the original owner, architect, general contractors, window manufacturer-installer, and building inspector and dismissed with prejudice the plaintiffs' complaint and any crossclaim and third-party complaint pending against these defendants, including, of course, Kala's. ¹ Kala then settled with the plaintiffs and appealed the judgment in favor of the co-defendants. ²

II.

A.

The rule of Slavin v. Kay, 108 So.2d 462 (Fla.1958), is that a building contractor is not liable to third parties for injuries that occur after the contractor has completed a building and it has been accepted by the owner, if the defect is found to be a "patent" defect which the owner could have discovered and remedied. The rationale of the rule is that the owner:

"By occupying and resuming possession of the work ... deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author."

Slavin v. Kay, 108 So.2d at 466 (quoting Casey v. Hoover, 114 Mo.App. 47, 63, 89 S.W. 330, 334 (1905)).

And although the Slavin rule has its critics, see Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978); Edward F. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla.1986) (Adkins, J., dissenting), the rule remains alive and well, see Easterday v. Masiello, 518 So.2d 260 (Fla.1988), and any news of its passing is greatly exaggerated.

Under the Slavin rule, since its advent expanded to limit the liability of engineers and architects as well as contractors, the original wrongdoer is not relieved of liability if the defect is found to be "latent," that is, not apparent by use of one's ordinary senses from a casual observation of the premises, Kagan v. Eisenstadt, 98 So.2d 370, 371 (Fla. 3d DCA 1957), or "hidden from the knowledge as well as from the sight and ... not [discoverable] by the exercise of reasonable care," Grall v. Risden, 167 So.2d 610, 613 (Fla. 2d DCA 1964). See also Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978) (latent defect is one not discoverable by reasonable inspection); Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla. 2d DCA 1967) (latent defect is one not discernible by the exercise of reasonable care); Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965) (same).

B.

The co-defendants contend here, as they did below, that the defect was obvious because the placement of the window was "obviously" almost a foot lower than the code requirement and "obviously" did not contain a guard rail. But the test for patency is not whether the object itself or its distance from the floor was obvious to Kala, but whether the defective nature of the object was obvious to Kala with the exercise of reasonable care. Cf. Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla. 2d DCA 1967) (slickness of metal strip constituted dangerous condition for purposes of determining latency, "not its location or very existence").

In the present case, had the screening on the window been of the specified strength, the low placement of the window and the absence of a guardrail would not have violated the code and would not thereby constitute a defect. Here, there was no evidence that Kala had actual knowledge of the code violation and no evidence that Kala had any special knowledge of screening or the ability of different types of screens to withstand pressure loads. Thus, there are genuine issues of fact to be resolved by a jury as to whether the low window without a guardrail was an obvious defect to Kala, and even if so, whether Kala, through the exercise of reasonable care, should have discerned that the screening in the window was not of the strength specified in the building code. ³

It is well established that it is "peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care." Orlando Executive Park v. Robbins, 433 So.2d 491, 493 (Fla.1983). Because reasonable persons could differ as to whether Kala could have discovered the defect through the exercise of reasonable care, summary judgment in favor of the co-defendants based on Slavin was improper. Compare Lynch v. Brown, 489 So.2d 65 (Fla. 1st DCA 1986) (jury question as to whether invitee perceived dangerous condition of stairway where railing height, balcony design and lighting failed to comply with building code) and Echols v. Hammet, 423 So.2d 923 (Fla. 4th DCA 1983) (jury question as to whether defect in road was observable) and Welch v. Auto Owners Ins. Co., 369 So.2d 449 (Fla. 1st DCA 1979) (jury question as to whether landlord should have known of defective thin glass window which violated code) and Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965) (ordinarily, a jury question as to whether a defect is latent) with Seitz v. Zac Smith & Co., Inc., 500 So.2d 706 (Fla. 1st DCA 1987) (summary judgment affirmed where all parties agreed that missing peg was an obvious defect discoverable upon reasonable inspection) and Birch v. Capeletti Brothers, 478 So.2d 454 (Fla. 3d DCA 1985) (summary judgment affirmed upon conclusive evidence that defect in bridge roadbed was obvious to Department of Transportation) and Mori v. Industrial Leasing Corp., 468 So.2d 1066 (Fla. 3d DCA 1985) (dismissal of complaint against contractors affirmed because lack of parking area and barricades constituted a patent defect) and Bryant v. First Realty Investment Corp., 396 So.2d 1223 (Fla. 4th DCA 1981) (directed verdict affirmed upon clear evidence that defect was patent to owner where owner had taken special precautions to...