Lake Parker Mall, Inc. v. Carson

• Decision Date: 18 February 1976
• Docket Number: No. 74--1372,74--1372
• Citation: 327 So. 2d 121
• Parties: LAKE PARKER MALL, INC., and Utica Mutual Insurance Company, Appellants, v. Laurenne A. CARSON, as Administratrix of the Estate of Dennis J. Carson, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 121

327 So.2d 121

LAKE PARKER MALL, INC., and Utica Mutual Insurance Company, Appellants, v.Laurenne A. CARSON, as Administratrix of the Estate of Dennis J. Carson, Deceased, Appellee.

No. 74--1372.

District Court of Appeal of Florida, Second District.

Feb. 18, 1976.

John I. Van Voris, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellants.

Larry S. Stewart and Ira H. Leesfield, of Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellee.

SCHEB, Judge.

The appellants were defendants below and appeal a judgment entered against them upon a jury verdict in favor of the plaintiff/appellee in a wrongful death action.

The issues we address here are:

(1) Whether the standard of care imposed on a shopping center which maintains master switchboard to meter electricity to its tenants is equated with that of an electric utility; and

(2) Whether the shopping center's failure to maintain a required disconnect switch in operable condition was the proximate cause of an explosion resulting in the death of plaintiff's decedent.

Carson, plaintiff's decedent, was a vocational student working during the summer as an electrician's helper for M & M Electric Co.He died on October 16, 1972, as a result of injuries resulting from a tragic explosion at the electrical switchboard at Lake Parker Shopping Mall in Lakeland where he was installing an electric meter on the preceding August 22nd.

The City of Lakeland furnishes electrical energy to the Mall, a large shopping center which maintains switchboard containing numerous electrical meters, all owned by the City but installed there by Mall and used for the purpose of measuring electricity consumed by each of its tenants.The tenants are billed directly by the City for electrical energy.Carson's employer, M & M, was an independent licensed electrical contractor which the Mall hired to install meters and connect electrical service to its tenants.At the time of the accident, Carson, Boek and their supervisor, Ritter, all employees of M & M, were installing a meter to connect electricity to a new tenant.This involved plugging the meter into the switchboard.This is a technical operation, but is similar to plugging an electrical cord into a wall socket.A main disconnect switch called a 'Pringle' switch is attached to the electrical Switchboard.This is a safety feature required by Fla.Stat. Ch. 553, which adopts the National Electrical Code as setting minimal standards in this field and provides for local enforcement of such standards.If operative, you can throw the switch and effectively disconnect the current which otherwise would flow through the board to the various outlets in the shopping center complex.At the time of the accident this Pringle switch had been defective for about eight months.Watkins, manager of the Mall, was well award of this and had made several attempts to obtain repairs. ironically, on the day of the accident a manufacturer's representative was present to attempt to repair it.

The gravamen of the plaintiff's cause of action was: First, negligence of the defendant shopping mall in its failure to maintain its electrical facilities in the standard of care required by law, specifically Watkins' alleged negligence in failing to have the switch repaired in a timely manner; and second, failure to warn the plaintiff's decedent of that condition.

To sustain any cause of action predicated on negligence, it is fundamental that the plaintiff must establish:

(1) Existence of a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains;

(2) Failure of the defendant to perform that duty; and

(3) Injury or damage to the plaintiff proximately caused by such failure.

See23 Fla.Jur., Negligence, § 9;Tims v. Orange State Oil Co., Fla.App.2nd, 1964, 161 So.2d 844.

One who hires an independent contractor is not ordinarily liable for injuries sustained by that contractor's employees in their work.Florida Pub. Co. v. Lourcey, 1940, 141 Fla. 767, 193 So. 847.There is a duty to warn employees of an independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition of his premises.Somers v. Meyers, Fla.App.1st, 1965, 171 So.2d 598.However, it is generally held that the duty is satisfied by notice to the contractor or supervisory personnel.SeeFla. Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406, which quoted approvingly from Storm v. New York Tel. Co., 1936, 270 N.Y. 103, 200 N.E. 659.See also, Gulf Oil Corp. v. Bivins, 5th Cir.1960, 276 F.2d 753;Crawford Johnson & Co. v. Duffner, 1966, 279 Ala. 678, 189 So.2d 474;Levesque v. Fraser Paper Limited, 1963, 159 Me. 131, 189 A.2d 375;Hunt v. Laclede Gas Co., Mo.1966, 406 S.W.2d 33;Grace v. Henry Disston & Sons, 1952, 369 Pa. 265, 85 A.2d 118;Citizen's Utility Inc. v. Livingston, 1973, 21 Ariz.App. 48, 515 P.2d 345.

There was considerable evidence to show Carson knew of the defective Pringle switch and that the switchboard was 'hot' at the time of the accident.In fact, the lights in the room where he was working remained on while the work was progressing.If the switch had been operative and the power in the board had been shut off, the lights would have gone off also since the switch controlled the electricity flowing into the entire building.The plaintiff, nevertheless, suggests the jury could have inferred from other testimony that Carson had not been properly notified of the defective switch and did not know the board was energized.Even assuming this, arguendo, the Mall had discharged the ordinary legal duty on the part of a landowner since there was undisputed evidence that the principals of M & M had been notified.In fact, Maze, one of the principals in M & M learned of this malfunction several weeks prior to the accident.Ritter, who was supervising the operation at the time of the accident testified that he was knowledgeable about the defective switch.Moreover, meters had been installed proviously on the same switchboard by M & M despite their awareness of the defective switch.

Here, however, the plaintiff contends the Mall which maintained its own electrical switchboard did not discharge its legal duties since it was obligated to exercise the highest degree of care to Carson, notwithstanding, he was an employee of an independent contractor.The plaintiff relies principally on Orr v. U.S., 5th Cir.1973, 486 F.2d 270, which in applying Florida law held that because the United States owned power lines and poles and controlled the distribution of electrical current, it owed a nondelegable high degree of care to employees of an independent contractor working on these facilities.The court there emphasized the high degree of care was necessitated by the danger of high voltage electricity and held that United States liable for having allowed wires to remain in a dangerous condition and having made no attempt to warn the plaintiff employee of an independent contractor of the danger involved in working on the particular pole where he was injured.The plaintiff here analogizes Orr to the situation at the shopping mall and justifies this higher standard of care being imposed on the defendant on grounds that the Mall was in reality a redistribution center for electrical energy which it was supplying to its tenants.

If the standard advocated by the plaintiff is imposed upon the defendant, then, of course, the Mall could become liable also for any negligence of M & M as an independent contractor if M & M failed to make its employees aware of a known danger.More importantly, the defendant might then be held responsible for even permitting Carson to perform work on its switchboard without the necessary disconnect switch being operable.This is true because in that posture...