Litton v. Saf-T-Green of Orlando, Inc.

• Decision Date: 13 November 1992
• Docket Number: No. 92-245,SAF-T-GREEN,92-245
• Citation: 608 So.2d 908
• Parties: 17 Fla. L. Week. D2546 Richard C. LITTON and Cindy Litton, his wife, Appellants, v.OF ORLANDO, INC., and Frank Stillman d/b/a Stillman Painting, Appellees.
• Court: Florida District Court of Appeals

Page 908

608 So.2d 908

17 Fla. L. Week. D2546

Richard C. LITTON and Cindy Litton, his wife, Appellants, v. SAF-T-GREEN OF ORLANDO, INC., and Frank Stillman d/b/a Stillman Painting, Appellees.

No. 92-245.

District Court of Appeal of Florida,

Fifth

District.

Nov. 13, 1992.

Rehearing Denied Dec. 14, 1992.

Jackson O. Brownlee and Leon G. Jacobs of Brownlee, Hoffman & Jacobs, P.A., Orlando, for appellants.

Larry M. Roth of Roth, Edwards and Smith, P.A., Orlando, for appellee Saf-T-Green of Orlando, Inc.

No Appearance for appellee, Frank Stillman d/b/a Stillman Painting.

COBB, Judge.

The issue on appeal is whether there was evidence before the trial court which, given the requisite inferences, precludes a summary judgment for the defendant, Saf-T-Green of Orlando, Inc. See Landers v. Milton, 370 So.2d 368 (Fla.1979). We find there was and reverse.

The plaintiff, Richard Litton, is an employee of Frank Stillman, d/b/a Stillman Painting. Stillman Painting was a subcontractor on a renovation job on the Leesburg City Hall building. In order to facilitate the job of pressure washing the building, Stillman Painting leased a self-propelled, motorized aerial platform (sometimes referred to as a "boom") from the defendant Saf-T-Green. Litton was a passenger on the aerial platform which was being operated by Stillman when the unit rolled down a grade and struck a post, allegedly resulting in injuries to Litton.

Litton and his wife sued Saf-T-Green and its employer. Worker's compensation benefits, although not provided by the employer, were provided by the general contractor's carrier. The employer's motion to dismiss was granted and that ruling is not involved in this appeal. ¹

Litton's action against Saf-T-Green alleged that the unit was defective and/or improperly maintained and that Saf-T-Green was negligent in: (1) failing to keep the unit in proper repair; (2) providing the employer and Litton with a defective unit; and (3) failing to have warning signs on the unit indicating the proper method of operation.

Saf-T-Green raised as an affirmative defense that it enjoyed immunity from suit under section 440.11, Florida Statutes and then moved for partial summary judgment asserting worker's compensation immunity. An affidavit from Saf-T-Green's general manager averred that it had in fact leased the unit to Stillman Painting but that Saf-T-Green did not design or manufacture the unit nor did any of its employees control or operate the unit. A copy of the written lease between Saf-T-Green and Stillman Painting, the employer, was attached to the affidavit. A manual involving the unit was also attached. The unit, which is capable of extending approximately 40 feet high, had an occupant bucket which contained operating controls. Stillman admitted by way of deposition that he was operating the bucket at the time of the accident.

According to Stillman, while he and Litton were in the bucket, he attempted to stop the bucket but the unit would not stop. Stillman stated:

I put it [the unit] in the forward position, moved a couple of feet, put it back into the neutral position, and the machine did not stop. The brakes locked, the tires locked, and it slid a few feet. As it was sliding, I knew at that point, because I had driven them before, we had used it all week long, that there was a problem. I believe that I quick, tried to put it back into reverse. It just happened so fast. It did not work, and we slid into a fence post.

Stillman estimated the boom was travelling approximately 1-3 miles per hour when it struck the post. The boom was not damaged and the fence post suffered little damage.

The trial court, following a hearing, entered summary final judgment for Saf-T-Green based on worker's compensation immunity. Litton argues that he alleged in his complaint and adduced evidence of active negligence on the part of Saf-T-Green and that worker's compensation law does not provide a lessor/lender with immunity from suit in such circumstances.

The preeminent case involving worker's compensation immunity for a lessor/lender of machinery is Scott & Jobalia Constr. Co., Inc. v. Halifax Paving, Inc., 538 So.2d 76 (Fla. 5th DCA 1989), approved, 565 So.2d 1346 (Fla.1990). In that case, the lessor/lender of a crane, Halifax, was sued after one of the lessee/borrower Scott & Jobalia's employees, Grier, was injured when a pipe fell from a sling attached to the crane. ² Halifax settled with the injured employee and then sued Scott & Jobalia (S & J) for common law indemnity.

On appeal, this court held that the lessor/lender was not in fact legally liable to the injured employee and thus the lessor/lender could not recover in an indemnity action against the employer for amounts it had paid to the injured employee. In approving this court's conclusion, the supreme court explained:

This court established in Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966), that a worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker's compensation statutes. The central rationale of Smith is that leased equipment used on a job site in effect has become the working tool of the employer. Id. at 424. Thus the exclusivity principle of worker's compensation comes to bear. See Sec. 440.11, Fla.Stat. (1987).

We see no reason why a different result should obtain in the present case. The only relevant differences between this case and Smith are that the dangerous instrumentality in this instance was informally borrowed, not leased, and the operator of this instrumentality was a borrowed servant, not a fellow servant. We agree with the Fifth District that these differences are not sufficient to justify a different result than that in Smith. Accord Morales v. Ryder Truck Rental, 559 So.2d 317 (Fla. 3d DCA 1990).

Indeed, the central policies of worker's compensation are to provide employees with a swift and adequate means of compensation for injury, and to insulate employers from potentially...