Mai Kai, Inc. v. Colucci, s. 35437

• Decision Date: 29 November 1967
• Docket Number: 35431,Nos. 35437,s. 35437
• Citation: 205 So.2d 291
• Parties: MAI KAI, INC., a Florida corporation licensed to do business in the State of Florida, and Richard C. Reilly, Petitioners, v. Mary COLUCCI and her husband, Bart Colucci, and Fleming & Smith, Inc., a Florida corporation, Respondents. Richard C. REILLY, Petitioner, v. Mary COLUCCI and her husband, Bart Colucci, Respondents.
• Court: Florida Supreme Court

Page 291

205 So.2d 291

MAI KAI, INC., a Florida corporation licensed to do business in the State of Florida, and Richard C. Reilly, Petitioners, v. Mary COLUCCI and her husband, Bart Colucci, and Fleming & Smith, Inc., a Florida corporation, Respondents.

Richard C. REILLY, Petitioner, v. Mary COLUCCI and her husband, Bart Colucci, Respondents.

Nos. 35437, 35431.

Supreme Court of Florida.

Nov. 29, 1967.

Rehearing Denied Jan. 19, 1968.

Fleming, O'Bryan & Fleming and Norman C. Roettger, Jr., Fort Lauderdale, for Mai Kai, Inc.

Carey, Dwyer, Austin, Cole & Stephens, Miami, and Burl F. George, Fort Lauderdale, for Richard C. Reilly.

Joe Norman Unger, Miami, for respondents.

DREW, Justice.

Certiorari has issued in this cause on the ground of conflict between the decision of the district court ¹ which affirmed a judgment against the petitioners, a corporate restaurant owner and supervising architect employed by it, and the decision of this Court in Slavin v. Kay ² holding such an owner has no liability for injury caused by defective work of a contractor which is 'not discoverable by inspection.' ³ There was no appeal in the case at bar by the third party contractor, against whom a verdict and judgment was also entered.

The opinion of the district court recites the evidence showing that the respondent Colucci was injured in petitioner Mai Kai's restaurant when a suspended metal counterweight fell from a ceiling fan because of defective welding by the metal fabricator contractor who installed the device. The factual situation was complicated by an extension of the counterweight by the contractor to correct a noise in operation immediately after installation, increasing stress on the weld. The evidence appears undisputed, however, to the effect that the imperfection was not apparent on inspection and that in the absence of this defective workmanship such a weld would have sustained the additional weight.

Liability of the petitioner Mai Kai, Inc., was predicated simply on its 'nondelegable duty to keep its premises reasonably safe for invited use.' In our examination of the authorities relied on to sustain this decision, we find no precedent in our cases for application of that principle to impose liability without fault, or vicarious liability for the negligence of a third party contractor, in the circumstances of this case. ⁴ With specific reference to the duty to keep premises in safe condition for business invitees (injured by an improperly attached roof), this Court has said:

'We unequivocally held in Hall v. Holland (47 So.2d 889), that it was the duty of the defendant to use Reasonable care in maintaining the premises in a reasonably safe condition and to have given the plaintiff timely notice or warning of latent and concealed perils 'known to the defendant, or which by the exercise of due care should have been known to him * * *' This is an expression of the great weight of authority.' (Emphasis supplied) ⁵

Those cases stating exceptions to this doctrine ⁶ do not, in any instance brought to our attention, involve latent defects or conditions which, as in the present situation, could not have been discovered by Reasonable care, whatever conduct that standard may require in a particular case. The duty to exercise that reasonable care is nondelegable in the sense that a contract for its performance by another will not necessarily eliminate an owner's responsibility. The duty, however, remains one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor's negligence. There is not, in our opinion, any inconsistency between this rule of nondelegability and the decision in the Slavin case, supra, requiring that liability for the independent negligence of a third party contractor be based on acceptance of defective work under circumstances imputing notice or a duty to correct. Upon this reasoning, the uncontroverted evidence in the present case required that the motion for directed verdict by the defendant Mai Kai, Inc., be granted.

It will be apparent from a consideration of the rationale of the district court opinion in this case that application of the rule there enunciated, i.e. liability based on imputed negligence, will result in one standard of liability for a businessman who employs a contractor to construct the building in which he conducts his business, and another standard of liability (or nonliability) for one who purchases a building in which to do business, in which case any negligence of the builder cannot, of course, be imputed to a purchaser. Such a result is patently irrational and would, we think, add to the existing body of tort law a doctrine both novel and undesirable.

We conclude also that on the record evidence relative to the material issues the judgment against the petitioner Reilly cannot be sustained. The opinion testimony cited below, equivocal at best to the effect that the defective weld would not have broken without the additional weight, has no real bearing on the question of reasonable care in the exercise of supervisory duties by the architect. His knowledge of increased stress could not give rise even to a duty to warn in the face of the conceded fact that a proper weld would have sustained the weight, and that he had no notice or knowledge of the imperfection. In terms of proximate cause expressed in the dissenting opinion below, no conduct of petitioner Reilly in these circumstances contributed to the ultimate injury and his motion for directed verdict should have been granted.

The judgment of the appellate court is accordingly quashed and the cause remanded with directions for further proceedings in accordance herewith.

CALDWELL, C.J., and THOMAS and THORNAL, JJ., concur.

ROBERTS, J., concurs specially with opinion.

ERVIN, J., concurs in part and dissents in part with opinion.

WHITE, Jos. S., Circuit Judge (Retired), concurs in part and dissents in part with opinion.

ROBERTS, Justice (concurring specially):

I concur in the judgment for the reasons stated in Hall v. Holland, 47 So.2d 889 and because the doctrine of implied warranty is not raised.

ERVIN, Justice (concurring in part and dissenting in part):

I agree with the dissenting opinion of Circuit Judge WHITE that the architect is not liable but concur in the opinion of the District Court that the restaurant owner is liable.

WHITE, JOS. S., Circuit Judge, Retired (concurring in part and dissenting in part):

I am in full accord with the reversal of the judgment against the architect, but find myself unable to agree with the reversal of the judgment against the restaurant owner. The latter result is reached because of what is said to be a conflict in the decision of the District Court of Appeal in this case (See Mai Kai, Inc. v. Colucci, et al., Fla.App.1966, 186 So.2d 798) and the decision of this Court in Slavin v. Kay, Fla.1959, 108 So.2d 462. It is my opinion that there is no such conflict and that the decision of the District Court of Appeal regarding...