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

• Court: United States State Supreme Court of Florida
• Citation: 205 So.2d 291
• Docket Number: 35431,Nos. 35437,s. 35437
• 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.
• Decision Date: 29 November 1967

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.

Page 292

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

Page 293

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...