Maldonado v. Jack M. Berry Grove Corp.

• Decision Date: 22 September 1977
• Docket Number: No. 48560,48560
• Citation: 351 So.2d 967
• Parties: David MALDONADO et al., Petitioners, v. JACK M. BERRY GROVE CORP. et al., Respondents.
• Court: Florida Supreme Court

Page 967

351 So.2d 967

David MALDONADO et al., Petitioners, v. JACK M. BERRY GROVE CORP. et al., Respondents.

No. 48560.

Supreme Court of Florida.

Sept. 22, 1977.

Rehearing Denied Dec. 6, 1977.

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

James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondents.

HATCHETT, Justice.

By petition for writ of certiorari, we review a decision of the Second District Court of Appeal, reported at 322 So.2d 608. That decision directly conflicts with Hix v. Billen, 284 So.2d 209 (Fla.1973). We have jurisdiction pursuant to Article V, Section 3(b)(3). We reverse.

Petitioner, a three-year-old child, was taken by his parents to the place of their employment, a citrus grove owned and operated by the respondent. The child was put into a large empty tub while his parents filled other tubs with fruit. According to the usual procedure, after the tubs were filled, they were emptied into a truck by means of a mechanical hydraulic lifting device known as a "goat." The driver of the "goat," operating the vehicle in reverse gear without a rear view mirror, backed over the child, who had climbed out of the tub, and severed his spinal cord.

The operator of the "goat" was a member of a fruit picking crew which had been hired by the Jack M. Berry Grove Corporation to perform fruit picking and related chores. Although the Berry Corporation was aware of the fact that its employees brought their minor children upon the premises, they had taken no precautions to protect the safety of the children.

The landowner attempted to discourage pickers from bringing their children into the groves, but there is evidence from which a jury might determine that such efforts were insufficient and unreasonable in light of the dangerous situation created by the presence of small children in the work areas. ¹

The trial court granted a motion for summary judgment on behalf of Jack M. Berry Grove Corporation and its insurer, relying upon the decision of this Court in Wood v. Camp, 284 So.2d 691 (Fla.1973). The Second District Court of Appeal affirmed, determining that the injured child in the present case was an "uninvited licensee," as defined in the Wood decision. The District Court noted that a landowner owes a licensee a duty to refrain from wanton negligence or willful misconduct which might cause injury, to refrain from intentionally exposing the licensee to danger, and to warn of any dangerous latent defect or condition known to the landowner, but not open to ordinary observation to the licensee. There was no showing that Berry Grove failed to carry out this duty. However, Wood v. Camp, supra, involved negligence based upon a negligent condition of the premises, and the duty of the landowner in that regard. The present case involves alleged personal negligence on the part of the landowner. In Hix v. Billen, supra, 284 So.2d at 210, this Court held:

Where the presence of the injured person is known to the landowner and the injury is caused by the active conduct or affirmative negligence of the landowner as distinguished from the condition of the premises, ordinary negligence is the measure of care as in other negligence situations. (Emphasis supplied)

Only when liability is predicated upon an alleged defective or dangerous condition of the premises is the injured person's status relevant. Wood controls the liability of a landowner for injuries arising out of a defect in the premises, whereas the standard of ordinary negligence set forth in Hix governs the liability of a landowner to a person injured on his property unrelated to any defective condition of the premises. ²

Here the grove itself was not dangerous. However, the operation of the "goat" among children present in the grove created a dangerous situation. ³ In the presence of a known danger, the fact that a dangerous condition was created or partially caused by an independent contractor will not shield an employer/landowner from legal liability, if the employer/landowner was negligent in failing to take sufficient precautions to alleviate the dangerous situation. ⁴

Therefore, since there exists evidence upon which a jury might find Berry Grove negligent, resulting in the present injury, it was improper to have granted summary judgment in favor of Berry Grove. The District Court's opinion is quashed, and the cause remanded for a jury trial.

It is so ordered.

ADKINS, BOYD and KARL, JJ., concur.

SUNDBERG, J., dissents with an opinion.

OVERTON, C. J., and ENGLAND, J., dissent and concur with SUNDBERG, J.

SUNDBERG, Justice, dissenting.

I must respectfully dissent from the majority's conclusion that this Court has jurisdiction in the instant case. It is asserted that the decision under review conflicts with Hix v. Billen, 284 So.2d 209 (Fla.1973), thereby vesting jurisdiction in this Court under Article V, Section 3(b)(3), Florida Constitution. Although the District Court of Appeal concluded that this case was controlled by Wood v. Camp, 284 So.2d 691 (Fla.1973), this Court maintains that the status of the child on the premises of the appellee is immaterial in determining the duty owed by the appellee to the child. This is so because "the standard of ordinary negligence set forth in Hix governs the liability of a landowner to a person injured on his property unrelated to any defective condition of the premises." Conceding that Hix is an exception to the rule respecting the duty of the owner of land to persons who enter thereon, nonetheless the facts of this case are not like those in Hix in a very critical particular and, hence, there is no conflict in the decisions.

In Hix, the defendant was guilty of active, personal negligence. As pointed out in the opinion:

There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises. (Emphasis supplied) Hix v. Billen, 284 So.2d 209, 210.

In this case, appellee's liability, if any, is vicarious arising as it does out of the conduct of an employee of an independent contractor.

Although the District Court of Appeal expressly held that this case does not come within the principle "that where an employer gains knowledge of a dangerous situation created by an independent contractor, it may incur liability through its failure to halt the operation or otherwise remove the danger" the majority of this Court upon review of the same record and citation of the same authorities reaches the opposite conclusion. ¹ Apart from the question of the propriety of our reweighing the evidence in this regard, I suggest that even if this Court's conclusion be correct, still there is no conflict either with the cases cited to support this principle or with Hix, supra. In neither Maule Industries v. Messana, ² nor Peairs v. Florida Publishing Co. ³ was the dangerous situation created on the land of the defendant. Consequently, those cases cannot stand for the proposition that a landowner owes a higher duty of care to an uninvited licensee where...