Marino v. Weiner, 81-345
| Decision Date | 23 June 1982 |
| Docket Number | No. 81-345,81-345 |
| Parties | John MARINO and Jerry Marino, d/b/a J. M. Investments, Appellants, v. Jeffrey WEINER and Disco 95, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Larry Klein and Jane Kreusler Walsh, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellants.
Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellee Disco 95, Inc.
Louis Kimler and Peter B. Weintraub of Shapiro, Leder, Kimler, Entin & Werksman, Deerfield Beach, for appellee Weiner.
OWEN, WILLIAM C., Jr., (Retired) Associate Judge.
The sole issue here is whether the trial court erred in granting a directed verdict against appellants on their third party claim for indemnification. We conclude that it did err, and reverse.
Appellants owned a warehouse which they had leased to appellee Disco 95, Inc. to use as a discotheque. Appellee Weiner, an employee of the lessee, sustained injury when he slipped and fell on a puddle of water on the discotheque's dance floor. 1 Weiner sued the lessors, alleging in substance that his injuries were the proximate result of the lessors' negligent failure to keep the roof in good repair. 2 In turn, lessors brought a third party complaint against the lessee, seeking both common law and contractual indemnification, the latter being predicated upon the following provision in the lease:
17. INDEMNITY: (a) Lessee shall indemnify Lessor and save harmless from suits, actions, damages, liability and expense in connection with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon, at or from the Demised Premises or the occupancy or use by Lessee of said premises or any part thereof, or occasioned wholly or in part by any act or ommission [sic] of Lessee, its agents, contractors, employees, servants, invitees, licenses or concessionaries, including the sidewalks and common areas and facilities within the building development;
* * *
* * *
(f) Lessee shall also pay all costs, expenses and reasonable attorney's fees that may be incurred or paid by Lessor in enforcing the terms of this lease. (e.s.)
The lease also contained two separate provisions relative to roof repair. Paragraph 12 obligated the lessors to keep the roof in good repair, provided the lessee gave the lessors seven days written notice of the needed repairs and provided the damage was not caused by lessee. Paragraph 8 included the following provision relative to roof repair:
Should Lessee install a cooling tower or other air conditioning equipment on the roof of the Demised Premises, Lessee shall assume primary responsibility for the maintenance and repair of the roof and such installation, operation and maintenance shall be made in such matter [sic] that the right of Lessor under any roofing bond then in force shall not be affected.
An air-conditioning unit, the cost of which was shared by lessors and lessee, was installed on the roof a week or two before Weiner slipped and fell. There was evidence from which the jury reasonably could have inferred that lessors and lessee were jointly responsible for roof repair necessitated by the installation of the air conditioning unit. There were also factual issues as to whether the roof had leaked prior to the installation of the air conditioning unit, of which lessors had actual (but not written) notice, and whether the water on which Weiner had slipped was from a roof leak caused by faulty installation of the air-conditioning unit, or from some other leak in the roof.
The court granted the lessee's motion for directed verdict, concluding that lessors were not entitled to either common law or contractual indemnification from the lessee. The jury found Weiner 85% at fault and lessors 15% at fault, upon which verdict judgment was entered. On post trial motions, the judgment and verdict were vacated and a new trial granted on Weiner's complaint against...
To continue reading
Request your trial
-
Camp, Dresser & McKee, Inc. v. Paul N. Howard Co.
...wrongful conduct. See Gulfstream Park Racing Ass'n v. Gold Spur Stable, Inc., 820 So.2d 957 (Fla. 4th DCA 2002)(citing Marino v. Weiner, 415 So.2d 149 (Fla. 4th DCA 1982), Leonard L. Farber Co. v. Jaksch, 335 So.2d 847 (Fla. 4th DCA 1976)), review denied, 842 So.2d 845 (Fla.2003). Certainly......
-
GULFSTREAM PARK RACING ASSOCIATION, INC. v. Gold Spur Stable, Inc.
...intent to indemnify lessor in cases where the lessee and lessor are found to be jointly at fault"). Similarly, in Marino v. Weiner, 415 So.2d 149 (Fla. 4th DCA 1982), we found that the phrase "occasioned wholly or in part by an act or omission of [l]essee ..." manifested the unequivocal int......
-
Mitchell Maintenance Systems, a Div. of Lift-A-Loft Corp. v. State Dept. of Transp.
...was granted indemnity even though the injury in question was caused in part by the lessor's own negligence. See also Marino v. Weiner, 415 So.2d 149 (Fla. 4th DCA 1982). In our view the contractual provision here is clear and unequivocal and similar to the provisions upheld in Farber and Ma......
-
Tsafatinos v. Family Dollar Stores of Fla., Inc.
...or technically liable to the Sugases because of Family Dollar's negligence or fault. See Welch, 818 So.2d at 649;Marino v. Weiner, 415 So.2d 149, 150–51 (Fla. 4th DCA 1982). Mr. Tsafatinos, as landlord and property owner, is not liable for injuries that result from dangerous conditions on t......