Marks v. Delcastillo

• Decision Date: 05 August 1980
• Docket Number: No. 78-1777,78-1777
• Citation: 386 So.2d 1259
• Parties: Stanley MARKS, Herman Marks, Paul Marks, and Eugene D. Marks, d/b/a Marks Brothers Company, a partnership, and Liberty Mutual Insurance Company, Appellants, v. Martin Jose DELCASTILLO, as Personal Representative of the Estate of MartinAlfredo Delcastillo, a deceased minor, and Jorge Luis Delcastillo, a deceasedminor, Appellee.
• Court: Florida District Court of Appeals

Page 1259

386 So.2d 1259

Stanley MARKS, Herman Marks, Paul Marks, and Eugene D. Marks, d/b/a Marks Brothers Company, a partnership, and Liberty Mutual Insurance Company, Appellants, v. Martin Jose DELCASTILLO, as Personal Representative of the Estate of MartinAlfredo Delcastillo, a deceased minor, and Jorge Luis Delcastillo, a deceasedminor, Appellee.

No. 78-1777.

District Court of Appeal of Florida, Third District.

Aug. 5, 1980.

Rehearing Denied Sept. 18, 1980.

Magill, Sevier & Reid, Miami, Pattillo, McKay & McKeever and L. Edward McClellan, Jr., Ocala, for appellants.

Spence, Payne, Masington & Grossman, Podhurst, Orseck & Parks and Joel D. Eaton and Walter H. Beckham, Jr., Miami, for appellee.

Before SCHWARTZ and PEARSON, DANIEL, JJ., and VANN, HAROLD (Ret.), Associate Judge.

SCHWARTZ, Judge.

On August 26, 1972, a trailer-"magazine" containing over ten tons of dynamite exploded with monumental force in a remote area of northwest Dade County. The bodies of three persons on the scene were literally obliterated by the blast. Two of them, Martin and Jorge Delcastillo, 18 and 14 years old respectively, were the children of Martin and Ada Delcastillo. As the personal representative of their estates, Mr. Delcastillo brought wrongful death actions against the Marks Brothers Company, a partnership engaged in the construction business, which owned the "magazine" and its contents and was in possession by permission of the owner of the property on which it was located. After a lengthy trial, the jury found each boy 30 percent, and Marks Brothers 70 percent negligent in the causation of the accident. In the separate verdicts required by Section 768.22 Florida Statutes (1977), it awarded damages, as reduced by the 30 percent comparative negligence, of $980,000 to the mother and father $245,000 to each parent for the death of each child and a total of $206,500 to the decedents' estates, $105,000 to Jorge's and $101,500 to Martin's. Marks Brothers has appealed from the judgment entered in accordance with the verdicts. We affirm the parents' awards and reverse those to the estates.

I

The appellants' first and major contention is that they were entitled to a directed verdict in their favor below. We find to the contrary. Viewed, as required, in the light most favorable to the appellee, ¹ the record amply supports the determination that Marks Brothers breached the duty it owed the Delcastillo boys, as licensees on land it controlled, to warn them of a "condition known . . . to be dangerous when such danger is not open to ordinary observation" ² and was therefore liable for their deaths.

So considered, the record shows as follows. The dynamite trailer, which was used in connection with blasting operations conducted by Marks Brothers in the vicinity, was located on an otherwise vacant tract of land near the eastern edge of the Everglades, bounded on the east by N.W. 117th Avenue and on the south by a dirt extension of N.W. 41st Street. A dirt road running westerly from N.W. 117th Avenue provided access to the interior portion of the parcel where the trailer-magazine had been placed. While a steel cable, stretched between two posts across the road, served to keep unauthorized vehicles out of the area, persons on foot had easy access to the trailer and the entire parcel, either down the road itself, or by gaining entry from any other direction by climbing an embankment and walking through marshland.

There was overwhelming evidence that, for a long time prior to the tragedy and to the actual knowledge of the defendant-partnership and its employees, many persons had taken advantage of the ready availability of the parcel. Scattered around the perimeter of the property, at points no more than a few hundred yards from the dynamite, were piles of trash, discarded automobiles and appliances, old tires and other assorted junk. The entire area, in short, had taken on the character of a local dump. Portentously, it had also become a neighborhood shooting gallery. As Marks Brothers was specifically aware, those who frequented the parcel (including, on at least two occasions, Martin Delcastillo) had regularly used it for target practice. Indeed, the sides of the trailer itself were pockmarked by bullet holes. ³

On the day of the accident the Delcastillo boys, after telling their parents where and why they were going, went to the area with an older companion for target practice. They carried a .22 rifle and a 12 gauge shotgun. Within a half hour after they were last seen alive, the trailer exploded with such awful force that it left a crater 65 feet wide and 15 feet deep as virtually the only evidence of its previous existence. The trailer had had an aluminum skin surface and its interior was lined with four inch thick oak beams. The rear and side doors, which were covered by metal plate, were permanently closed; the front door was fitted with a theft-resistant lock and was covered with one-quarter inch steel. The entire facility rested on tires attached to steel axles, imbedded in the ground, upon which it had been pulled by a tractor onto the area. After the explosion, only tiny bits of metal and splinters of wood remained of the trailer; the tires and steel axles had entirely disappeared. The three human beings were so totally disintegrated that their deaths could be established only circumstantially. It was inferred from the extent of the destruction of their bodies that when the trailer exploded they were either actually inside it, as the defendants' experts testified, or no more than 30 feet away.

The devastation wrought by the blast also made it impossible to establish the circumstances of the manner which brought it about. Both sides presented expert opinions which in each case essentially amounted to no more than informed speculation on the issue. It was generally agreed, however, that since the trailer could not have been penetrated simply by a single stray or deliberately-aimed bullet, the explosion must have occurred either after the magazine door had been opened in some manner or by the detonation of the entire trailer from an outside source. The theories as to how either such event might have taken place included the possibility that the three boys had deliberately broken into the trailer in order to steal the dynamite a theory contrary to all the known facts about the decedents and which would have required the use of specialized equipment which they did not possess. Other, more likely scenarios included, inter alia, (a) the setting off of a loose stick of dynamite outside the trailer, ⁴ either by one of the boys' firing at it or otherwise; and (b) an attempted burglary of the trailer by others ⁵ in which the burglars set off the blast or in which the front door was left open and then accidentally fired into.

It is as unnecessary and inappropriate, however, as it is impossible to pinpoint the precise sequence of events which occurred on that day. It is certain that the immense capacity for harm presented by 21,000 pounds of dynamite came into fruition and that three persons who were very near were killed as a result. Under these circumstances, we think what was said nearly a century ago in Tissue v. Baltimore & O.R. Co., 112 Pa. 91, 3 A. 667, 668-69 (1886) particularly appropriate:

As it is impossible to tell what was the immediate cause of the explosion, it would be by no means fair to charge it to the negligence of any one.

The act of putting the magazine where it was may have been prudent, or at least not unreasonably imprudent, and the explosion may have been the result of an accident which no ordinary human foresight could provide against; hence one for which no one can be held responsible. But, however this may be, the matter is, under all the evidence, for a jury, and to a jury it must be referred.

See also the factually remarkably similar case of St. Joseph Lead Co. v. Prather, 238 F.2d 301 (8th Cir. 1956).

Of course, in this as in every case, a jury is permitted to impose liability only within the ambit of the law; there must be evidence of a breach of a duty owed by the defendants to persons in the status of the plaintiff's decedents. Such evidence exists in abundance in this record. In view of Marks Brothers' knowledge of the fact that many persons had used the property in question over a lengthy period of time, it is clear, as was held in Libby v. West Coast Rock Co., Inc., 308 So.2d 602 (Fla.2d DCA 1975), cert. denied, 325 So.2d 6 (Fla.1975), and Seaboard Air Line R. Co. v. Branham, 99 So.2d 621 (Fla.3d DCA 1958), cert. discharged 104 So.2d 356 (Fla.1958), that the decedents were implied or uninvited licensees on the premises. See Morris v. Florida C.&P.R. Co., 43 Fla. 10, 29 So. 541 (1901); Wytupeck v. City of Camden, 25 N.J. 450, 136 A.2d 887 (1957) and cases cited; Davis v. Chicago & N.W.R. Co., 58 Wis. 646, 17 N.W. 406 (1883); W. Prosser, Law of Torts § 58, at 361 n.98 (4th Ed. 1971); 62 Am.Jur.2d Premises Liability § 51 (1972); see generally Wood v. Camp, 284 So.2d 691 (Fla.1973). The Libby case also elucidates, in the essentially interchangeable terms of both the Florida and the Restatement formulations of the rule, the duty owed by a landowner ⁶ to such persons:

The duty owed a licensee is to refrain from wanton negligence or willful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146; McNulty v. Hurley, Fla.1957, 97 So.2d 185.

Our holding is consistent with § 342 of the Restatement of Torts 2d, which states:

§ 342. Dangerous Conditions Known to Possessor

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize...