McCall v. Alabama Bruno's, Inc.

• Decision Date: 29 June 1994
• Docket Number: No. 93-936,93-936
• Citation: 647 So.2d 175
• Parties: 19 Fla. L. Weekly D1397 Ruth McCALL, Appellant, v. ALABAMA BRUNO'S, INC., Appellee.
• Court: Florida District Court of Appeals

Page 175

647 So.2d 175

19 Fla. L. Weekly D1397

Ruth McCALL, Appellant, v. ALABAMA BRUNO'S, INC., Appellee.

No. 93-936.

District Court of Appeal of Florida First District.

June 29, 1994.

Michel L. Stone, of Stone & Sutton, and Marvin A. Urquhart, Jr., Panama City, for appellant.

Thomas R. Jenkins, of Bozeman, Jenkins & Matthews, Pensacola, for appellee.

BARFIELD, Judge.

We find that summary judgment for the defendant grocery store owner, Alabama Bruno's, Inc., was inappropriate in this negligence action arising out of a slip and fall accident, because the store owner was not entitled to judgment in its favor as a matter of law.

Ruth McCall fell in the area between the aisles and the check-out lanes, where the floor had recently been cleaned by a floor cleaning service, United Maintenance (UM), using a machine that used water to scrub the floor. It is undisputed that the store was open to the public 24 hours a day every day, that UM cleaned the floors every night from about 10:00 PM to about 6:00 AM, that the cleaning machine was still operating when the accident occurred at about 6:30 AM, that UM was supposed to place "wet floor" warning signs in the area it was cleaning, and that there were no warning signs in the area immediately after the fall (from which it may reasonably be inferred that there were no warning signs in the area at the time McCall fell). The depositions indicated that there was a puddle of dirty water on the floor where McCall fell, and that store personnel knew that the cleaning machine sometimes left water behind and had several times had trouble getting UM to keep "wet floor" signs down.

The complaint alleged that the store owner failed to maintain the premises in a safe condition, failed to make the premises safe when it knew or should have known of the hazard, and failed to warn McCall of a dangerous condition of which it was aware or should have been aware. The store owner asserted, inter alia, that it was not in actual possession and control of the portion of the premises where the accident occurred, and that McCall's injuries resulted from the acts of a third party independent contractor for which it had no liability. The trial court found that "the general rules of slip and fall cases apply" and that under Schaap v. Publix Supermarkets, Inc., 579 So.2d 831 (Fla. 1st 1991), ¹ "the plaintiff must prove that the defendant had actual or constructive notice of the condition." It noted that motions for summary judgment should be carefully scrutinized, particularly in personal injury cases, citing Brooks v. Phillip Watts Enterprises, Inc., 560 So.2d 339 (Fla. 1st DCA), rev. denied, Phillip Watts Enterprises, Inc. v. Brooks, 567 So.2d 435 (Fla.1990), ² but found that there were no material facts in dispute and that the store owner was entitled to judgment as a matter of law, citing Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980). ³

Resolution of this case turns on which rules of law apply. Florida follows the general rule that the employer of an independent contractor is not liable for the contractor's negligence because the employer has no control over the manner in which the work is done, but it also recognizes exceptions to the general rule which may generally be divided into three categories: 1) negligence in selecting, instructing, or supervising the contractor; 2) non-delegable duties arising out of some relation toward the public or the particular plaintiff; and 3) work which is specially, peculiarly, or "inherently" dangerous. ⁴

When the owner of a store employs an independent contractor to do work on the premises while they are open to the public and the work involves an unreasonable risk of harm to members of the public unless reasonable care is exercised in supervising the activities of the contractor, the store owner has a duty to supervise the equipment and methods of the contractor. The store owner is therefore liable for physical harm caused to a member of the public by its failure to use reasonable care to protect the public against unreasonably dangerous conditions created by the contractor, if the store owner had a reasonable opportunity to ascertain the improper equipment or methods of the contractor and to secure the substitution of safe equipment or methods. ⁵

Also, when a store owner hires an independent contractor to do work which it "should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken," it has a duty to provide for such precautions in the contract or otherwise. ⁶ And even if the store owner has provided for such precautions, it remains subject to liability for physical harm caused to others by the contractor's failure to exercise reasonable care to take such precautions. ⁷ "Peculiar" does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk, but instead refers to a special, recognizable danger arising out of the work itself. ⁸ In order for the vicarious liability rules to apply,

... it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk to those in the vicinity. It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A "peculiar risk" is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions....

Restatement (Second) of Torts Sec. 416 cmt. d. The peculiar risk need not be one which will necessarily and inevitably arise in the course of the work, no matter how it is done, so long as it is a risk which the store owner should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which it knows that the contractor will adopt. ⁹

The Restatement states that the rules imposing vicarious liability on employers for the acts of independent contractors arise "in situations where, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor" and that it is commonly stated that "the employer is under a duty which he is not free to delegate to the contractor." ¹⁰ Such nondelegable duties have been found under Florida law to be imposed by statute, contract, or common law, ¹¹ and to arise out of "inherently dangerous activity" or activity involving "inherently dangerous elements," or out of the creation of an "inherently dangerous condition." ¹²

There is a close relation between the above stated exception and the rule stated in section 427 of the Restatement:

One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.

The comment to section 416 indicates that the two rules "have been applied more or less interchangeably in the same types of cases, and frequently have been stated in the same opinion as the same rule, or as different phases of the same rule." It explains that the rule...