Metsker v. Carefree/Scott Fetzer Co.

• Decision Date: 27 June 2012
• Docket Number: No. 2D10–5867.,2D10–5867.
• Citation: 90 So.3d 973
• Parties: Ethel METSKER, Appellant, v. CAREFREE/SCOTT FETZER COMPANY, d/b/a Carefree of Colorado, Appellee.
• Court: Florida District Court of Appeals

90 So.3d 973

Ethel METSKER, Appellant,

v.CAREFREE/SCOTT FETZER COMPANY, d/b/a Carefree of Colorado, Appellee.

No. 2D10–5867.

District Court of Appeal of Florida, Second District.

June 27, 2012.

Kimberly C. Morris of Greenfelder, Mander, Murphy, Dwyer & Morris, Dade City, for Appellant.

Daniel J. Fleming and Philip C. Mokris of Melkus, Fleming & Gutierrez, P.L., Tampa, for Appellee.

WALLACE, Judge.

In a premises liability action brought by Ethel Metsker, the circuit court entered a final summary judgment in favor of Carefree/Scott Fetzer Company, d/b/a Carefree of Colorado (Carefree). Ms. Metsker appeals. The circuit court ruled that Carefree did not owe a duty of care to Ms. Metsker because the undisputed facts established that Carefree's sales representative, an independent contractor, operated the premises where Ms. Metsker was injured. Because Carefree failed to establish the absence of a genuine issue of material fact concerning its control of the subject premises, we reverse. We also hold that genuine issues of material fact remain concerning whether Carefree's sales representative was in fact an independent contractor or Carefree's agent or employee.

I. THE FACTS

Ms. Metsker was injured on January 20, 2008, during her visit to the 2008 Florida RV SuperShow (the RV SuperShow), which was held at the Florida State Fairgrounds in Tampa.¹ The RV SuperShow is an annual event that is open to the public. The RV SuperShow features displays of recreational vehicles and related accessories and services, together with entertainment, food, seminars, and general information about recreational vehicles and related products and services. Patrons must pay a fee for parking and an admission fee to gain entrance to the RV SuperShow grounds.

The RV SuperShow is organized, sponsored, and managed by the Florida RV Trade Association, Inc. (the FRVTA). Carefree manufactures and sells RV awning and accessory products. In May 2007, Carefree contracted with the FRVTA for three display booths at the 2008 RV SuperShow. The “Booth Exhibitor/Vendor Space Contract” (the Booth Contract) was signed by David Jones, an employee of Dealer Resources Group (DRG), on behalf of Carefree. DRG is the company that Carefree contends was an independent contractor and not an employee or agent of Carefree.

In pertinent part, the Booth Contract prohibited Carefree from assigning or subletting its assigned booths to others. The Booth Contract also required Carefree to protect and indemnify the FRVTA against any and all losses and claims arising out of or related to any accident or other occurrence in connection with Carefree's participation in the show. Together with the indemnity provision, the Booth Contract required Carefree to provide the FRVTA with a certificate of comprehensive general liability and automobile insurance with a limit not less than one million dollars, naming the FRVTA as an additional insured. Finally, the Booth Contract required Carefree “to keep [its] exhibits open and fully manned with proper representatives during scheduled hours on public days.”

Carefree contracted with others to provide sales services for its products. One of the entities with which Carefree contracted for sales services was DRG. In 2007, Carefree and DRG had executed a “Sales Representative Agreement” (the Sales Rep Agreement) in which Carefree appointed DRG as its sales representative for certain territories, including Florida. The Sales Rep Agreement expressly provided that DRG was an independent contractor and not an agent or employee of Carefree.

Carefree arranged for DRG to set up and staff its booth ² at the RV SuperShow. However, DRG was not Carefree's only representative present at the RV SuperShow. Carefree had at least two other representatives—Wally Ford and Jerry Burhans—in the booth on its behalf at the RV SuperShow. ³ Neither Mr. Ford nor Mr. Burhans was associated with DRG. Carefree claimed that Mr. Ford and Mr. Burhans were also independent contractors.

A metal pole fell and struck Ms. Metsker while she was seated in a booth next to the Carefree booth. Details are sketchy concerning the chain of events leading to the fall of the pole on Ms. Metsker. Carefree suggested in its motion for summary judgment “that the metal pole was an isolated center arm rafter [that was] placed upon a back wall grid” display by David Jones. Later, a person or persons unknown moved the center arm rafter from the back wall and placed it upright in the booth. Next, the same person or another person dislodged the center arm rafter from its precarious position in the booth, causing it to fall and hit Ms. Metsker on the head. She sustained serious injuries as a result of the unexpected blow. Later, DRG claimed that Wally Ford was in control of the booth when the incident occurred.

II. THE PROCEDURAL BACKGROUND

Ms. Metsker filed an action against Carefree and the FRVTA for negligence. In her complaint, Ms. Metsker alleged that “[e]mployees, agents or persons holding themselves out as the apparent agents of Carefree of Colorado constructed, operated and maintained a display booth on behalf of Carefree of Colorado at the 2008 Florida RV SuperShow” and that Carefree was “vicariously responsible for the actions of its employees, agents or apparent agents.”

In Carefree's answer to the complaint, it admitted that it had contracted with the FRVTA for a booth in the exhibition hall of the RV SuperShow for the display of its products, but it denied any negligence and raised various affirmative defenses. Carefree also filed a third-party complaint against DRG for indemnity and contribution. In its third-party complaint, Carefree alleged that “DRG breached its duty of reasonable care by failing to properly and safely secure a metal display pole in the Carefree of Colorado exhibit booth which fell causing [Ms. Metsker's] alleged injuries.”

After the parties had conducted discovery, Carefree moved for summary judgment. In its motion, Carefree admitted that it had rented the booth for the display of its products but asserted that it “did not construct, control, or operate the Carefree of Colorado display booth.” Instead, Carefree claimed that “DRG was acting as an independent contractor and not [as] an employee or agent” in operating the booth and that Carefree “cannot be held liable under the [d]octrine of [a]pparent [a]gency” for the negligence of its independent contractor. The trial court agreed, ruling that DRG was an independent contractor and that Carefree owed no duty of care to Ms. Metsker. Accordingly, the trial court entered a summary final judgment in favor of Carefree. This appeal followed.

III. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

IV. WHO CONTROLLED THE BOOTH: CAREFREE, DRG, OR BOTH OF THEM?

A. The Applicable Law.

At the hearing on the motion for summary judgment, Ms. Metsker argued, as she does on appeal, that Carefree owed her a nondelegable duty to keep its booth in a reasonably safe condition because it maintained control over the premises. In response to this argument, the circuit court commented, “It was Carefree's booth but they weren't property owners, they were squatters. They were renters like the others.” Here, the circuit court fell into error.

In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises. The First District has summarized the applicable rule as follows:

The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises depends generally upon his control of the property, regardless of whether he has title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. Thus, anyone who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair, and the fact that others are under a duty which they fail to perform is no defense to one who has assumed control, thereby bringing others within the sphere of danger.

Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136, 1138 (Fla. 1st DCA 1983) (citation omitted); see also Lukancich v. City of Tampa, 583 So.2d 1070, 1073 (Fla. 2d DCA 1991) (“Even if the City does not own the property, if it assumed control over the property, it also assumed the responsibility to exercise the requisite degree of care toward the various classes of persons who are on the premises.” (citing Arias, 426 So.2d 1136)).

Two or more parties may share control over land or business premises. Under these circumstances, “the fact that there may be joint responsibility or control over premises does not relieve a party from responsibility. A duty, and therefore liability for breach of that duty, may rest upon more than one party[.]” Craig v. Gate Mar. Props., Inc., 631 So.2d 375, 378 (Fla. 1st DCA 1994). “In addition, the fact that more than one person is under a duty and one fails to perform is no defense to one who has assumed...