Modlin v. Washington Ave. Food Center, Inc.

CourtCourt of Appeal of Florida (US)
Citation178 So.2d 596
Docket NumberNos. 64-917,64-918,s. 64-917
PartiesMax MODLIN, husband and surviving spouse of Celia Modlin, Deceased, Appellant, v. WASHINGTON AVENUE FOOD CENTER, INC., a Florida corporation, Robert Rothlein and the City of Miami Beach, a municipal corporation, Appellees.
Decision Date28 September 1965

Nichols, Gaither, Beckham, Colson & Spence, Miami, for appellant.

Pyszka, Kessler, McMath & Adams, Miami, for Washington Avenue Food.

Michael H. Salmon, Miami Beach, for Robert Rothlein.

Paul P. Meltzer and Murray Goldman, Miami, for City of Miami Beach.



Celia Modlin was shopping at the Washington Avenue Food Center on Miami Beach. While she was in the store, half of an overhead mezzanine, which was used as storage area, collapsed upon her. Mrs. Moldlin was crushed to death. Max, Moldin, Mrs. Modlin's husband, sued the Washington Avenue Food Center, Robert Rothlein, and the City of Miami Beach of recover damages for her wrongful death. The amended complaint charged that Rothlein had improperly constructed the balcony area, that the City of Miami Beach building inspector had improperly inspected it, and that the store had negligently failed to properly maintain its premises. On the basis of the pleadings and depositions, separate summary judgments were entered in favor of the store owner, Washington Avenue Food Center, and the City of Miami Beach. The complaint against the contractor, Rothlein, was left for the trial. The plaintiff took separate appeals from the summary judgments, and the appeals have been consolidated here. We affirm the summary judgment for the defendant, City, and reverse the summary judgment for the defendant, store owner.


Approximately five years before the collapse of the balcony, the owner of the food store had contracted with Robert Rothlein, a licensed building contractor, to construct the mezzanine storage area in the then existing store building. The owner had plans drawn by an architect and also engaged an engineering firm for the structural design of the mezzanine. Pursuant to these plans, the City of Miami Beach issued a building permit for the construction of the mezzanine. Thereafter, the work was performed and the mezzanine was completed. Records of the City of Miami Beach show that a final inspection of the construction work was made by one of the City's inspectors, Eugene Cox.

Subsequent to the collapse, it was determined that some of the columns supporting the mezzanine had not been properly attached to the steel I-beams which ran the length of the mezzanine. The plans provided for each column to be connected with the beam by six half-inch bolts and two 3/8ths inch bolts. However, only the two 3/8ths inch bolts were actually installed to support each beam. It was also determined that the mezzanine collapsed because the 3/8ths inch bolts failed to adequately support the load. It has not been suggested that the actual load was in excess of the design strength nor was the correctness of the design questioned by the parties.

There is no record to indicate that the City's inspector either did or did not make a framing inspection of the connections between the beams and the columns after they were erected, although a framing inspection was a normal part of the inspector's duties. Cox's version of what actually occurred could not be obtained because he died prior to the taking of depositions in this cause.

In the completed stage of the work, the columns and beams were covered by plaster and tile from below and by wood flooring from above, thereby precluding a visual inspection of the joints without tearing away some of the finished work.


A review of the record convinces us that the only basis upon which the trial judge could have found that the defendant, Washington Avenue Food Center, Inc., was entitled to a summary judgment was a holding that, under the facts outlined above, the store owner could not be held liable to the plaintiff. The appellee does not suggest any other basis for the judgment, and the order entered by the trial judge indicated that basis for his holding. The order appealed is in part as follows:

'THIS CAUSE came on to be heard on the Motion for Summary Judgment of the Defendant WASHINGTON AVENUE FOOD CENTER, INC.

'During the course of the argument on said Motion, counsel for the Plaintiff orally moved the Court to be permitted to amend the Complaint to allege therein that at all times material to the action the Defendant ROBERT ROTHLEIN was an agent of the Defendant WASHINGTON AVENUE FOOD CENTER, INC., and was at all times acting within the course and scope of his agency. This Motion was granted.

'Notwithstanding said amendment to the Complaint and in consideration of all matters before me and after hearing argument of counsel and being otherwise fully advised in the premises, it is

'ORDERED AND ADJUDGED that there is no genuine issue as to any material fact therein and accordingly the Motion for Summary Judgment filed by this Defendant be and the same is hereby granted and it is further. * * *'

The appellant urges three separate reasons why the conclusion of the trial judge is incorrect. They are:

(1) The store is vicariously liable to its business invitees, like Mrs. Modlin, for the alleged negligence of its contractor, Rothlein;

(2) The unrebutted inference of negligence arising from the doctrine of res ipsa loquitur presented a jury issue on the store's negligence; and

(3) The store did not show that it had discharged its alleged independent duty of properly inspecting its premises so as to safeguard its invitees.

The appellee, store owner, upon the other hand, urges:

(1) The rule in Florida is that an employer is not liable to a third party for the negligent or defective performance of an independent contractor unless the employer controls or directs the work, the work is inherently dangerous, or the employer has knowledge or has been placed on inquiry respecting the defect.

(2) An inference of negligence cannot rise under the doctrine of res ipsa loquitur because the evidence is clear that the defendant, store owner, had no means to observe the structural weakness.

(3) The record, without conflict of facts, shows that the defendant, store owner, exercised all the care that could reasonably be expected.

The parties agree that Mrs. Modlin was a business invitee of the food market and that she was shopping on its premises at the time of the accident. As a matter of law, it is established that those who impliedly invite others upon their premises for purposes of lawful business are required to have the premises in a reasonably safe and suitable condition for the purposes of the particular business. J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912). Economy Cash and Carry Cleaners, Inc. v. Gitlin, 146 Fla. 242, 1 So.2d 191 (1941). If a person has a duty imposed by the law, that duty can ordinarily be discharged by an exercise of reasonable care. 1 The difficulty is not in ascertaining the language describing the duty; the difficulty is in determining whether the meaning of the rule extends to the acts of a construction instrumentality who is an independent contractor.

The Restatement of the Law of Torts (Second) § 422 (1965), under the heading 'Work on Buildings and Other Structures on Land, sets forth the following principle:

'A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the progress of the work, or (b) after he has resumed possession of the land upon its completion.'

We are persuaded to the opinion expressed in Frear v. Manchester Traction, Light & Power Co., 83 N.H. 64, 139 A. 86, 61 A.L.R. 1280 (1927), where it is pointed out that when the proprietory of a public place holds out an invitation to the public for the use of his premises, he acts as the sponsor of an enterprise and has a duty to keep the place reasonably safe. This duty is non-delegable. Corrigan v. Elsinger, 81 Minn. 42, 83 N.W. 492 (1900); Great American Indemnity Co. v. Deatherage, 175 Okl. 28, 52 P.2d 827 (1936); Cannon v. S. S. Kresge Co., 233 Mo.App. 173, 116 S.W.2d 559 (1938); Eisenberg v. Irving Kemp, Inc., 256 App.Div. 698, 11 N.Y.S.2d 449 (1939); Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929 (1943).

The appellee relies upon Nutt v. James City, Inc., Fla.App.1964, 162 So.2d 700, for a contrary holding by this Court. In that case, we affirmed a directed verdict for the defendant, store owner, against the plaintiff who claimed negligence of the store owner in maintaining its premises. The evidence showed that an air conditioning duct fell upon the plaintiff because it was improperly attached to the ceiling or wall. In affirming the trial court, we held that any inference of negligence, by virtue of the doctrine of res ipsa loquitur, was resolved by the uncontradicted testimony of the owner's agent that he had inspected the duct two months prior to the occurrence and found it in sound condition. We believe that the holding in Nutt v. James City, Inc. may be distinguished upon the ground that the evidence there affirmatively showed an inspection. Insofar as the holding herein is contrary to that in the James case, we recede from the opinion expressed in the James case and now hold that an owner of a store or other public place, who impliedly invites the public into that place for the transaction of business, assumes a non-delegable duty to have those premises...

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