Northern Trust Bank of Florida, N.A. v. Construction Equipment Intern., Inc.
| Decision Date | 17 September 1991 |
| Docket Number | Nos. 89-1722,89-1798,89-1894 and 89-1944,s. 89-1722 |
| Citation | 587 So.2d 502 |
| Parties | 16 Fla. L. Weekly D2464 NORTHERN TRUST BANK OF FLORIDA, N.A., as Personal Representative of the Estate of Bennett Franklin McClary, Deceased, Appellant, v. CONSTRUCTION EQUIPMENT INTERNATIONAL, INC., Teitelbaum Concrete Co., H & R Hoist & Rentals Co., Inc., jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
Barranco, Kellough & Kircher, Daniels & Talisman and Patrice A. Talisman, Miami, Arthur F. McCormick, South Miami, for Northern Trust Bank of Florida, N.A.
Richard A. Sherman and Rosemary B. Wilder, Ft. Lauderdale, for Teitelbaum Concrete Co.
Touby Smith DeMahy & Drake and Kenneth R. Drake, Miami, for H & R Hoist and Rentals Co., Inc.
Durkin & Morlan, Orlando, and Harold E. Morlan, II and Mark A. Risi and Beth B. Ball, Orlando, for Const. Equipment Intern., Inc.
Magill & Lewis and R. Fred Lewis, Miami, for Turner Const. Co.
Before FERGUSON, LEVY and GODERICH, JJ.
Turner Construction was the general contractor on a project to build new condominiums at Fisher Island. Turner Construction hired Teitelbaum Concrete Company as the subcontractor to build the concrete superstructure and Daniel Electric as the subcontractor to do the electrical work. Bennett McClary, the decedent, was Daniel Electric's foreman on the project. Under the terms of the contract between Teitelbaum and Turner Construction, Teitelbaum was required to furnish all cranes needed for the job, and to be responsible for their safe operation. Teitelbaum agreed to comply with OSHA regulations, and assumed responsibility for damages resulting from accidents to workmen under its control. Teitelbaum agreed to indemnify and save harmless Turner Construction and the owner from any such claims for damages and assume the legal fees for their defense and pay any judgment rendered.
H & R Hoist and Rentals Co., Inc. ["H & R"] was hired to provide a crane and an operator, and thus became Teitelbaum's subcontractor. H & R did not have the type of crane needed, and so it contacted Construction Equipment International, Inc. ["CEI"], and executed a short term lease with CEI for the use of the crane. CEI delivered the crane to Fisher Island.
The evidence as to how the crane's location was chosen was in dispute. There was evidence presented that Turner Construction had been asked to clear a site inside the construction site in order to set up the crane, but that Turner Construction had refused. The crane was positioned just outside the construction area, alongside a wooden fence. It was positioned partially on a grassy/sandy area and partially on the road. The outriggers, which are beams used to stabilize the crane, were not fully extended, and two of the pods were positioned in sand. Ordinarily, plywood pads are placed underneath the pods when in sand, to prevent the outriggers from sinking. However, on the day of the accident no plywood pads were available and this was not done.
H & R sent its employee, Joe Abbot, to operate the crane. Abbot had been employed by H & R for two and one-half years as a crane operator. He had never operated this particular model of crane provided by CEI. H & R gave Abbot the crane manual, but did not provide him with any training or instruction on the use of the crane, in violation of OSHA regulations. Abbot's failure to extend the outriggers did not conform to industry standards, and was in violation of the warnings in the manual and in the crane, and OSHA regulations.
The crane and...
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