Orr v. D'Andrea, AF-434

• Decision Date: 15 April 1982
• Docket Number: No. AF-434,AF-434
• Citation: 412 So.2d 933
• Parties: Lucy Mae ORR and Curtis Orr, her husband, Appellants, v. Frank D'ANDREA d/b/a Continental Exteriors and/or Continental Exteriors, Inc., and Met Builders, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 933

412 So.2d 933

Lucy Mae ORR and Curtis Orr, her husband, Appellants, v. Frank D'ANDREA d/b/a Continental Exteriors and/or Continental Exteriors, Inc., and Met Builders, Inc., a Florida corporation, Appellees.

No. AF-434.

District Court of Appeal of Florida, First District.

April 15, 1982.

William A. MacGuire, Orange Park, for appellants.

Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.

WIGGINTON, Judge.

The Orrs appeal the dismissal with prejudice of two negligence counts in their Second Amended Complaint against D'Andrea and Met Builders. Although the trial judge's order does not inform us of the grounds upon which he dismissed the counts, the parties have argued below and in this appeal whether the complaint sufficiently alleged the existence of a legal duty, and whether the Orrs had "superior knowledge" of the allegedly hazardous condition created by the defendants so as to preclude a finding of liability. Because the order of dismissal cannot be sustained on either ground, we must reverse.

Count IV, directed against Met Builders, alleged the following facts: After the Orrs had contracted with D'Andrea to install a new roof on their home, D'Andrea subcontracted with Met Builders. During the course of the work, the roofers littered the premises with discarded nails and "debris," despite the Orrs' repeated requests for them to pick up after themselves, and "even though in the exercise of reasonable diligence (Met Builders) knew or should have known that the presence of the nails and debris was a danger to (the Orrs)." When the work was complete and the roofers gone, Lucy Orr attempted the cleanup herself and was injured when a nail punctured her foot, causing hospitalization expenses and other damages "as a direct and proximate result of (Met Builders') negligence in leaving the debris and nails in a place where (the Orrs) could be expected to come and go."

Count V, with Curtis Orr as plaintiff, realleged these facts and additionally named D'Andrea as a defendant in his capacity as contractor and supervisor of the work. The count alleged that Curtis Orr had incurred certain damages as a result of his wife's injury.

Met Builders, citing Slavin v. Kay, 108 So.2d 462 (Fla.1959), argues there can be no recovery because the injury occurred after the work had been completed, and any dangerous condition in the Orrs' yard was obvious. The so-called "Slavin rule" established that a contractor is not liable for injuries to third parties after the owner has accepted the work, unless the defect at issue was latent and could not have been discovered by the owner, or unless the contractor was dealing with inherently dangerous elements. ¹

Because no third party is involved in this case, the inapplicability of the Slavin rule is easily discernible. Even if Slavin were applicable, a contractor's duty of care is discharged upon acceptance, not mere...