Pennington v. Serig, 76-2154

• Decision Date: 15 November 1977
• Docket Number: No. 76-2154,76-2154
• Parties: John PENNINGTON and Marcia Pennington, his wife, Appellants, v. Jack SERIG et al., Appellees.
• Court: Florida District Court of Appeals

Page 107

353 So.2d 107

John PENNINGTON and Marcia Pennington, his wife, Appellants, v. Jack SERIG et al., Appellees.

No. 76-2154.

District Court of Appeal of Florida, Third District.

Nov. 15, 1977.

Rehearing Denied Jan. 4, 1978.

Freidin & Goldfarb and Philip Freidin, Miami, for appellants.

Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PER CURIAM.

Plaintiffs appeal an adverse summary judgment in this action to recover damages for personal injuries sustained as a result of a slip and fall accident.

Jack Serig, defendant-appellee, supervises the annual safety inspection for all school facilities as safety supervisor for the Dade County Board of Public Instruction. On September 25, 1975 Serig recommended to the Board's maintenance department that the treads on the 4th floor landing of a stairway in the Board's office building be removed. The maintenance department removed the treads and shortly thereafter Serig inspected the landing and determined it to be safe. On October 5 plaintiff John Pennington sustained personal injuries when he tripped on the landing and fell. He and his wife, Marcia, filed a complaint against Serig and his supervisor, Richard Hale, alleging that the landing was in a defective or dangerous condition due to the negligence of these two defendants in removing or directing the removal of the treads creating a dangerous condition and in failing to warn of this condition. Following pretrial discovery, defendants moved for summary judgment which was entered in their favor. We affirm.

In the absence of any allegation or proof of bad faith or malicious purpose on their part, defendants are immune from personal liability under Section 768.28(9), Florida Statutes (1975). See also Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla.1st DCA 1977). Second, plaintiffs' reliance upon the fellow servant rule to establish a duty upon the defendants is misplaced as under the circumstances plaintiffs and defendants cannot be considered fellow servants. See Sutton v. Hancock, 105 Fla. 497, 500, 141 So. 532, 533 (1932) and Cf. Williams v. Dade County, 237 So.2d 776, 781 (Fla.3d DCA 1970). Last, if a duty did exist, then such duty was owed to the general public as opposed to a special duty owed to the plaintiffs and, therefore, under the holding of Modlin v. City of Miami Beach, 201 So.2d 70, 75 (Fla.1967), plaintiffs could not prevail.

Affirmed.