Seitz v. Zac Smith & Co., Inc.
| Citation | 500 So.2d 706,12 Fla. L. Weekly 211 |
| Decision Date | 06 January 1987 |
| Docket Number | No. BK-172,BK-172 |
| Court | Court of Appeal of Florida (US) |
| Parties | 12 Fla. L. Weekly 211 William (Rocky) SEITZ, Appellant, v. ZAC SMITH & COMPANY, INC., Webb Electric Company of Florida, Inc., Noland Company, Horace E. Shumpert and Phillip R. Jones & Associates, Appellees. |
William J. Green of Green, Dees & France, Pensacola, for appellant.
Donald H. Partington and Millard L. Fretland of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for appellee/Zac Smith & Co., Inc., and Webb Elec.
Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellee/Horace E. Shumpert.
J. Stephen Menton of Huey, Guilday, Kersteiner & Tucker, P.A., Tallahassee, for appellee/Phillip R. Jones & Associates.
William L. Lee, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appellee/Noland Co SMITH, Judge.
In this action for personal injuries suffered when he fell from a floodlight tower, Seitz appeals the final summary judgment in favor of appellees rendered by the trial court in reliance upon the doctrine of Slavin v. Kay, 108 So.2d 462 (Fla.1958). We affirm.
In approximately August 1978, the Escambia County School Board contracted with Zac Smith & Company, Inc. (Zac Smith) to do certain construction work at Pine Forest High School and other schools. The contract called for Zac Smith to provide all labor, materials and equipment needed to perform the work which included the erection of numerous floodlight towers at the high school stadium. At the same time, the school board retained Horace E. Shumpert (Shumpert) to provide professional engineering services including the final inspection of the project to assure that the work was done according to the plans and specifications of the project. Webb Electric Company of Florida, Inc. (Webb Electric) subcontracted with Zac Smith to provide assistance in the erection of the floodlight towers. Noland Company (Noland) supplied the floodlight towers for the project. Phillip R. Jones & Associates, Inc. (Jones) orally subcontracted with Shumpert to provide the electrical and mechanical drawings and specifications for the floodlight towers, including the responsibility for the final inspection of the construction after completion. Seitz does not allege that any of these parties was the manufacturer of the poles.
At oral argument, counsel explained that the towers were partially fabricated by the manufacturer and then brought to the site in sections for final assembly. The sections were not all identical, but were numbered sequentially so as to assure that the proper sections were used for each tower. However, in assembling the tower in question, a section intended for another tower was inadvertently used.
The tower is designed to be climbed by means of metal pegs which protrude from the tower at staggered intervals left and right. Because the tower was not assembled sequentially, there was a missing peg where mismatched sections of the tower had been improperly joined together. Seitz's counsel admitted at oral argument that had the tower been assembled sequentially as designed, there would have been no defect. All of the parties agree that the defect (the missing peg) was obvious and discoverable upon reasonable inspection.
The construction project was subsequently completed and accepted by the school board. On May 30, 1983, Seitz, an electrician's helper for the school board, was instructed by his supervisor to climb the tower for the purpose of making a temporary repair to some electric wires located at the top of the tower. On his way up the tower, Seitz encountered a missing peg and informed his coworkers of this. 1 He was told by the senior electrician on the job that if he didn't go ahead and climb the tower he would "get his walking papers." Seitz appreciated the risk of continuing to climb with the peg missing, but he continued his climb nevertheless because he didn't want to lose his job. He was able to proceed to the top of the tower and complete his task. On the way down, he lost his footing and balance when he stepped into the area of the missing peg and fell to the ground suffering severe injuries.
Seitz filed a complaint against the appellees seeking damages on the theories of negligence, breach of warranty and "product liability." All of the appellees moved for summary judgment on two separate grounds: (1) that the chain of proximate causation stemming from any defect in the work was broken as of the date the school board accepted the work since the defect was patent and discoverable on the date of the acceptance which was prior to the injury, and (2) that Seitz's claim was barred by the doctrine of express assumption of risk. The trial court entered a summary judgment but did not specify whether it was based on the first or second ground, or both.
On appeal, no serious contention has been made by Seitz that the tower, which was affixed to real estate, constituted a "product" or "good" 2 which was sold in the marketplace so that principles of strict liability or implied warranty apply. See Chadbourne v. Vaughn, 491 So.2d 551 (Fla.1986) (); Craft v. Wet 'n Wild, Inc., 489 So.2d 1221 (Fla. 5th DCA 1986) (); Jackson v. L.A.W. Contracting Corp., 481 So.2d 1290 (Fla. 5th DCA 1986) (); Port Sewall Harbor and Tennis Club Owners Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So.2d 530 (Fla. 5th DCA 1985) (); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), pet. for rev. den., 441 So.2d 632 (Fla.1983) (); and Conklin v. Hurley, 428 So.2d 654 (Fla.1983) ().
Instead, Seitz's appeal focuses on his right to recover against appellees for the negligent construction of the tower.
As stated in Slavin, 108 So.2d 465, the traditional rule is that contractors are not liable for injuries to third parties occurring after the contractor has completed the work and turned the project over to the owner or employer and it has been accepted by him. The reasons for this rule are that the contractor could have no "present duty" to the third party if the premises were in the possession and control of the owner at the time of the injury, and that it is the intervening negligence of the owner in failing to correct the dangerous condition that proximately causes the injury. The rationale is that:
By occupying and resuming possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author. When he accepts work that is in a dangerous condition, the immediate duty devolves upon him to make it safe, and if he fails to perform this duty, and a third person is injured, it is his negligence that is the proximate cause of the injury. His liability may be incurred either from his substitution for the contractor or from his neglect to repair. Slavin, 108 So.2d at 466, quoting Annot., 13 A.L.R.2d, pp. 207-8. [This annotation has been superceded, see Annot., 58 A.L.R.2d 865 (1958), discussing the negligence of a building or construction contractor as a ground of liability upon his part for injury or damage to a third person occurring after completion and acceptance of the work.]
The rule is subject to exceptions too numerous to fully explicate here. Notably, it does not apply where there is in fact no acceptance, Carter v. Livesay Window Co., 73 So.2d 411 (Fla.1954); nor does it apply where the dangerous...
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