Slavin v. Kay

• Decision Date: 16 April 1958
• Parties: Benjamin J. SLAVIN, Appellant, v. Sanford KAY, doing business as Carousel Apartment Motel, and McCann Plumbing Co., a Florida corporation, Appellees.
• Court: Florida Supreme Court

Page 462

108 So.2d 462

Benjamin J. SLAVIN, Appellant, v. Sanford KAY, doing business as Carousel Apartment Motel, and McCann Plumbing Co., a Florida corporation, Appellees.

Supreme Court of Florida.

April 16, 1958.

On Rehearing Jan. 21, 1959.

Nichols, Gaither, Green, Frates & Beckham, William S. Frates and Sam Daniels, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for Sanford Kay, doing business as Carousel Apartment Motel, appellee.

Rollo E. Karkeet, Miami, for McCann Plumbing Co., appellee.

THOMAS, Justice.

The appellant instituted an action against the appellees for damages said to have been sustained when a wash-basin in a room occupied by him in a motel became detached from the wall and knocked him to the floor.

The appellee, Sanford Kay, was lessee and proprietor of the motel and the appellee, McCann Plumbing Company, had installed the fixture. In brief, it was alleged that appellee-Kay had so negligently maintained the premises that although he knew, or should have known, that the fixture was unsecurely fastened to the wall, or was defective, he failed to remedy the condition or warn the appellant of a danger that was not ascertainably by the appellant.

It was charged that McCann Plumbing Company, the contractor that had installed the basin, failed to use reasonable care in doing so because the fixture was improperly attached to the wall, or it, or its accessories, were faulty.

Soon after the action was started the court granted the motion of appellee-McCann Plumbing Company to dismiss the complaint as to it and the action was reviewed here. This court affirmed the judgment but permitted the appellant to amend, and this was done. Slavin v. McCann Plumbing Co., Fla., 73 So.2d 902.

At the conclusion of the introduction of appellant's testimony in the eventual trial the court granted the motions of both appellees for a directed verdict.

The only point presented by the appellant in this appeal from the final judgment based on the directed verdict is the propriety of the holding that there was no evidence to support a verdict against either the operator of the motel or the plumbing contractor. We will first consider the responsibility of the latter.

In the opinion written when the matter formerly came here the court referred to the 'well-settled rule' that contractors are not liable to third persons after their work is completed and accepted by the owner. The court observed that there were many exceptions to the rule, and that a class of these had been recognized in Breeding's Dania Drug Co. v. Runyan, 147 Fla. 123, 2 So.2d 376, and Carter v. Livesay Window Co., Fla., 73 So.2d 411. We have re-examined those cases, while bearing in mind the amendment made after our mandate issued, containing the charge that the plumbing company knew or should have known that 'its failure to exercise reasonable care in the * * * installation created an inherently dangerous situation * * *.' We conclude that the pivotal fact relevant to the rule that the court considered demonstrates that there is no occasion to make exception of this controversy. In the first case a repairman worked on the refrigerator system in a drug store. When, as a safety measure, he pulled the switch but half of the current of 220 volts was broken. He was injured by the remaining 110 volts. One company had done the wiring defectively, another company had installed the refrigeration equipment leaving it to be operated although knowing it was dangerous. The drug company was charged with negligence because it used the equipment without the inspection required by ordinance. So there was a succession of negligence from the electrician to the installer of the refrigerating equipment to the owner. All three were held to be joint tort-feasors. The important and significant factor was the dangerous agency, electricity, with which all were dealing. In the opinion in this case, written on its first appearance here, there was reference to the 'dangerous instrumentality doctrine contemplated in Breeding's Dania Drug Co. v. Runyan or Carter v. Livesay Window Company,' supra, so the court obviously thought that an exception to the doctrine was also involved in the latter case because a 325-pound window frame had been left over the weekend in a temporary, precarious position even though it may have been accepted from the man who furnished it for permanent installation by the general contractor. The element common to these two cases was, then, the hazardous nature of the instrumentality which caused the damages.

There has been much development in the law on the subject as will be seen by referring to a comprehensive note in 13 A.L.R.2d at page 191. But our examination of the authorities found there and other opinions to which we have been referred confirm us in the view that the rule and not the exception is apposite in the present case, principally because from the evidence produced, it is plain no such dangerous agency is here involved.

As we understand the facts with which we are dealing the appellee-plumbing company completed its job 13 months before appellant was injured. Howard McCann, president of McCann Plumbing Company had been in the plumbing business for 15 or 18 years. His men installed the plumbing in the motel and he personally inspected the work when it was finished. Evidently inspection of the newly constructed motel by Dade County Plumbing Inspection Department was required and obtained before the motel was made available to the public; and, as we understand the testimony, it was after the last inspection that the appellee-plumbing company was paid for its work.

We gather that this is a clear case for the application of the rule because the procedure followed emphasizes the reason for the rule, as it was stated in Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 245, 12 L.R.A. 322, that a contractor who performs work does not owe a duty to the whole world to insure against hidden defects, else the extent of his responsibility would be difficult to measure and a sensible man would hardly engage in the occupation under such conditions. The court added that it was 'safer and wiser to confine such liabilities to the parties immediately concerned.' This statement brings forward the corollary 'that a contractor * * * is not liable to third parties who have no contractual relation with him for negligence in the construction * * *.' Cooley on Torts 4th Ed., Vol. 3, § 498. If we were to hold the plumbing company liable in this case then it could conceivably be responsible, even though its work had been inspected and accepted, to any guest occupying the premises any time in the future who claimed injury from its deficient workmanship, despite the absence of any privity whatever between that company and the claimant.

We turn now to the accountability of the other appellee. The appellant, himself a builder of parts, had occupied the unit in the motel for seven days and had, of course, frequently used the sink which eventually was his undoing. One with his experience after occupying the quarters continuously for a week was given an opportunity to discover any defects that would have been found by the operator of the motel had he made a periodic inspection of this as well as all the basins in all the other units of the motel, unless he took the plumbing installations apart and this he was certainly not required to do. Hickory House v. Brown, Fla., 77 So.2d 249.

That the lip, on the back of the basin, that fitted into a bracket on the wall came out seems certain. Why it did so is obscure. But it is not deducible by a preponderance of the evidence that because it did so the appellee-lessee negligently failed to maintain the place in such a safe condition that his guests would not be injured. To state it otherwise, the mere fact that the sink came loose did not prove by a preponderance of the evidence the allegation in the complaint that although the appellee-operator 'knew or should have known that the wash-basin was defectively secured or attached to the wall or had fallen in a state of disrepair he failed to remedy this defective condition or warn the (appellant) of the said inherently dangerous condition * * *,' not to mention the following averment that this condition 'in the exercise of reasonable and ordinary care under the circumstances was not discoverable by the (appellant).' (Italics supplied.)

Because of the rule we have discussed we are not convinced that the circuit judge committed error when he directed the verdict in favor of McCann Plumbing Company, and because of the failure to prove by a preponderance of the evidence the allegations in the complaint against Sanford Kay, we conclude that the directed verdict in favor of that appellee was free of error also.

Affirmed.

TERRELL, C. J., ROBERTS, J., and PARKS, Circuit Judge, concur.

DREW, J., dissents as to contractor, concurs as to owner.

On Rehearing Granted

DREW, Justice.

The appellant, a guest of Carousel Apartment Motel, appellee, sustained injury when a basin fell from the wall of the bathroom in the unit occupied by him. The other appellee, McCann Plumbing Company, had installed the fixture. Liability was sought to be imposed against it for negligence in improperly attaching same, and against the motel for failure to maintain the premises in safe condition.

Although the cause of the accident is not plain, evidence was presented from which it might be inferred that the fixture was mounted upon its supporting bracket in a precarious and improper manner, and that this dangerous condition was not apparent upon ordinary inspection. Verdict was directed for the defendant plumbing company ¹ apparently for lack of a contractual relationship with the plaintiff. ²

In the previous appeal in this cause, ³ upon the pleadings, two instances were noted in which this Court has recognized exceptions to the rule that 'contractors * * * are not liable for injuries to third parties...