Strickland v. Timco Aviation Serv. Inc.

• Decision Date: 23 August 2011
• Docket Number: No. 1D10–4635.,1D10–4635.
• Citation: 66 So.3d 1002
• Parties: Travis Leroy STRICKLAND, Appellant,v.TIMCO AVIATION SERVICES, INC., a Delaware corporation; Triad International Maintenance Corporation, a Delaware corporation; and Donald Kenneth Joye, d/b/a Joye Painting Service, Appellees.
• Court: Florida District Court of Appeals

66 So.3d 1002

Travis Leroy STRICKLAND, Appellant,

v.TIMCO AVIATION SERVICES, INC., a Delaware corporation; Triad International Maintenance Corporation, a Delaware corporation; and Donald Kenneth Joye, d/b/a Joye Painting Service, Appellees.

No. 1D10–4635.

District Court of Appeal of Florida, First District.

June 30, 2011.Rehearing Denied Aug. 23, 2011.

Robert O. Stripling, Jr. of Stripling & Stripling, P.A., Gainesville; Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.Michael G. Shannon, John M. Murray, and Jennifer M. Clark of Murray, Morin & Herman, P.A., Tampa, for Appellees.ROWE, J.

This is an appeal of a final summary judgment entered in favor of Appellees TIMCO Aviation Services, Inc. (TIMCO) and TRIAD International Maintenance Corporation (TRIAD) ¹ against Appellant, Travis Strickland, who was the plaintiff below in this personal injury action. We affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Strickland was employed by Joye Painting. Joye Painting entered into a contract with TIMCO to perform work on an airplane hangar operated by TIMCO. The proposal submitted to TIMCO provided that Joye Painting would pressure wash the roof of the hangar and perform repair and maintenance on the skylights on the roof.

Joye Painting used a chlorine mixture to pressure wash the roof surface. Strickland testified that he typically pressure washed from the top of the roof down. However, at the time of the accident, he was walking horizontally across the roof to reach a spot he had missed. Strickland stated that mist got behind his glasses and into his eyes, causing them to burn. He opened his eyes, but he could not see; “it was like a whole bunch of white specks were on [my eyes].” Strickland explained that it was at this point that he put his foot down to collect himself. When he did so, Strickland stepped on a skylight and fell five stories to the ground.

As a result of injuries he sustained from the fall, Strickland filed suit against TIMCO and Donald Kenneth Joye, d/b/a Joye Painting Services,² alleging that he was injured while working on premises owned by TIMCO and that TIMCO's negligence was the cause of his injuries. Strickland asserted that TIMCO was negligent because the skylights were indistinguishable from the roof because of their color, could not withstand 200 pounds of perpendicular pressure, and lacked protective guardrails in violation of Occupational Safety and Health Administration (“OSHA”) and industry standards. Strickland also alleged that TIMCO negligently furnished him with inadequate safety equipment, specifically an inadequate fall protection system. Strickland alleges that he was given a safety harness that lacked a device known as a “rope grab” which would have enabled him to control the amount of slack rope and could have prevented his fall.

TIMCO moved for summary judgment contending that no act or omission on TIMCO's part caused or contributed to Strickland's accident. TIMCO asserted that Strickland was an employee of an independent contractor, Strickland knew of the existence of the skylights, and Strickland appreciated the potential consequences of stepping on a skylight. After hearing argument from the parties, the trial court granted the motion for summary judgment in favor of TIMCO.

ANALYSIS

A trial court's grant of a motion for summary judgment is appropriate where there “is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.” Lomack v. Mowrey, 14 So.3d 1090, 1091 (Fla. 1st DCA 2009). In negligence actions, the question of the duty owed to a plaintiff is always one of law and never one for the jury. Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Accordingly, where a defendant establishes as a matter of law, that no duty is owed to the plaintiff, the trial court may properly grant summary judgment in favor of the defendant. See Jenkins v. W.L. Roberts, Inc., 851 So.2d 781 (Fla. 1st DCA 2003).

Generally, a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work. Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). However, there are two exceptions to the general rule. An owner can be held liable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition. See id. Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors. Pertl v. Exit Information Guide, Inc., 708 So.2d 956, 957–58 (Fla. 1st DCA 1997).

Under the first exception to the general rule, “[l]iability may be imposed if the owner actively participates and controls the manner in which the work is performed.” Id. “To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).

Strickland argues that the control exception applies here based on TIMCO's inspection of the work performed by Joye Painting and by TIMCO's provision of a safety harness and man lift to Joye Painting.³ However, mere inspection by a property owner of an independent contractor's work does not amount to control of the work or active participation by the property owner. See Skow v. Dep't of Transp., 468 So.2d 422, 424 (Fla. 1st DCA 1985); cf. Boatwright v. Sunlight Foods, Inc., 592 So.2d 261, 263 (Fla. 3d DCA 1991). Further, by providing Joye Painting with a safety harness for use in their work TIMCO did not participate in, influence, or exercise direct control over the work performed by Joye Painting and its employees. Compare St. Lucie Harvesting and Caretaking Corp. v. Cervantes, 639 So.2d 37, 40 (Fla. 4th DCA 1994) (directing “the independent contractor in regard to the amount of fruit to be harvested and from which grove” did not constitute active control), with Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417, 421 (Fla. 3d DCA 1985) (having “a staff of field supervisors who oversaw, directed and coordinated the construction project,” and a superintendent who made daily progress reports and “sometimes became physically involved in the construction” constitutes active participation).

Under the second exception to the general rule, a property owner may be liable for injuries sustained by an employee of an independent contractor “if the owner performs one or more specific acts of negligence.” Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). Specific acts of negligence include “negligently creating or negligently approving the dangerous condition resulting in the injury ... to the contractor's employee.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987) (citing Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)); accord Houk v. Monsanto Co., 609 So.2d 757, 759 (Fla. 1st DCA 1992).

However, a property owner will be held liable for negligence only with regard to those dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care. Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla.1953); Pertl v. Exit Information Guide, Inc., 708 So.2d 956, 957–58 (Fla. 1st DCA 1997). If the property owner knows that an actual or potential danger exists on the property, the property owner has an affirmative duty to warn the independent contractor engaged to perform work on the property of that dangerous condition or to use ordinary care to furnish protection against the danger. Robinson, 68 So.2d at 411. But where the danger is open and apparent or readily ascertainable, the property owner is under no duty to warn and will not be held liable for injuries sustained by the employee of an independent contractor in performing work under the contract. See Roberts v. Dacra Design Associates, Ltd., 766 So.2d 1184, 1185 (Fla. 3d DCA 2000) (property owner not liable for injury to repairman on construction site who fell on a piece of pipe lying on the ground because repairman should have anticipated the presence of construction materials and could have discovered the potential hazards through a reasonable inspection).

However, even where a dangerous condition is apparent or where the property owner has warned the independent contractor of a dangerous condition existing on the premises, if the employee is injured not in the course of the work the contractor was hired to perform, but rather while the employee is attempting to access the premises to perform that work, courts will analyze the duty of the property owner to the employee of the independent contractor under the separate analysis applied to business visitors, or invitees. In Ahl v. Stone Southwest, Inc., 666 So.2d 922 (Fla. 1st DCA 1995), the employee of the independent contractor, George Ahl was hired to perform maintenance work on machines at the property owner's paper mill. Id. at 923. In preparation for the maintenance work, the property owner's employees hosed down the machines, covering the floor in a mixture of water, grease, and oil. Id. Ahl noticed the condition of the floor and reported it to his supervisor. Id. Although the supervisor informed the property owner of the condition of the floors, the property owner did not do anything to remedy it. Id. In order to carry out the assigned task, Ahl placed a ladder in the pool of water next to the machine. Id. While performing his duties, Ahl slipped from the ladder and injured his back. Id. Under those facts,...