Van Ness v. Independent Const. Co., 79-407

Decision Date28 January 1981
Docket NumberNo. 79-407,79-407
PartiesVincent N. VAN NESS, Jr., and Donnie Van Ness, Appellants, v. INDEPENDENT CONSTRUCTION COMPANY et al., Appellees.
CourtFlorida District Court of Appeals

Marcia K. Lippincott, Sanford, and Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.

J. Lester Kaney of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellee Sears.

ORFINGER, Judge.

This appeal is from a summary final judgment entered in favor of Sears, Roebuck & Company (Sears), one of the defendants below. We affirm.

The record reveals that Sears contracted with Independent Construction Company (Independent) to build a Sears store in Daytona Beach. Independent sub-contracted with the James Wilson Company to perform a portion of the construction. Appellant Vincent N. Van Ness, Jr. was employed by James Wilson as a worker on the project. While at work, a scaffolding upon which Van Ness was standing collapsed and a wall partially or totally fell on him, causing serious injuries. It appears that the wall fell because Independent did not follow the plans and tie the walls of the building with a continuous beam or bond. The complaint charged that Sears was (1) negligent in failing to provide Van Ness with reasonably safe working conditions; (2) negligent in failing to provide reasonably safe and proper supervision of the construction of the building.

The building was a duplicate of one previously designed for Sears and built elsewhere and the basic drawings and specifications prepared for the first building were also used for this one. The contract between Sears and Independent was for a fixed contract price and required Independent, as general contractor, to provide all materials and perform all the design and construction work shown on the plans and specifications previously drawn by the Atlanta architectural firm of Cooper, Carry & Associates, Inc.

Sears did not retain the architectural firm which had originally designed the building to do any work on this one. Instead, the contract required Independent to retain an architect to make design changes and other alterations needed to meet local building codes. Consequently, a provision of the standard contract relating to supervision, reading:

ARTICLE 2 DIRECTION OF THE WORK :

The work included in this contract is to be done under the direction of said Architects, or their representatives, and their decision as to the true construction and meaning of said plans and specifications shall be final and binding upon the General Contractor and upon the Owner.

was footnoted as follows:

Any reference to Architect in this standard construction agreement form shall be changed to Owner or Owner's representative for the purpose of approval, acceptance or direction.

Appellant contends that by virtue of the foregoing footnoted change, Sears retained control of the work and was an active participant in the construction to the extent that it directly influenced or had the right to influence the manner in which the work was performed. The trial court found that the record revealed, without contradiction, that Sears was a passive non-participant and did not actively participate in the construction to the extent that it directly influenced the manner in which the work was performed, and entered a final summary judgment in favor of Sears, which is the subject of this appeal.

The record is clear that Sears did little, if anything to supervise the work. One of appellant's points on appeal contends that if Sears had actually supervised the job, it would have discovered the absence of the required tie-beam, so its failure to do so is evidence of negligence sufficient to create an issue of fact. Consequently, appellant relies on the recited contract provision to show that Sears, by substituting itself for the architect had the legal right to control the job, irrespective of its actual exercise of the right. Apparently the trial judge did not read the contract to give Sears that right, nor do we. Made a part of the contract are printed "General Conditions of the Contract of Construction", AIA Document A 201. It is clear that the supervisory function of the architect contemplates the duty to see to it that the owner gets what he contracted for. There is nothing in the contract or the general conditions which gives the...

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