NONDELEGABLE DUTY OF CARE OWED TO THIRD PERSONS

Posted on May 14, 2023May 14, 2023 by David Adelstein

Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1^stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions. Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff. No duty, no negligence claim.

What if a defendant’s duty was delegated to, say, an independent contractor?

[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.

Garcia, supra, (internal citations omitted).

In Garcia, a supermarket hired a company to provide floor cleaning and janitorial services. The company subcontracted the work to an independent contractor. The plaintiff, an employee of the supermarket, fell at the supermarket and sued the cleaning company in negligence claiming the cleaning company “breached its duty of care to warn [the supermaket’s] employees and invitees of the unreasonably slippery floors that caused here injuries.” Garcia, supra. The cleaning company moved for summary judgment claiming it is not liable for the acts of its independent contractor. Thus, the fundamental question is whether the duty of care of the cleaning company was a nondelegable duty that could not be transferred to an independent contractor.

The trial court found the duty of care was NOT a nondelegable duty meaning it could be transferred to the independent contractor. In this case, the cleaning company could not be liable in negligence because it owed no duty to the plaintiff (as that duty was transferred). The First District Court of Appeal affirmed, “[W]e hold that [the cleaning company’s] contract with [the supermarket] did not create a nondelegable duty on [the cleaning company’s] part to [the plaintiff], a non-party to the contract. As such, the trial court properly granted summary judgment as to this issue.”

In affirming, the First District relied on the Third District Court of Appeal’s opinion in Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993), which stands for the proposition that the “‘mere existence of a contract does not create vicarious liability as to third persons for the negligence acts of the independent contractor.’” Garcia, supra, quoting Carrasquillo. In other words, the contract, in of itself, does not create a nondelegable duty of care to third persons not a party to the contract.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

EXISTENCE OF “DUTY” IN NEGLIGENCE ACTION IS QUESTION OF LAW

Posted on December 18, 2018April 24, 2020 by Edward Garber

In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

See id.

Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care.

To determine whether a defendant owed the plaintiff a duty under the general facts of the case, the issue becomes “whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So.2d at 502.

For example, in White v. Ring Power Corp., a personal injury case discussed here regarding an expert’s qualifications, the trial court granted summary judgment (as a matter of law) finding that the lessor of a crane did NOT owe the plaintiff a duty to download certain crane overload data before renting the crane to the lessee. The appellate court affirmed because nothing in the record established that the failure to download such data by the lessor before renting the crane created a broader zone of risk to the plaintiff.

UNDERTAKER’S DOCTRINE IN NEGLIGENCE CLAIMS — NO GOOD DEED GOES UNPUNISHED?

Posted on May 4, 2018May 4, 2018 by Edward Garber

There are many times the old adage, “No good deed goes unpunished,” rings true. At one point in time, or more likely many points in time, we have all felt this why. We undertook a good deed only to feel unappreciated or the good deed backfires.

In Florida, there is a legal doctrine known as the undertaker’s doctrine. Just the name of the doctrine has a morbid undertone, right? This doctrine applies in negligence scenarios because it establishes a duty that the undertaker owes to another, even if he undertook a service because he is a swell guy. This undertaker’s doctrine has been described as follows:

Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service — i.e., the ‘undertaker’ — thereby assumes a duty to act carefully and to not put others at an undue risk of harm. The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result.

Muchnick v. Goihman, 43 Fla.L.Weekly D986b (Fla. 3d DCA 2018 (internal citations and quotations omitted).

An example of the application of the undertaker’s doctrine can be found in Muchnick where the appellate court held former tenants could assert a negligence claim against their real estate rental agent. In this case, a real estate agent knew a family looking to rent another high-end apartment because they lived in the same building. He worked for a real estate brokerage firm and he approached the family about renting another unit in the same building. During the walk through of that unit, there were items the family wanted repaired and the agent assured the family they would be addressed prior to the family moving in. The family rented the apartment and the brokerage firm was listed as the broker for the transaction.

When the family moved into the unit, the items they wanted repaired were not. And, to make matters worse, the family discovered a serious water intrusion and damage problem that resulted in mold getting into to the apartment’s ventilation system. The family communicated predominantly with the real estate agent regarding the issues as the owner of the unit lived abroad and the agent lived in the building. During a deposition, the father claimed that the agent told him that since he lived in the same building he would be the go-to-guy to address any issues with the apartment and undertake repairs. The issues did not get resolved which impacted the children’s health and they were forced to terminate the lease early and relocate.

Initially, the real estate agent argued that his firm, and not him personally, should have been sued, because he was acting in the scope of his employment as a real estate agent in dealing with the family. The appellate court rejected this argument stating:

[J]ust because Goihman [agent] was acting in the scope of his employment when he rented the apartment, promised to fix it, and managed the repairs, doesn’t mean that he was shielded from personal liability under all circumstances. [O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. All that needs to be alleged is that the agent or officer personally participated in the tort, even if the complained of action was because of and entirely within the scope of his or her employment.

Muchnick, supra (internal citations and quotations omitted).

Next, the real estate agent argued that since he did not own the apartment unit, he did not owe a duty to the family that was renting the unit to fix and manage the repairs. The appellate court rejected this argument too…because of the undertaker’s doctrine. Once the real estate agent volunteered, even if gratuitously, to fix the problems and manage the repairs, he assumed a duty to exercise reasonable care in performing those services.

It is great to be a swell guy. But, when you agree to undertake a service, even if that service is nothing but a good deed you are performing, you have a duty to use reasonable care in performing that service to prevent harm to the beneficiary of that service.

THERE ARE TIMES AN EQUITABLE SUBROGATION CLAIM IS THE MOST PRACTICAL RECOURSE FOR REIMBURSEMENT

Posted on April 22, 2018April 27, 2020 by Edward Garber

Equitable subrogation is a claim that can be pursued when a party (referred to as the subrogee) pays for damages to protect its interest–perhaps to mitigate its own exposure–seeks reimbursement from another party primarily liable for the damages. There are times a party seeking reimbursement for purely economic losses is best able to pursue an equitable subrogation claim, as opposed to a common law indemnification or negligence claim.

Equitable subrogation is generally appropriate where: (1) the subrogee made the payment to protect [its] own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 43 Fla.L.Weekly D868a (Fla. 2d DCA 2018) quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Equitable subrogation is not dependent on a contract—it is simply an “equitable remedy for restitution to one [the subrogee] who in the performance of some duty has discharged a legal obligation which should have been met, either wholly or partially, by another.” Tank Tech, Inc., supra, quoting W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5^th DCA 1986).

As shown in the recent decision below, there are times an equitable subrogation claim will generate more traction for purposes of a reimbursement claim than a negligence claim or common law indemnification claim, because an equitable subrogation claim does not require the party seeking reimbursement to show a duty is owed to it by the party it is seeking reimbursement from.

The recent decision of Tank Tech, Inc. involved damage to underground petroleum storage tanks at Circle K locations. Company “A,” the subrogee, had been hired by Circle K to retrofit existing tanks by adding an interior wall inside of the tanks. Company “B” was separately hired by Circle K to test the interstitial space between the new interior wall installed by Company “A” and the existing tank wall. There was no contractual relationship between Company “A” and Company “B.”

After the tanks were retrofitted, Circle K notified Company “A” that the modified tanks were damaged and failing. Although Company’s “A” investigation revealed the failure was the result of Company’s “B’s” testing methodology, Company “A” nevertheless repaired the damage to the tanks because its contract with Circle K required it to do so regardless of whether the damage was caused by a third party, such as Company “B.”

Company “A” then sued Company “B” for reimbursement of its repair costs under various claims, one of which was equitable subrogation. Each party had expert opinions that pointed to the other for the cause of the tanks’ failure and damage. The trial court granted a motion for summary judgment in favor of Company “B” finding that equitable subrogation did not apply. This summary judgment was reversed on appeal as the Second District maintained that there were factual issues supporting the basis of the equitable subrogation claim:

Tank Tech’s [Company “A”] contract with Circle K obligated it to repair damages to the USTs [tanks]. But Tank Tech’s contractual obligation to Circle K did not convert Tank Tech into a “volunteer” to pay for damages caused by a third party and thus did not prevent the application of the equitable subrogation doctrine. Instead, Tank Tech was merely fulfilling its legal obligation to Circle K which was a necessary means of protecting itself from liability to Circle K. And Tank Tech, by virtue of Dr. Cignatta’s affidavit [expert opinion establishing Company “B” caused failure to tanks], established a genuine issue of material fact regarding whether Tank Tech or Valley Tank [Company “B”] was primarily liable for the damages. If Tank Tech is ultimately successful in proving that Valley Tank caused the damage to the USTs, then it would be entitled to seek any damages it incurred as a result of having to repair the damaged USTs. To hold that Tank Tech is precluded from pursuing a claim for subrogation would leave Tank Tech without a remedy, a “most unfair and inequitable result.”

Tank Tech, Inc., supra (internal citations omitted).

Negligence and Common Law Indemnification

Relatedly, Company “A” also sued Company “B” for negligence and common law indemnification for repairing tanks it claimed were caused by Company “B’s” testing methodology. The trial court also granted summary judgment in favor of Company “B” on these claims. Unlike the equitable subrogation claim, the Second District affirmed the summary judgment in favor of Company “B” on these claims.

For Company “A” to sustain a negligence claim, it would have to establish that Company “B” owed it a duty. Without a duty owed, there is no negligence claim. Whether there is a duty is a question of law for the court. In this case, when dealing with only economic losses, the relationship between the parties—Company “A” and Company “B”—needs to be examined to determine whether a special relationship exists to warrant creating a duty to protect the economic interests of another. “[I]n order to proceed on a common law negligence claim based solely on economic loss, there must be some sort of link between the parties or some other extraordinary circumstance that justifies recognition of such a claim.” Tank Tech, Inc., supra. Here, the Second District agreed that Company “B” did not owe Company “A” a duty to support a negligence claim:

The reason why the negligence claim fails here is because there is neither a special relationship between Valley Tank [Company “B”] and Tank Tech [Company “A”] nor any extraordinary circumstance that would require imposition of a duty. Tank Tech’s injury did not flow from Valley Tank’s testing of the USTs [tanks]. Instead, Tank Tech seeks to recover the money it spent in repairing the USTs, an expense that was the result of a negotiated contract between Tank Tech and Circle K. There was no contract between Valley Tank and Tank Tech obligating Valley Tank to repair any USTs it damaged during testing or otherwise obligating Valley Tank to repay Tank Tech for the expenses incurred pursuant to Tank Tech’s contract with Circle K. And Valley Tank’s testing did not cause any personal injury or property damage to Tank Tech, the types of injuries for which the common law of negligence has historically permitted recovery.

***

This is simply a case of a party attempting to bring a tort claim to recover monies that it spent as a result of a contractual obligation to a third party. But negligence claims cannot proceed based on a party’s desire to relieve itself from a bad bargain.

Tank Tech, Inc., supra.

Likewise, regarding the common law indemnification claim, “actions for indemnity have been restricted to situations involving either a duty, an express contract, or the existence of active and passive negligence.” Tank Tech, Inc., supra, quoting Hiller Grp., Inc. v. Redwing Carriers, Inc., 779 So.2d 602, 603 (Fla. 2d DCA 2001). Since the Second District already agreed there was no special relationship between Company “A” and Company “B” and, thus, no duty owed, the common law indemnification claim failed for the same reasons as the negligence claim.