INJURED SUBCONTRACTOR EMPLOYEE ASSERTS PREMISE LIABILITY CLAIM AGAINST GENERAL CONTRACTOR

Posted on January 30, 2021January 30, 2021 by Edward Garber

In an interesting opinion, an injured employee of an electrical subcontractor sued the general contractor of a parking garage project under a premise liability theory after being injured when stepping on an uncovered floor drain at the project site. There is no discussion in the opinion as to workers compensation immunity. Rather, the discussion centers on the injured employee’s premise liability claim as to whether the general contractor “breached its duty to maintain the premises in a reasonably safe condition by leaving the drain uncovered and failing to warn of the danger of the uncovered drain.” Pratus v. Marzucco’s Construction & Coatings, Inc., 46 Fla.L.Weekly D186a (Fla. 2d DCA 2021)

The trial court granted summary judgment in favor of the general contractor finding that the drain was open and obvious on the site. The Second District Court of Appeal reversed the summary judgment with a discussion as to premise liability claims, particularly as it pertains to a business invitee, which is what the injured employee of the electrical subcontractor was.

First, the Second District held that as a business invitee, the general contractor owed the injured employee two duties: “(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care. ” Pratus, supra (internal quotations and citation omitted).

Second, the Second the Second District held that “[t]he obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” Pratus, supra (internal quotations and citations omitted).

Third, the Second District held that the issue was not whether the floor drain was open and obvious, but whether the uncovered floor drain—the alleged dangerous condition—was open and obvious and involves a consideration of “all of the facts and circumstances surrounding the accident and the alleged dangerous condition.” Pratus, supra (internal quotations and citations omitted).

And fourth, the Second District held irrespective of whether the alleged dangerous condition was open and obvious, the general contractor “still had a duty to maintain the premises in a reasonably safe condition if it could have anticipated the harm to [the injured employee] as a result of the uncovered drain.” Pratus, supra (internal quotations and citations omitted). This required the contractor to establish “it should not have anticipated the potential harm to [the injured employee] as a result of the uncovered drain, notwithstanding his knowledge of the danger.” Id.

Does this case open the door for premise liability claims against a general contractor as a possessor of the construction site? It is uncertain because of the lack of discussion of workers compensation immunity. Perhaps this was an issue in the case because there was no workers compensation to cover the inured employee. Or, perhaps this was an argument around workers compensation immunity. Regardless, this case highlights the significance in ensuring there are safety protocols and training in place on every project, no matter how big or small!

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.

OPTICAL ILLUSION SUPPORTING PREMISE LIABILITY CLAIM

Posted on July 5, 2020July 5, 2020 by Edward Garber

Can an uncommon design or mode of construction that creates an “optical illusion” on property create an issue of fact for a premise liability claim? According to the Third District Court of Appeal in Echevarria v. Lennar Homes, LLC, 45 Fla. L. Weekly D1567a (Fla. 3d DCA 2020), the answer is yes.

When it comes to a premise liability claim: “‘A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.’” Echevarria, supra, quoting Racamonde v. Marshalls of Ma., Inc, 56 So.3d 863, 865 (Fla. 3d DCA 2011).

In this case, the plaintiff was visiting a model home from a homebuilder. As she was exiting the home, she could not see the step down from the raised front porch to the adjacent walkway. The plaintiff claimed this created a dangerous condition that she should have been warned about because it created an optical illusion as “the [adjacent] walkway and [raised] porch were both ‘covered by the same colored brick pavers’ and the porch ‘blended in perfectly with the adjacent walkway, making the step invisible to the naked eye as you exited the home.’” Both the plaintiff and homebuilder provided expert reports as to the condition. One of the plaintiff’s experts opined that the landing of the adjacent walkway at the stair was not compliant with Florida’s building code and, as such, this concealed the step’s presence, i.e., created the optical illusion. Notwithstanding, the trial court granted summary judgment against the plaintiff finding that the condition was open and obvious and not inherently dangerous.

The Third District Court of Appeal reversed finding there was a question of fact for the jury whether the homebuilder “through an uncommon design or mode of construction, created a hidden danger on its property [i.e., an optical illusion] that a prudent invitee would not anticipate.” Echevarria supra. The reason being is that “‘an uncommon design or mode of construction creating a hidden danger that a prudent invitee would not anticipate may transform multiple floor levels into an inherently dangerous condition.’” Id. quoting Rice v. Whitehurst, 778 So.2d 1027, 1028 (Fla. 4^th DCA 2001).

PREMISE LIABILITY CLAIMS AND THE DUTY OF CARE OWED TO CONTRACTORS

Posted on January 3, 2015January 3, 2015 by Edward Garber

Unknown Premise liability claims are a concern to persons engaging a contractor (a business invitee) to perform renovation, maintenance, or repair work on property they own or lease. These are claims where a person injures himself / herself on another’s premises and sues the owner (and/or tenant) under theories grounded in negligence. “The crux of a cause of action for premises liability is not the ownership of the premises, but the negligence of the possessor in permitting [business] licensees and invitees to come unwarned to an area where they could foreseeably be injured by a dangerous condition which is not readily apparent.” Phillips v. Erican Manufacturing & Machine, Inc., 40 Fla. L. Weekly D103a (Fla. 5^th DCA 2014) quoting Houssami v. Nofal, 578 So. 2d 495, 496 (Fla. 5th DCA 1991).

In a negligence case, a plaintiff needs to prove the following four elements:

the defendant owes the plaintiff a duty of care;
the defendant breached that duty;
the defendant’s breach of that duty proximately caused damage / injury to the plaintiff; and
the plaintiff suffered damage / injury.

In premise liability claims, an issue oftentimes turns to the very first element, that being whether the defendant (e.g., property owner or tenant) owed the plaintiff (e.g., injured person) a duty of care. If the defendant did NOT owe the plaintiff a duty of care, there can be no negligence claim.

The Duty of Care in a Premise Liability Claim

In Phillips, a company was hired to clean and paint a warehouse’s corrugated metal roof that included cleaning and caulking skylights on the roof. As a worker was working on the roof, he fell through a skylight that had been concealed as it was painted the same color as the roof. While the skylight at-issue was visible from inside the warehouse, it was not visible from the exterior due to the paint. The injured worker sued the owner (amongst others) in a premise liability claim.

As reflected in a prior posting also dealing with an injury from a skylight, an owner that hires an independent contractor is typically not liable for injuries to the contractor’s employees unless: a) the owner was actively participating in the construction in that the owner directly influenced the manner in which the work was performed or b) the owner failed to warn the independent contractor of latent defects / perils that were either known or should have been known to the owner and which were not known by the independent contractor and could not have been discovered by the contractor through the exercise of due care.

This goes to the duty (first element in a negligence action) that an owner owes an independent contractor or any business invitee that an owner invites on his/her premises.

Because the painted skylight was not visible from walking on the roof, the issue was whether locating skylights solely from the roof was a reasonable inspection or whether the contractor should have also located skylights from inside the warehouse. If the contractor should have located skylights from inside the warehouse, then the contractor could have discovered the concealed peril (painted skylight) with due care, thereby defeating his premise liability claim. The Fifth District found that this was an issue for the jury.

What about this twist. The warehouse was leased to a company the owner was an officer of. Could the tenant be liable for premise liability claims? How about the owner if the tenant is the one utilizing the property and invited the contractor on the property? This is important because if a party does NOT possess or have control over the premises, and specifically the requirement to perform maintenance and repairs to the premises, then that party owed no duty of care and should not be liable for a premise liability claim. The Fifth District explained:

“In cases like this, where the facts involve a leased premises, the extent of responsibility for injuries occurring on the leased premises during the term of the lease depends on the extent the owner of the property maintains control over the premises. When the landlord and tenant have a lease that expressly sets forth which party has the power to possess and control the property during the term of the lease, the issue of control is a matter of law.”

Phillips, supra (quotations and internal citations omitted).

Notably, if a lease allows the tenant to make improvements or repairs subject to the owner’s approval, the owner will be deemed to have sufficient possessory interest or control over the leased property to owe a duty to a business invitee. See Russ v Wollheim, 915 So.2d 1285 (Fla. 2d DCA 2005).

THE IMPORTANCE OF SAFETY

Posted on December 1, 2013December 1, 2013 by Edward Garber

Participants in construction NEED to have safety programs and protocols. Many contractors do in order to minimize injury and prevent death and many even employ a safety officer on their projects. Safety protocols are also important to ensure compliance with the Occupational Safety and Health Administration’s (OSHA) health and safety regulations. Safety programs and common contractual provisions require parties to keep their work environment clean and without debris. For example, section 3.15.1 of the AIA A201 General Conditions (2007) provides:

“The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus materials from and about the Project.”

Safety programs are not only important for contractors and subcontractors, but also for those invitees that are invited to the construction project. The case of Skala v. Lyons Heritage Corp., 38 Fla. L. Weekly D2485b (Fla. 2d DCA 2013), exemplifies what can happen if an invitee of a general contractor gets injured from construction debris. In this case, the general contractor on an ongoing residential project was interested in hiring a new tile installer for the project. There was an issue with the performance of the original tile installer. The new tile installer was asked to inspect the installed tile work in order to provide an estimate as to what it would cost to fix and complete the work. A contract was not executed and there was no confirmation that a price would even be reached. During the inspection, the new tile installer tripped and fell on known and obvious construction debris while entering the house and suffered fractures in both of this arms. The new tile installer sued the general contractor for negligence asserting that the contractor failed to maintain the premises in a safe condition. The trial court entered summary judgment in favor of the general contractor.

On appeal, the Second District found that the new tile installer was a business invitee (i.e., a person invited to property by the possessor of the property)–”because Mr. Skala [new tile installer] was a business invitee on the property, Lyons Heritage [general contractor], as the possessor of the premises, owed him a duty, as a matter of law, to maintain the premises in a reasonably safe condition.” Skala, supra (internal quotation omitted).

The general contractor, however, would not be liable for injuries caused by known or obvious dangers, such as the known and obvious construction debris, unless it should have anticipated the injuries despite the known or obvious nature of the dangers. This is referred to as the obvious nature doctrine: “The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” Skala, supra, quoting DeCruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013). Stated differently, the possessor of the property can be held liable for the obvious dangerous condition if he can reasonably foresee that the condition will cause harm and will be encountered by the invitee. Id. quoting Ahl v. Stone Sw., Inc., 666 So. 2d 922, 925 (Fla. 1st DCA 1995) (“A reasonable probability to expect harm to an invitee from known and obvious dangers may arise . . . if the landowner may expect that the invitee will encounter the known or obvious danger, because, to a reasonable person in the invitee’s position, the advantages of [facing the danger] would outweigh the apparent risk.”)

The Second District reversed the summary judgment finding an issue of fact existed as to whether the exception to the obvious danger doctrine applied, that being that the general contractor should have anticipated that the new tile installer would encounter the known and obvious construction debris because, to a reasonable person in the installer’s position, the advantages of facing the construction debris would outweigh the risk.

If the construction debris was not known and obvious to the new tile installer, the general contractor would have also been sued in negligence under a theory that it breached its duty of warning the new tile installer of a latent dangerous condition. See Skala, supra, n. 3 (finding that the general contractor had the duty to warn the new tile installer / invitee of latent dangerous conditions).

This case illustrates one example of the importance of safety. Safety programs should not be taken lightly! Sometimes, with business invitees, it is good practice to have them provide a release before they enter the property to the owner, contractor, and applicable parties.

As an aside, the Concrete Construction Magazine in November 2013 tweeted an interesting 2010 statistic from the United States Department of Labor (the OSHA agency falls within the Department of Labor) itemizing the most common OSHA violations in 2010 were for scaffolding, fall protection, stairways and ladders, personal protective equipment, electrical, health hazards, general provisions, and trenching.

ASSERTING NEGLIGENCE AGAINST A CONSTRUCTION-MANAGER OR OWNER’S REPRESENTATIVE

Posted on August 14, 2011August 14, 2011 by Edward Garber

Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011) is an interesting personal injury case that touches upon whether a contractor’s qualifying agent can be individually liable for acts and omissions of the limited liability construction company he/she qualifies and whether a construction company can be held liable for negligence to a third party.

In this case, an owner wanted to build a new house. The owner hired a licensed construction company to essentially serve as a construction manager-agency (not-at-risk), although this case does not use this term. In other words, the owner would contract directly with all of the trade subcontractors, but it was the construction company that helped the owner obtain a residential permit, referred trade subcontractors directly to the owner, and supervised, consulted, and coordinated the trade subcontractor’s work, and assisted with inspections at the project. The construction company undertook many of the tasks a general contractor would ordinarily undertake except for obtaining the residential permit and contracting directly with the trade subcontractors.

One of the trade subcontractors the owner hired was a framer. This happened to be the only, or one of the only, subcontractors that did not come referred to the owner by the construction company. During construction, it was discovered that a beam had been incorrectly installed on the second floor. The construction company (through its qualifying agent) met with the framer to discuss a solution to this issue, and it was during the correction of this issue that a carpenter working for the framer fell from the second floor severely injuring himself.

The injured worker sued the construction company and its qualifying agent under a negligence theory saying, among other things, they had a duty to perform all work in a competent, safe and workmanlike manner and they breached this duty which resulted in the injured worker falling. The construction company and its qualifying agent moved for summary judgment and the trial court granted summary judgment in favor of the qualifying agent dismissing him from the lawsuit, but declined to enter summary judgment in favor of the construction company.

On appeal, the Second District held that the trial court denying summary judgment in favor of the construction company but granting it in favor of its qualifying agent was inconsistent. The Second District held that:

“[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. The same rule applies to limited liability companies. Thus, to the extent that the LLC could be held liable for its acts or omissions in connection with the construction of the Hoffmans’ [owner] residence, Mr. Fournier [qualifying agent] may be held liable as well.” Cannon, 875 So.2d at 881 (internal citations omitted).

Under the Second District’s rationale, if the construction company owed a duty of care to the plaintiff injured worker, then presumably, so did the qualifying agent. To determine whether the company owed a duty of care, the Second District focused on whether the construction company was serving in the role of the general contractor. The Court focused on many of the facts previously mentioned that a construction manager-agency would undertake, specifically, the coordination, communication, and supervising of construction workers and activities at the job site (despite not contracting with any of the trade subcontractors). To that end, the Court expressed:

“The circuit court continued by correctly identifying the critical point as the extent of the LLC’s control over and supervision of the job site. A person or entity that controls a supervises the job site has a duty to provide workers on the job with a safe place to work. If the LLC assumed such a duty voluntarily or by contract, it may be held liable to workers who sustain injuries on the job caused by a breach of that duty without regard to whether the LLC was acting as a general contractor.” Cannon, 875 So.3d at 882.

Accordingly, the Second District reversed the summary judgment entered in favor of the qualifying agent (because if his construction company could be negligent, then so could he under the Court’s rationale.)

Outside of the personal injury context, this case can be used to support a negligence argument against an owner’s representative or construction manager-agency by a non-privity subcontractor, etc. The duty owed would be that the entity is essentially acting as a general contractor (or has similar job-related functions), but just without the title. Therefore, the entity owes a duty to ensure that construction is properly supervised, coordinated, and managed in a competent, safe and workmanlike manner.

Furthermore, this case can be used to support an argument against a qualifying agent to hold that the qualifying agent should be held individually liable for the torts of the construction company he/she qualifies. This argument would carry more weight if the company, similar to the company in Cannon, was a sole-owned company with the qualifying agent serving in the role of the owner, qualifying agent, and lone employee of the company. However, even if this were not the case, if the qualifying agent is the one overseeing construction activities, then arguably, if their company commits a tort, they too can be held liable for participating in the tort, especially considering companies can only act through people.

OWNERS SHOULD BE CONCERNED WITH PREMISES LIABILITY CLAIMS ARISING FROM INJURIES DURING CONSTRUCTION

Posted on July 3, 2011July 3, 2011 by Edward Garber

Injuries are always a concern on construction projects due to the inherent risks associated with performing work on a project. Owners, in particular, should be concerned with injuries on their project because they are sometimes sued for negligence under theories of premises liability when injuries are sustained on their project.

In order to best allocate the risk of injuries, owners should, among other things, contractually (i) specify that the contractor is performing work as an independent contractor, (ii) specify that the contractor is solely responsible for its means and methods of construction, (iii) specify the contractor’s scope of work, especially if the scope is unrelated to new construction, but involves a remediation, renovation, repair, or maintenance scope, and (iv) include other provisions concerning the contractor’s responsibility for safety. This is beside the owner ensuring that the contractor has sufficient liability insurance and workers compensation insurance prior to the contractor performing any work.

The case of Strickland v. Timco Aviation Services, Inc., 36 Fla. L. Weekly D1420a (Fla. 1st DCA 2011), discusses an owner’s potential liability for injuries sustained to its contractor’s employee. In this case, an owner hired a contractor to pressure wash the roof of an airplane hangar and perform maintenance to the skylights on the roof. While the contractor’s employee was pressure washing the roof, he accidentally got chemical in his eyes causing him to step on a skylight and fall five stories to the ground. The employee sued his employer (the contractor) in addition to the owner alleging that the owner was negligent because, among other reasons, the skylights could not withstand 200 pounds of pressure and were indistinguishable from the roof.

The First District Court of Appeal, in examining an owner’s liability for injuries, maintained:

“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 the work. 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. Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors.” See Timco (internal citations omitted).

Under the first exception, an owner can be liable if it imposes “such right of supervision or direction that the contractor is not entirely free to do the work his own way.” See Timco quoting City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).

Under the second exception, an owner can be held liable if the owner negligently creates or negligently approves the dangerous condition causing the injury. See Timco quoting City of Miami, 509 So.2d at 346. However, even under this exception, an 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.” See Timco citing Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla. 1953).

In Timco, the First District affirmed summary judgment in favor of the owner holding the owner not liable for the contractor’s employee’s injuries. The Court held that the danger of falling through the skylights was an obvious risk considering the contractor was hired to perform maintenance and repair work to the skylights. The owner did not have any duty to notify the contractor of the risks posed by performing work on the skylights since this was an integral part of the contractor’s scope of work. Further, the Court held that the owner had no liability due to the employee’s argument that the skylights could not withstand 200 pounds of pressure because there was nothing to suggest the owner knew or should have known of this alleged design defect.

The risk of injuries is one of the many risks that owners consider when hiring a contractor to perform work — any scope of work — on their project. Ensuring that such risks are contemplated and best allocated is vital and a chief reason why attorneys should be utilized in the drafting of construction contracts. If an owner has knowledge of a dangerous condition on their property, they should warn and notify the contractor they are hiring as well as their attorney so that this risk can be addressed in the contract. Notwithstanding, an owner should certainly not engage in any specific act during construction or immediately prior to construction that can cause or increase the risk of injury on their project.