Jeffrey P. Gale, P.A. // Florida Personal Injury Nondelegable Duty Case Study

L1010896.JPGEarlier this year our law firm participated in a one week jury trial against a condominium association and a general contractor seeking damages for personal injuries sustained by our client, an elderly woman. The association hired the general contractor to rebuild a wood dock that ran, unimpeded, behind each condo unit in the community alongside a North Miami Beach canal. The first thing the contractor did was remove every other wood plank through the entire length of the dock. It then undertook to replace every plank, beginning in a small section and working east and west in each direction as the work progressed. After the GC had laid down 100 linear feet of new wood, it got into a dispute with the association over payment issues. This resulted in a complete work stoppage in late July of 2012; the GC performed no more work on the site after this point. Our accident happened on November 11, 2012, nearly four months later.

At the point of the work stoppage, the sections of the dock both to the east and west of the 100 foot completed portion remained demolished. Significantly, neither the GC nor the condominium association ever installed a transverse barrier blocking access to the demolished sections from the completed portion.

Our client did volunteer work to reelect President Obama. On November 11, 2012, five days after the election, she was attending a victory party at a townhome located in the condominium complex. The completed portion of the dock was located behind the townhome. During the party our client exited the rear of the townhome. She turned right, west, on the dock and began a leisurely stroll. She was unaware of the demolition work. Dim ground lighting lined the length of the dock. She was viewing the boats lining both sides of the canal and enjoying the reflections in the water as she walked. With one step she went from the healthy dock into the demolished area, falling straight down through an opening in the dock where there had once been a wood board. Her fall was broken when both arms caught on portions of the deck. This caused her right humerus bone to snap in half. Dangling in the hole unable to extricate herself, she was eventually rescued when someone heard her screams for help.

The jury‟s verdict assigned fault for Plaintiff‟s injuries as follows:

Plaintiff: 10%
Condo Association: 15%
General Contractor: 25%
Party Host: 50%

None of the parties (our client, the condo association and the GC were the parties to the lawsuit; the party host was not) have challenged the jury‟s apportionment of fault. We have filed a motion for entry of final judgment asking the court to make the condo association and the GC jointly and severally liable for 90% of the liability. Our legal theory is that each had a nondelegable duty to maintain safety on the dock. We expect the defendants to oppose the motion.

Florida common law imposes upon a property owner or possessor a nondelegable duty to maintain the premises in a reasonably safe condition, a duty that applies to condominium associations. Florida law also provides that the nondelegable duty to maintain property in a reasonably safe condition may also arise from statutory and contractual obligations, such as those that apply to the condo association in our case.

Similarly, Florida law provides that contractual obligations, such as those that apply to the GC in our case, and the obligations imposed by the issuance of the building permits to the GC, give rise to a nondelegable duty to third persons such as our client to maintain a construction site in a reasonably safe condition.

At trial, Defendants insisted that the verdict form submitted to the jury include questions concerning the negligence of the party host. Notwithstanding the jury‟s findings, Florida law is clear that where a named defendant has a nondelegable duty, or where a named defendant is vicariously liable for the acts or omissions of another, the named defendant cannot escape liability for the acts of others, parties or non-parties, and is not entitled to limit his or her exposure to a judgment by apportioning fault among others. Thus, in our view, Florida law mandates that the final judgment entered in our action must hold both Defendants legally liable for 90% of the damages awarded to Plaintiff, jointly and severally. (The liability of a property owner and contractor are co-extensive under the circumstances of the instant case. See, Cockerham v. Vaughan, 82 So. 2d 890, 891 (Fla. 1955)(where contractor had not finished construction, contractor‟s liability for a hole left in the ground was exactly co-extensive with that of the possessor of the land); Worth v. Eugene Gentile Builders, 697 So. 2d 945, 947-8 (Fla. 4th DCA 1997)(contractors have a “… duty to the whole world to exercise due care” while premises are under their control, and share responsibility for injuries caused on or around a construction site even where the owner retains some possession and control of the premises) (citation omitted).

Florida law is well established that liability for damages cannot be apportioned among others where a defendant is vicariously liable for the acts of others or where that defendant, as in our case, has a nondelegable duty. See, Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 430-1(Fla. 4th DCA 2014) (imposition of liability against mall owner for negligence of cleaning company as assigned by the jury was proper; mall owner is jointly and severally liable for the negligence of others due to its nondelegable duty); Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010)(a party subject to a nondelegable duty is directly liable for the breach of that duty and assignment of liability based upon the tortuous acts of another is not a consideration); Grobman v. Posey, 863 So. 2d 1230, 1235 (Fla. 4th DCA 2003)(apportionment of responsibility not appropriate where named defendant‟s liability is derivative or vicarious); Suarez v. Gonzalez, 820 So. 2d 342, 344 n. 2 (Fla. 4th DCA 2002)(nondelegable duty of landlord precludes shifting of responsibility to negligent contractor as landlord is liable to tenant for contractor‟s negligence); U.S. Security Services Corporation v. Ramada Inn, Inc., 665 So. 2d 268 (Fla. 3d DCA 1995); 38 Fla. Jur. 2d Negligence, §18 (2015)(one on whom the law devolves a duty cannot shift it to another so as to exonerate himself or herself from the consequence of its nonperformance).

The Florida Supreme Court long ago “unequivocally held . . . it is the duty of [a property owner] to use reasonable care in maintaining the premises in a reasonably safe condition . . . [a duty that is] . . . nondelegable in the sense that . . . its performance by another will not necessarily eliminate an owner‟s responsibility.” Mai Kai, Inc. v. Colucci, 205 So. 2d 291, 293 (Fla. 1967), citing, Hickory House v. Brown, 77 So. 2d 249, 252 (Fla. 1955).

Under Colucci and its progeny, the condominium association in our case had a common law nondelegable duty as the owner/possessor of the property to maintain the common elements of the condominium. In addition to its common law nondelegable duty, it had a nondelegable duty imposed by statute and by contract — See, Dixon v. Whitfield, 654 So. 1230, 1232 (Fla. 1st DCA 1995)(nondelegable duties may be imposed by common law, statute or contract) — to maintain common areas and limited common areas of the condominium property. Section 718.111(3) of the Florida Statutes empowers a condominium association to maintain, manage and operate the condominium property, including the common elements, and §718.113(1) specifically provides that a condominium association is responsible for maintaining the common elements. Further, the Declaration of Condominium and Bylaws, introduced into evidence in our case, created contractual obligations that gave rise to a nondelegable duty. See, Vazquez v. Lago Grande Homeowners’ Association, 900 So. 2d 587, 594 n.7 (Fla. 3d DCA 2004)(condominium association had a nondelegable contractual duty it assumed in its agreements with its owners-members and was thus liable for negligence of security company resulting in the death of an owner‟s guest while on the property). The Declaration of Condominium specifically provides:

IX RESPONSIBILITY FOR MAINTENANCE AND REPAIRS . . . .

(b) The ASSOCIATION, at its expense, shall be responsible for the maintenance, repair and replacement of all the common elements and limited common elements, . . . and all other . . . facilities located in the common elements . . . .

Similarly, the general contractor had a nondelegable duty to third persons arising out of its contract with the condominium association. See, Kinney v. R.H. Halt Associates, Inc., 826 So. 2d 328, 330 (Fla. 2d DCA 2002)(building contractor is subject to the same liability to invitee as the owner for harm resulting from its work); Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862 (Fla. 3d DCA 1993)(existence of contract may impose nondelegable duty to third persons); Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959)(same). The contract between the two Defendants in this case, introduced as evidence, specifically created a nondelegable duty on the part of the GC to provide for the protection of third persons:

ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
§10.1 SAFETY PRECAUTIONS AND PROGRAMS §10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.

§10.2. SAFETY OF PERSONS AND PROPERTY §10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

1. Employees on the Work and other persons who may be affected thereby;
. . . .

§10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, . . . .

In addition, the GC had a nondelegable duty arising out of its obligations imposed by the building permit issued to it. See, Bialkowicz v. Pan American Condominium No. 3, 215 So. 2d 767 (Fla. 3rd DCA 1968)(permit cannot be delegated); Worth v. Eugene Gentile Builders, 697 So. 2d 945, 947-8 (Fla. 4th DCA 1997)(contractors have a “… duty to the whole world to exercise due care” while premises are under their control, and share responsibility for injuries caused on or around a construction site even where the owner retains some possession and control of the premises).

The outcome of our motion will have significant consequences. We feel good about our chances.
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