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CASE NOTE – Landowner’s Duty to Warn Independent Contractors of Open and Obvious Dangers

By: Jeffrey Glassman Esq. & Chance Arias Esq.

Property owner under no duty to warn independent contractor of open and obvious dangers encountered while performing work under the contract, and an expert affidavit cannot establish a factual question regarding the existence of that duty.

Florida courts have routinely recognized that, “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.” Strickland v. TIMCO Aviation Services, Inc., 66 So.3d 1002, 1006 (Fla. 1st DCA 2011).  There are two recognized exceptions to this general rule.  First, if an owner actively participates in the work, or exercises direct control over the work and fails to exercise that control with due care, the owner may be held liable. Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518, 521 (Fla. 3d DCA 1998). Second, where a danger is concealed, and not inherent in the work being performed by the contractor, an owner may be held liable if it fails to warn the contractor of a hidden danger which is unknown to the contractor, or could not be discovered by the contractor through due care. Id.

In April 2012, Rolling Shield, a hurricane shutters and awnings manufacturer, leased a warehouse from Sandel, Inc (“Sandel”). Fuentes v. Sandel, Inc., 189 So.3d 928, 930-31 (Fla. 3d DCA 2016). Rolling Shield thereafter engaged Shade Technology, Inc. (“Shade”) to paint the roof of Sandal’s warehouse. Id. at 931. In turn, Shade subcontracted its work to Edelesca Services, Inc., a company owned by Edelberto Escalera Perez (“Perez”). Id.  Before starting the work, Perez and his assistant met with representatives from Sandel and from Shade to discuss the scope of the work; to obtain general safety instructions, including a requirement to be tethered to a safety rope at all times; and to be warned of the presence of multiple skylights that would not be able to support their weight. Id.  That evening, while Perez and his assistant were cleaning their materials, Perez stepped on, and through one of the skylights while he was untethered from his safety rope. Id. The resulting fall was fatal. Id.

Caridad Blanco Fuentes, individually and as Personal Representative of the Estate of Edelberto Escalera Perez, brought suit against the owner and lessor of the warehouse. Id. The Estate alleged that Sandel and Rolling Shield had breached their duty of care to warn Perez of the danger posed by the skylights and were responsible for his death “because they controlled, managed, and maintained the warehouse premises, and because Sandel owned and Rolling Shield leased the premises.” Id. The Estate further alleged, with support from an expert affidavit, “that Sandel and Rolling Shield were negligent by failing to comply with the building code, maintain the skylight, provide for a guard or screen around the skylight to prevent [Perez] from stepping on the skylight, and warn [Perez] of the danger.” Id.

Both defendants moved for summary judgment.  Rolling Shield argued “that it could not be held liable because [Perez] was an independent contractor, and that, at most, [it] had a duty to warn—which was fully discharged.” Id. Sandel joined, “adopting the arguments made by Rolling Shield.” Id. The Estate opposed, arguing “that Rolling Shield had a duty to maintain the premises in a safe condition, Rolling Shield exercised control over [Perez’s] work and actively participated in the work, and [Perez] died as a result of a dangerous condition that was not related to the work he was hired to perform.” Id. The Estate also claimed “that the warnings given to [Perez] did not insulate Rolling Shield from liability, but instead created an issue of comparative negligence for the jury.” Id.  To support the arguments raised in its opposition, the Estate filed the affidavit of a licensed architect and registered building inspector that attempted to “set forth legal conclusions and provided an opinion on how to apply a legal standard.” Id. at 931-32.

On these facts, the trial court granted Defendants’ motions, held that the Defendants’ did not owe Perez a duty of care, and independently struck the affidavit of the Estate’s expert. Id. Upholding the trial court’s decision, the Third District Court of Appeal first reiterated the general rule regarding the duty owed to independent contractors by a property owner, as well as the two recognized exceptions. Id. Finding that neither exception applied, the Third DCA held: 1) that the Estate failed to demonstrate that the employer “actually exercise[d] control over the manner in which the independent contractor’s work was performed,” Id. at 933 (citing Sterling & Mgmt., Inc. v. Gitenis, 117 So.3d 790, 794 (Fla. 4th DCA 2013) (“[m]erely exercising a general right to recommend a safe manner for the independent contractor’s employees to perform their work is insufficient to subject a party to liability.”); and, 2) that the alleged danger posed by the skylights was “open and apparent and [Perez] actually knew about the danger they posed.” Fuentes, at 934.  In further support of the Third DCA’s refusal to apply the second exception, it pointed to Perez’s familiarity with the job site, noting that he had been there on several prior occasions; and the easily identifiable nature of the skylights, which “were placed in a pattern on the roof, a different color and material than the roof, and marked with a black border.” Id. Moreover, the Third DCA noted that Perez and his assistant were specifically warned of the danger posed by the skylights and that Rolling Shield and Sandel provided the men with safety equipment. Id.

In addition to the court tackling the issue of the duty owed to an independent contractor, the court also reviewed the use of an expert affidavit to rebut a motion for summary judgment.  The plaintiff’s retained expert provided a sworn affidavit that contained “legal conclusions and provided an opinion on how to apply a legal standard” in an attempt to raise a material issue of fact to defeat defendant’s motion for summary judgment.  The defendant moved to strike the affidavit, arguing that the affidavit was an inappropriate vehicle utilized by the plaintiff “to instruct the trial court on how to decide questions of law.”  The trial court agreed and struck Plaintiff’s expert’s affidavit and excluded the affidavit for the purposes of the motion for summary judgment.  The Third District Court of Appeals upheld the trial court’s ruling holding that the duty owed by a defendant is always a question of law and finding that the affidavit was pure legal conclusion.

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