Brockney v. Centel Cellular Co. of Fort Walton Beach Ltd. Partnership

950 So. 2d 445, 2007 Fla. App. LEXIS 1545, 2007 WL 412591
CourtDistrict Court of Appeal of Florida
DecidedFebruary 8, 2007
DocketNo. 1D05-4168
StatusPublished

This text of 950 So. 2d 445 (Brockney v. Centel Cellular Co. of Fort Walton Beach Ltd. Partnership) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brockney v. Centel Cellular Co. of Fort Walton Beach Ltd. Partnership, 950 So. 2d 445, 2007 Fla. App. LEXIS 1545, 2007 WL 412591 (Fla. Ct. App. 2007).

Opinions

WOLF, J.

Marsha K. Brockney, appellant and the plaintiff in the trial court, challenges a final summary judgment in a negligence action in favor of appellee, Centel Cellular Company of Fort Walton Beach, the defendant in the trial court. The issue is whether the trial court erred in granting a summary judgment on the basis that appellee owed no duty to the plaintiffs decedent under the unique facts of this case. We uphold the trial court’s decision determining that a defendant who hires an independent contractor to perform work on rural land belonging to the defendant is not hable to an employee of that contractor who is injured when: 1) the injury occurred off the premises where the work is being done; 2) the alleged dangerous condition does not exist on the property where the work is being done; 3) any connection between the land where the work is being [447]*447done and the location where the injury occurs is incidental; and 4) the defendant could not reasonably have been expected to know that there was any connection between the dangerous condition and defendant’s property.

Appellant is the personal representative of the estate of Rodney Brockney. Appellant contends Centel Cellular is hable for the death of Randy Brockney who, while riding an ATV, struck a cable that was strung across a dirt road which Centel Cellular did not own.- The cable was attached to. a tree, the base of which is located approximately one foot onto Centel Cellular’s property. However, this encroachment was only discovered by a professional survey conducted at the request of appellant after the accident. The location of the encroachment is approximately 335 feet north of the road used for access to the Centel Cellular tower at which the decedent had been working before the accident. The decedent was an employee of an independent contractor who had contracted with Centel Cellular to perform work on a cellular telephone tower.

The cable in question was placed across the roadway by an employee of an adjoining-property owner, Cooke, to keep poachers off his land and prevent dumping on that property. The person that placed the cable and the owner of the adjoining property did not believe any portion of the cable was on Centel’s property. They never received Centel’s consent to place the cable across the roadway. Centel Cellular employees had seen the cable before the accident and did not believe any portion of it was on Centel’s property. The west end of the cable was attached to a four-inch oak stump, which was approximately 1.08 feet west of the “west right-of-way line of the easement” and about one foot' south of Centel’s north property line, meaning that the stump was on Centel’s property. The east end of the. cable was attached to a five-inch oak tree trunk on property owned by Cooke.

On August 1, 2005, the trial court entered the Final Summary Judgment at issue on appeal, in which it again found that Centel owed no duty to the decedent under the facts of this case. The court noted that the parties had been unable to find any precedent expressly establishing a duty on Centel’s part “to know the metes and bounds of its property with the exactitude which would have been required in this case to recognize the offending cable was tied to a tree on Centel Cellular property, even if its potentially hazardous nature was recognized.” The court found that the exceptions to the general rule that a property owner who hires an independent contractor to perform work on his property is not liable for injuries sustained by the contractor’s employees discussed in Houk v. Monsanto Co., 609 So.2d 757 (Fla. 1st DCA 1992), were inapplicable to this case. Specifically, the trial court found that the exception that a property owner must warn or protect an independent contractor against potential dangers on the premises about which the property owner had actual or constructive knowledge did not apply because Centel did not have a threshold duty to determine whether the cable was attached to a tree located on its property. After noting that the only conceivable way for Centel to know whether the cable was attached to a tree on its property was by obtaining a professional survey, the trial court indicated that it was unaware of any precedent requiring Centel to suspect that the cable was improperly attached to its property or, even if it developed such a suspicion, to incur the expense of a professional survey to confirm or dispel its suspicion.

We find that the trial court order is well reasoned. Because whether Centel had a [448]*448duty of care to the decedent in this negligence action is a question of law, see Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005), the trial court’s ruling on Centel’s motion for summary judgment is subject to de novo review by this court. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (stating that a trial court’s ruling on a summary judgment motion that poses a purely legal question is subject to de novo review on appeal).

In Mozee v. Champion International Corp., 554 So.2d 596 (Fla. 1st DCA 1989), the court set forth the law related to the duty of an owner to employees of an independent contractor that the owner hires.

It is well established in Florida law that an owner who hires an independent contractor is generally not liable for injuries sustained by that contractor’s employees.
There are, however, two principal exceptions to this rule. First, an owner may be held liable if he interferes or meddles with the job to the extent of assuming the detailed direction of it, and thus become[s] the master of the independent contractor’s employee. Second, if the owner has been a passive non-participant, in order to impose liability one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the contractor’s employee, must be established.
A person who is having work done on his premises by an independent contractor and has actual or constructive knowledge of latent or potential dangers on the premises owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers to employees of the contractor and subcontractor who are without actual or constructive notice of the dangers. See Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953), citing 57 C.J.S. Master & Servant § 606.

Id. at 597-98 (citations omitted; emphasis added); see also Holsworth v. Fla. Power & Light Co., 700 So.2d 705, 707-08 (Fla. 4th DCA 1997); Hawkins v. Champion Inti Corp., 662 So.2d 1005, 1007 (Fla. 1st DCA 1995); Indian River Foods Inc. v. Braswell, 660 So.2d 1093, 1096 (Fla. 4th DCA 1995); Houk, 609 So.2d at 759.

Because there is no evidence that Centel interfered or meddled with the work of its independent contractor, our analysis focuses on the second exception to the general rule that an owner is not liable for injuries sustained by an independent contractor’s employees.

First and most importantly, neither the injury or the dangerous condition occurred on Centel’s premises. The dangerous condition was the height of the wire and the failure to properly warn of the wire strung across the dirt road; the injury occurred on that road. The road was not on Centers property.

Appellant relies on several cases, including Thompson v. Gallo, 680 So.2d 441 (Fla. 1st DCA 1996), and

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950 So. 2d 445, 2007 Fla. App. LEXIS 1545, 2007 WL 412591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brockney-v-centel-cellular-co-of-fort-walton-beach-ltd-partnership-fladistctapp-2007.