Indian River Foods Inc. v. Braswell

660 So. 2d 1093, 1995 WL 497267
CourtDistrict Court of Appeal of Florida
DecidedAugust 23, 1995
Docket94-1783
StatusPublished
Cited by10 cases

This text of 660 So. 2d 1093 (Indian River Foods Inc. v. Braswell) 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
Indian River Foods Inc. v. Braswell, 660 So. 2d 1093, 1995 WL 497267 (Fla. Ct. App. 1995).

Opinion

660 So.2d 1093 (1995)

INDIAN RIVER FOODS INC.; Becker Groves Inc.; and Becker Holding Corporation, Appellants,
v.
William Keith BRASWELL and Tabetha Braswell, as Personal Representatives of the Estate of Terry Wayne Braswell, deceased, Appellees.

No. 94-1783.

District Court of Appeal of Florida, Fourth District.

August 23, 1995.
Rehearing Denied October 10, 1995.

*1094 Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Fort Lauderdale, for appellants.

William S. Frates, II, of William S. Frates, II, P.A., Vero Beach, for appellees.

FARMER, Judge.

We are asked by this appeal to decide whether a claim by the injured employee of an independent contractor against the owner of the facility at which the contractor was employed should have gone to the jury. We conclude that there is no evidence in the record to support a finding of liability and reverse the denial of the owner's motion for judgment in accord with its prior motion for directed verdict.

Indian River Foods (owner), a subsidiary of Becker Holding, owns a citrus processing plant in Fort Pierce, Florida. Owner contracted with Gulf Machinery Company (Gulf) for the construction of certain improvements and expansions to its citrus plant designed to increase production. The improvements included the design, construction and installation of a feed mill and a number of tanks. This work was designated in section 7 of the contract. At the time of the accident, the work for that section had been billed and paid and the feed mill area had been operational for about 6 months — even though only about half of the required tanks had been *1095 installed and there were still problems in other parts of the plant.

The feed mill chops, presses, and dries orange peels, turning them into livestock feed. The process results in a liquid known as "press liquor" which is composed of sugar, water, and a flammable oil known as "d'limonene." The components of the press liquor are separated in an evaporator. Pipes from that evaporator lead to various tanks. In those tanks, sugars are produced into molasses; water is stored and used to clean the plant; and d'limonene is separated from the water and sold. The water is stored in a condensate water tank, and the d'limonene is stored in a separate tank. Gulf designed, built and installed these tanks, including their pipe fittings.

The process for separating the water from the d'limonene is imperfect, and d'limonene can drain into the condensate water tank rather than its own tank. If the separating process is working well, only trace amounts of d'limonene will be found in the water tank. There was a condensate water tank in the feed mill area. The tank was closed and had a foot-long, 2" diameter drain pipe near the top, with a covered manway for maintenance. The purpose of the drain pipe was to allow rising water to escape from the closed tank.

As originally designed and built by Gulf, the excess water would flow from the drain pipe down to the ground below. Because that situation was unsatisfactory, however, Gulf was required to modify the overflow design. Accordingly, two Gulf employees were instructed to extend the protruding pipe over to another tank where the excess water could be stored.

It was undisputed at trial that, at the time of the incident, the water tank was not marked in any way to indicate that it contained hazardous or flammable material. Before the modification had been effected, owner's inspector told Gulf's supervisor that the 2" diameter pipe as originally designed was insufficient and that a 3" diameter pipe should be used. Gulf's supervisor delegated the task to the same two Gulf employees.

Gulf's supervisor testified that he did not know that the tank contained d'limonene, or that no cutting should be done on the tank without venting or flushing first. He also claimed not to know that d'limonene would be found in the water in the evaporator tank as a natural consequence of the production process. He thought that the d'limonene went into a separate tank. Before lunch, the supervisor spoke to the two Gulf employees about changing the size of the pipe. The two employees returned to the condensate tank after lunch to make the change.

One of owner's employees assisted the two Gulf employees in getting their equipment up on the bridge of the tank. Another one of owner's employees controlled the evaporator and the water levels in the tank. One of the two Gulf workers asked him to lower the water level in the tank so that the hot water would not splash on them when they cut the tank. Owner's employee lowered the water level and then switched the valve on the evaporator to get molasses back. As an expert later testified, the agitation caused by the raising and lowering of the water levels placed the d'limonene-water mixture into the explosive range.

As decedent cut into the surface a big flame shot out of the tank, setting him and the other employee on fire. It blew out the bottom of the tank and rocketed the remainder into the air, with the remnants landing some 50-75 yards away. Both Gulf employees were severely burned by the explosion.

One of owner's defenses was that the accident could have been avoided if the two Gulf employees had vented and purged the water tank before cutting into it. The tank could have been vented by removing the manway cover. It could have been purged by filling the tank up with water to force out the d'limonene vapors, by draining and washing the tank, or by blowing an inert gas through the tank. Decedent did not flush the tank; nor did he vent or purge it because he thought the tank contained water only. Gulf safety procedures instruct, however, that a condensate water tank should always be vented and purged.

The case went to the jury with a stipulation as to the amount of both economic and non-economic damages, and thus the jury was asked to consider liability only. The *1096 jury apportioned fault as follows: decedent 10%; Gulf 70%; and owner 20%. Based on the damages stipulation, the court entered judgment for decedent's estate and against owner for its pro rata share of the agreed damages. Owner timely moved post-trial for judgment in accord with its prior motion for directed verdict. This motion was denied, and owner appeals. We reverse.

The general rule is that an owner is ordinarily not liable for work injuries to employees of an independent contractor. Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847 (1940); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla. 1977). One exception is that the owner has a duty to warn employees of an independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition on his premises. Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla. 1953); Lake Parker Mall, 327 So.2d at 123. Under this exception, if the owner of the property knows of a dangerous condition that the employees are likely to encounter, the owner must either give warning of, or use ordinary care to furnish protection against, such dangers to the employees of the contractor who lack actual or constructive knowledge of the hazards. Florida Power & Light Co. v. Robinson, 68 So.2d at 410-11.

The duty to warn of the dangerous condition is sufficiently discharged if the owner gives appropriate notice to the independent contractor's supervisory personnel. Mozee v. Champion Int'l Corp., 554 So.2d 596 (Fla. 1st DCA 1989), rev. denied, 564 So.2d 487 (Fla. 1990); City of Miami v. Perez,

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Bluebook (online)
660 So. 2d 1093, 1995 WL 497267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indian-river-foods-inc-v-braswell-fladistctapp-1995.