Morales v. Weil

44 So. 3d 173, 2010 Fla. App. LEXIS 12717, 2010 WL 3418326
CourtDistrict Court of Appeal of Florida
DecidedSeptember 1, 2010
DocketNo. 4D08-4169
StatusPublished
Cited by19 cases

This text of 44 So. 3d 173 (Morales v. Weil) 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
Morales v. Weil, 44 So. 3d 173, 2010 Fla. App. LEXIS 12717, 2010 WL 3418326 (Fla. Ct. App. 2010).

Opinion

DAMOORGIAN, J.

Humberto Morales appeals the trial court’s adverse final summary judgment on his claim of negligence and the directed verdict on his premises liability claim in favor of the Weils. We affirm both actions taken by the trial court.

During the course of the pretrial proceedings and trial, the following facts were adduced. The Weils owned property which included a horse barn. Two hurricanes came through the property, which caused substantial damage to the barn. The damage included a hole through the roof which was visible to the naked eye. The Weils met with Nicholas Garrett, an independent contractor, to discuss the demolition of the damaged barn and the construction of a new barn. Mr. Weil rejected the part of Garrett’s proposal to demolish the damaged barn, but the Weils agreed to hire Garrett to construct a new barn.

Morales testified that the Weils hired Garrett, in a side deal, to demolish the old bam so that it looked as if the hurricanes had destroyed it.1 Morales’ father, Adrian, worked for Garrett and was the foreman on the Weils’ project. Adrian testified that two days prior to Morales’ injury, he went with Garrett to the Weils’ home to discuss the barn’s demolition with Mrs. Weil. During this visit, Mrs. Weil allegedly instructed Garrett to throw the panels of the barn’s roof “here and there” in order to create the impression that the [176]*176damage was caused by a hurricane. Garrett then instructed Adrian to have his crew go on the roof and begin the demolition in accordance with Mrs. Weil’s instructions. Two days later, Adrian, Morales, and several other Garrett employees went to the Weils’ home to demolish the barn’s roof. The employees could see that the barn was visibly damaged. Nonetheless, they climbed onto the roof and began to demolish it. Shortly thereafter, Morales fell through a weakened roof panel. As a result of the fall, Morales suffered injuries.

Morales brought suit against the Weils claiming that (1) they were, negligent in failing to protect him from injury and (2) they failed to provide a safe place to work by maintaining the premises in a reasonably safe condition. The Weils moved for summary judgment on both of these counts. The trial court granted the motion as to the general negligence claim, but denied summary judgment on the premises liability claim. At the conclusion of the trial, the Weils moved for a directed verdict on the premises liability claim. The trial court entered a directed verdict against Morales. This appeal follows.

Our analysis begins with the trial court’s summary judgment on the negligence claim. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58, 60 (Fla. 1st DCA 1999)). A trial court’s final order granting a motion for summary judgment is reviewed de novo. Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 595 (Fla. 4th DCA 2008) (citing The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006)).

We have held that, “[a]s a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.” Johnson, 985 So.2d at 595 (citing Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999) (holding that resort owner was not liable on general negligence or premises liability claims for injuries sustained by an independent contractor who had been hired to paint a flag pole)).

An exception to the general rule exists if the owner has been “ ‘actively participating in the construction to the extent that he directly influences the manner in which the work is performed.’ ” Johnson, 985 So.2d at 595-96 (quoting Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)). An owner may retain various controls over an independent contractor’s work without usurping the shield of liability. See City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987). Indeed, the amount of control needed to pierce the shield of liability must be extensive:

“It is not enough that [the owner] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.”

Cecile Resort, Ltd., 729 So.2d at 448 (quoting Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518, 522 (Fla. 3d DCA 1998)).

[177]*177In Perez, the City of Miami hired an engineer to monitor a construction site where independent contractors were building a new police station. 509 So.2d at 344-45. The engineer was hired to observe the quality of the materials used and the contractors’ workmanship to ensure compliance with the plans and specifications for the job. Id. at 347. The engineer did not have the authority to direct or influence any of the independent contractors’ workers, nor could he tell them how to do their job. Id. One of the workers was injured when he fell while disassembling scaffolding. Id. at 344. The Third District held that the city was not an active participant on the job because the engineer they hired was present on the worksite only in a supervisory capacity. Id. at 348-50. Thus, the city was not liable for the worker’s injuries. Id. at 348-50 (noting that “participation in construction involves actual involvement in directing the construction methods utilized by the contractor.”).

In Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417, 419, 421 (Fla. 3d DCA 1985), an owner/general contractor was building homes in a development where an employee of an independent contractor was injured while working on one of the homes. Cadillac had a staff of field supervisors who oversaw, directed, and coordinated the construction work. Id. at 421. The superintendent on the job made daily progress reports to Cadillac and sometimes became physically involved in the construction project. Id. Additionally, Cadillac acquired the necessary permits for the project. Id. The Third District recognized that an owner has a general power to inspect the work of an independent contractor to ensure that the work conforms to the contract without becoming an active participant. Id. However, the court held that Cadillac went beyond these powers because it actively directed and coordinated the work. Id. Thus, Cadillac was liable for the injuries to the worker. Id.

Finally, in St. Lucie Harvesting and Caretaking Corp. v. Cervantes, 639 So.2d 37, 38 (Fla. 4th DCA 1994), an owner of a citrus grove employed an independent contractor to pick and transport fruit on the owner’s land. One of the owner’s foremen directed one of the independent contractor’s employees to pick up fruit at a different grove which was a couple miles away. Id. The employee was driving a “goat” vehicle loaded with citrus, which had a higher tendency to tip over when full. Id. at 38.

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Bluebook (online)
44 So. 3d 173, 2010 Fla. App. LEXIS 12717, 2010 WL 3418326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morales-v-weil-fladistctapp-2010.