Strickland v. Timco Aviation Services, Inc.

66 So. 3d 1002, 2011 Fla. App. LEXIS 10314, 2011 WL 2570775
CourtDistrict Court of Appeal of Florida
DecidedJune 30, 2011
DocketNo. 1D10-4635
StatusPublished
Cited by10 cases

This text of 66 So. 3d 1002 (Strickland v. Timco Aviation Services, Inc.) 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
Strickland v. Timco Aviation Services, Inc., 66 So. 3d 1002, 2011 Fla. App. LEXIS 10314, 2011 WL 2570775 (Fla. Ct. App. 2011).

Opinion

ROWE, J.

This is an appeal of a final summary judgment entered in favor of Appellees TIMCO Aviation Services, Inc. (TIMCO) and TRIAD International Maintenance Corporation (TRIAD)1 against Appellant, Travis Strickland, who was the plaintiff below in this personal injury action. We affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Strickland was employed by Joye Painting. Joye Painting entered into a contract with TIMCO to perform work on an airplane hangar operated by TIMCO. The proposal submitted to TIMCO provided that Joye Painting would pressure wash the roof of the hangar and perform repair and maintenance on the skylights on the roof.

Joye Painting used a chlorine mixture to pressure wash the roof surface. Strickland testified that he typically pressure washed from the top of the roof down. However, at the time of the accident, he was walking horizontally across the roof to reach a spot he had missed. Strickland stated that mist got behind his glasses and into his eyes, causing them to burn. He opened his eyes, but he could not see; “it was like a whole bunch of white specks were on [my eyes].” Strickland explained that it was at this point that he put his foot down to collect himself. When he did so, Strickland stepped on a skylight and fell five stories to the ground.

As a result of injuries he sustained from the fall, Strickland filed suit against TIM-CO and Donald Kenneth Joye, d/b/a Joye Painting Services,2 alleging that he was injured while working on premises owned by TIMCO and that TIMCO’s negligence was the cause of his injuries. Strickland asserted that TIMCO was negligent because the skylights were indistinguishable-from the roof because of their color, could not withstand 200 pounds of perpendicular pressure, and lacked protective guardrails in violation of Occupational Safety and Health Administration (“OSHA”) and industry standards. Strickland also alleged that TIMCO negligently furnished him with inadequate safety equipment, specifi[1006]*1006cally an inadequate fall protection system. Strickland alleges that he was given a safety harness that lacked a device known as a “rope grab” which would have enabled him to control the amount of slack rope and could have prevented his fall.

TIMCO moved for summary judgment contending that no act or omission on TIMCO’s part caused or contributed to Strickland’s accident. TIMCO asserted that Strickland was an employee of an independent contractor, Strickland knew of the existence of the skylights, and Strickland appreciated the potential consequences of stepping on a skylight. After hearing argument from the parties, the trial court granted the motion for summary judgment in favor of TIMCO.

ANALYSIS

A trial court’s grant of a motion for summary judgment is appropriate where there “is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.” Lomack v. Mowrey, 14 So.3d 1090, 1091 (Fla. 1st DCA 2009). In negligence actions, the question of the duty owed to a plaintiff is always one of law and never one for the jury. Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Accordingly, where a defendant establishes as a matter of law, that no duty is owed to the plaintiff, the trial court may properly grant summary judgment in favor of the defendant. See Jenkins v. W.L. Roberts, Inc., 851 So.2d 781 (Fla. 1st DCA 2003).

Generally, 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. Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). However, there are two exceptions to the general rule. An owner can be held hable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition. See id. Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors. Pertl v. Exit Information Guide, Inc., 708 So.2d 956, 957-58 (Fla. 1st DCA 1997).

Under the first exception to the general rule, “[[liability may be imposed if the owner actively participates and controls the manner in which the work is performed.” Id. “To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).

Strickland argues that the control exception applies here based on TIM-CO’s inspection of the work performed by Joye Painting and by TIMCO’s provision of a safety harness and man lift to Joye Painting.3 However, mere inspection by a property owner of an independent contractor’s work does not amount to control of the work or active participation by the property owner. See Skow v. Dep’t of Transp., 468 So.2d 422, 424 (Fla. 1st DCA 1985); cf. Boatwright v. Sunlight Foods, Inc., 592 So.2d 261, 263 (Fla. 3d DCA 1991). Further, by providing Joye Paint-[1007]*1007mg with a safety harness for use in their work TIMCO did not participate in, influence, or exercise direct control over the work performed by Joye Painting and its employees. Compare St. Lucie Harvesting and Caretaking Corp. v. Cervantes, 639 So.2d 87, 40 (Fla. 4th DCA 1994) (directing “the independent contractor in regard to the amount of fruit to be harvested and from which grove” did not constitute active control), with Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417, 421 (Fla. 3d DCA 1985) (having “a staff of field supervisors who oversaw, directed and coordinated the construction project,” and a superintendent who made daily progress reports and “sometimes became physically involved in the construction” constitutes active participation).

Under the second exception to the general rule, a property owner may be liable for injuries sustained by an employee of an independent contractor “if the owner performs one or more specific acts of negligence.” Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). Specific acts of negligence include “negligently creating or negligently approving the dangerous condition resulting in the injury ... to the contractor’s employee.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987) (citing Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)); accord Houk v. Monsanto Co., 609 So.2d 757, 759 (Fla. 1st DCA 1992).

However, a property owner will be held liable for negligence only with regard to those dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care. Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla.1953); Peril v. Exit Information Guide, Inc., 708 So.2d 956, 957-58 (Fla. 1st DCA 1997).

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Bluebook (online)
66 So. 3d 1002, 2011 Fla. App. LEXIS 10314, 2011 WL 2570775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strickland-v-timco-aviation-services-inc-fladistctapp-2011.