Opinion
No. 97-2167
Opinion Filed March 5, 1999 JANUARY TERM 1999
Appeal from the Circuit Court for Orange County, Alice Blackwell White, Judge.
Luis Prats and Hardy L. Roberts, III, of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Tampa, and Donald L. O'Dell, of McDonough, O'Dell, Beers, Wieland Krakar, P.A., Orlando, for Appellant.
James O. Cunningham and Tracy Troutman Cheek, of Billings, Cunningham, Morgan Boatwright, P.A., Orlando, for Appellees.
Appellant, Jim Walters Homes, Inc. ["JWH"], appeals a judgment rendered against it and in favor of the Estate of Richard Walker in a wrongful death case after a jury trial. On appeal, JWH asserts three errors were made below: entry of a partial summary judgment that, at the place and time of the incident in question, JWH had a duty to maintain the site of the accident in a safe condition; the refusal of the lower court to allow the assertion of the workers' compensation immunity defense shortly before trial; and, finally, the submission to the jury of a second, special verdict form on damages after review of the first verdict form indicated there might be an error in the jurors' reduction to present value. As to the latter, we find no error. As to the second, we conclude that the trial court acted within the scope of its discretion under the circumstances of this case. As to the partial summary judgment, however, we are bound to agree with the appellant that the lower court erred in issuing its partial summary judgment. Accordingly, we reverse and remand for a new trial.
The facts underlying this case, presented over seven days of trial, are involved and would require a good deal of space to chronicle fully. The following is a summary of the facts in order to place the contested ruling of the trial court in perspective.
The business of JWH is to build homes to varying states of completion, depending on the specific requirements of the owner. This enables the owner to perform substantial portions of the work and use his "sweat equity" to offset the cost of construction.
In this case, JWH entered into a home construction contract with Mary Knott on August 20, 1993 [the "contract"]. The contract obligated JWH to build the shell (Phase I) and then turn the project over to Mary Knott for construction of the flooring, insulation and drywall (Phase II). After Mrs. Knott finished her portion of the work, JWH was to return and finish minor trim work that could not be completed until the Knotts performed their portion of the work (Phase III).
JWH substantially completed its portion of the work in November 1993 and, at that point, released the home to the Knotts. From that point forward, the Knotts were in actual possession of the property and, over the ensuing eighteen months, performed their portion of the work without participation or assistance from JWH. During this time, the Knotts hired their own subcontractors to perform portions of the work and exercised control over the job site. Also during this time, JWH's original permit expired and Mrs. Knott, without JWH's aid or participation, renewed the permit at her expense on October 7, 1994 and again on May 26, 1995. The provision of temporary electrical power to the site was the obligation, by contract, of the Knotts. Rather than pay for a temporary power pole and line, the Knotts provided temporary electrical power to the home by running extension cords from an old shed they owned on the property to the new home.
In September 1995, at the request of the Knotts, JWH called Walker Plumbing, the original plumbing subcontractor, to return to the site and complete the plumbing "trim-out" work. Richard Walker was the individual who came to the site to perform the trim-out work. The "trim-out" consisted of installing the sinks and hooking up the hot water heater and interior plumbing fixtures to the exterior water sources. This work could be performed in approximately one-half day. Completion of the trim-out work did not require Mr. Walker to go underneath the house.
On the morning of September 21, 1995, JWH's construction supervisor, Rob Larsen, visited the home and noticed, for the first time, the extension cords which Mr. Knott had placed on the site. Mr. Larsen also noticed that the cord was clipped into the electrical panel box of the new house and he told Mr. Knott that this was a dangerous condition and that he should remove the cord.
During the same visit, Mr. Knott informed Mr. Larsen that he intended to add an ice maker to the house and asked if he would recommend a contractor to perform the work. Mr. Larsen explained that since Mr. Walker would be coming to the project site in the afternoon, Mr. Knott might be able to establish a separate arrangement with him to install the ice maker.
On the afternoon of September 21, 1995, Mr. Walker arrived to complete the plumbing trim-out work on the home. Although JWH required Walker Plumbing to have its own portable generator and to provide its own temporary electricity, Mr. Walker used the Knotts' extension cord to power his drill while working in the kitchen and one of the bathrooms of the new house that afternoon.
That evening, after completing the trim-out work he was required to perform under the contract, Mr. Walker went underneath the house to install the ice maker as requested by Mr. Knott. While under the house and working on the ice maker, Mr. Walker was electrocuted. Mr. Walker was not using any electrical device at the time of his death, and Mr. Knott testified that at the time Mr. Walker was working under the house, the extension cord was lying on the ground some fifteen to twenty feet away from Mr. Walker.
At some point before Mr. Walker began to install the ice maker, Mr. Knott washed his hands at the side of the house. The plaintiffs' experts testified that a puddle of water formed and rose to a point where it came into contact with the extension cord, the water became energized, and an electrical current traveled through the moist ground to Mr. Walker. The defendant's experts testified that the electricity could not have traveled the entire distance through the ground to Mr. Walker. Instead, they maintained that if the extension cord was still clipped to the electrical panel inside the house — as Mr. Larsen noticed earlier in the day — the entire house would have been energized and metal pipes underneath the house could have acted as conduits which, if touched by Mr. Walker, would have caused his electrocution.
Shortly before the trial, the lower court conducted a hearing on a multi-faceted motion for partial summary judgment filed by the plaintiff. Important for purposes of this appeal was the plaintiff's request for a judgment on the question whether JWH had a duty to exercise reasonable care for the safety of the decedent, Richard Walker, "while at the Knott job site." During the course of the hearing, the plaintiff urged that because Robert Larson, the licensed contractor employed by JWH, was the contractor who pulled the permit for the construction of the home, JWH was responsible for the safety of the job site until the certificate of occupancy was issued. According to the plaintiff, because of the lack of a ground fault interrupter device on the temporary power cord used by the Knotts, the job site was indisputably not "safe."
For its part, JWH urged that, by contract, certain portions of the work were to be undertaken by them, other portions by the owner, and that it should not be held responsible for unsafe conditions on the job site created by the owner. JWH also argued that, with the exception of minor plumbing trim being done by Walker on the date of the accident, it had completed its work in Phase I of the project some eighteen months earlier and had turned the project over to the Knotts for completion of Phase II. The expectation was that the Knotts would complete their work in ninety days, after which JMH would send someone to do the plumbing trim-out. JWH urged that it had relinquished control of the Knotts' house under construction to the Knotts some eighteen months earlier and that merely by going out to complete the minor plumbing trim they did not recover control of the job site. Additionally, they urged that because, pursuant to their contract, any supply of temporary power was the responsibility of the homeowner, not JWH, and because JWH required all of its subcontractors to travel with their own power generators to use as needed, any responsibility for defects in the temporary power line would be the sole responsibility of the Knotts. Finally, JWH urged that because the decedent Richard Walker was an independent contractor on the job site, he alone was responsible for his safety, not JWH.
The trial court's expressed analysis of these various legal positions was sensible and we do not disagree with it. On the one hand, the court rejected the notion that, solely by virtue of being identified on the permit as contractor, JWH was responsible for the safety of the entire premises during the entire course of construction, whether or not construction for which JWH was responsible was being performed. Because of the contractual relationship between the parties, JWH should only be responsible for the safety of the job site to the extent that the responsibilities of JWH were being carried out at the home. In essence, responsibility for job site safety rotated in accordance with the construction events taking place at the site. This distinction was important in this case because the bulk of the evidence seemed to indicate that Mr. Walker had completed his plumbing trim work for JWH and had moved on to the separate undertaking with the Knotts to install their ice maker for them. As the court explained:
. . . I think there is a sufficient factual dispute as to whether he was working under Jim Walter as a Jim Walter sub or whether he was working independently for the home owner. And my sense is that that may alter the responsibility that Jim Walter Homes owed to him.
The court went on to explain:
I am convinced that they [JWH] are essentially the general contractor. I am convinced they are in phase III. I am convinced there is no material dispute with regard to that. I haven't heard any today, anyway. The dispute has to do with what is the status of Mr. Walker while he's there. . . . If there is a general duty to have the job site in a safe condition as the general contractor, which I buy — I buy it based on the law. I buy it based on the facts of this case. I think it's undisputed. The question — the question then is: Is it foreseeable that this man would be doing what he was doing, in the location he was doing it, would come in contact with the electrical power . . . [L]et me start again. The defendant says, Larson, I may have called in to the job site. But at a certain point, he is calling to the job site by Larson ended. And he was there solely because the home owner was requesting that he be there. That may in fact change whether he falls within that duty. It may not. But because that issue is disputed, I am uncomfortable taking away from the trier of fact the ability to say no, this was someone that Jim Walter Homes could not reasonably have expected to come into contact with that particular condition. . . . I'm convinced based on the contractual relationships between the parties and the case law that Jim Walter Homes had, as between Jim Walter Homes and Mrs. Knott, that it was Jim Walter Homes' responsibility, legal responsibility to insure that the premises were in a reasonably safe condition as the general contractor. I buy that argument.
But I also buy your argument, Mr. McDonough [JWH's attorney] that there is a factual dispute as to the status of Richard Walker at the time of his death. [Emphasis added.]
We agree with this conclusion, if not necessarily the analysis in terms of foreseeability. Even though both the scope and the limitations of the trial court's ruling appear clear to the reader, i.e. simply that "Jim Walter Homes had a duty on the date that this event occurred to maintain those premises in a reasonably safe condition . . . based upon their status as the general contractor," the plaintiff pressed for the court to adopt the language "at the time and place of the incident complained of." The court responded by simply agreeing to put the date of the accident in the partial summary judgment.
Emphasis added.
Not surprisingly, when the proposed partial final judgment was submitted to the court by counsel for the plaintiff, the language selected by the plaintiff was: "the court determines as a matter of law that at the time and place of the incident alleged in the complaint, Jim Walter Homes, Inc., as general contractor, had a duty to maintain the premises in a reasonably safe condition." Also, not surprisingly, this proposed partial summary judgment came to the trial court with an acknowledged objection by defense counsel to that language. The lower court signed the order in the form it was presented.
The centrality of this single sentence in the partial summary judgment for the trial strategy of the plaintiff cannot be overemphasized. There was no doubt that there was an unsafe condition on the property that killed Walker. It is hard to imagine how the jury could follow this instruction and not find liability against JWH. Perhaps this point can best be illustrated by noting that the very first thing the plaintiff did after opening statements were completed was to open its case by asking the court to read the partial summary judgment to the jury. The trial court complied, over the defendant's objection. In opening statement itself, this ruling was prominently and repeatedly referred to. It was a constant feature of the trial and was again emphasized in the plaintiff's closing argument. Indeed, at the close of the plaintiff's case, after the court had reserved ruling on the defendant's motion for the court to withdraw its summary judgment order in light of the evidence presented at trial, defense counsel exclaimed to the court in frustration that "they [the plaintiffs] have a tendency, on objection, to repeat the summary judgment motion again and to cause the court to have to repeat it and the jury hears it and it's — as plaintiff pointed out, it's hard to unring a bell that has already been rung. We prefer not to have it rung every time there is an objection." Counsel for the plaintiff responded unrepentantly that, if the defendant made any effort to offer any testimony that they had "no control, had no responsibility," he would ask the court to instruct the jury in accordance with the previous rulings.
There certainly is no error preservation problem in this case. The defendant complained bitterly about the partial summary judgment at every available opportunity and, after the verdict, in the motion for new trial, the issue was raised again. The motion argued that "the clear evidence at trial was that a factual issue existed as to whether Jim Walter Homes was in fact the contractor at the time of the death of Richard Walker on the Knott job site. Defendant was therefore entitled to have this issue submitted to the jury." Indeed, although there does appear to be some dispute about whether he had completed all of JWH's work, there doesn't appear to be any genuine dispute that at the time of his death Mr. Walker was installing an ice maker for the Knotts. In short, it never was undisputed on this record that "at the time and place of the incident in question," Jim Walter Homes, Inc., as contractor, had a duty to maintain the premises in a reasonably safe condition. It may be true, as the trial court explained, that on the date of the incident, during the time that the contractual responsibilities of JWH to the Knotts were being carried out on the construction site, JWH had a duty to maintain the premises in a reasonably safe condition, but whether that was occurring "at the time and place of the incident in question" was an unresolved issue of fact. Thus, as drafted, entry of the partial summary judgment was error.
After reviewing the record, we recognize that this case was well tried by the plaintiff and the outcome of this case on retrial may not be different. Nevertheless, because of the legal significance of the ruling on partial summary judgment and because, having successfully obtained the order, the plaintiff made it such a prominent feature of the trial, we are unprepared to say this error was harmless.
REVERSED and REMANDED.
PETERSON, J., concurs.
THOMPSON, J., concurs in part; dissents in part, with opinion.
I agree with the disposition of two of the points raised on appeal. However, I respectfully dissent to the ruling on the motion for partial summary judgment. The issue at the summary judgment hearing was who controlled the construction site at the time of the accident and who was responsible for the safety of persons on the construction site: JWH, the Knotts or both. The Knotts argued that JWH was the general contractor and was responsible for a safe work area. JWH argued that it did not control the construction site and that therefore the Knotts were responsible for the safety of persons on the site. The trial judge ruled as a matter of law that JWH exercised some control over the construction site but that the degree of control was a jury issue. I would affirm because the ruling is supported by testimony, particularly the testimony of JWH's employees.
Mr. Larsen, the construction manager for JWH, initially pulled and paid for the building permit which was later renewed by Mrs. Knott. He testified that he had a degree in construction management from Michigan State University and was a licensed Florida contractor. He was designated an expert in residential construction and testified that JWH had a duty to use reasonable care for the safety of the persons on the construction site. This testimony was supported by JWH Vice President Mike Roberts. He testified JWH was concerned with safety, but only if JWH was in control of the construction site. Larsen also testified that he had been on the site earlier on the day of the accident, observed the faulty wiring, and told the Knotts about the problem before he left. Larsen knew that any temporary electrical power was required by OSHA to have ground fault circuit interrupter protection (GFCI), yet when he returned to the site and spoke with Walker, he never told him about the dangerous situation created by the temporary electrical power source. If GFCI protection had been available, Walker would not have been electrocuted.
JWH argues that there is a dispute of facts concerning who controlled the construction site and that it was a jury question. I disagree. Walker was there to complete trim work required under the contract to be performed by JWH. He could not do his job until the Knotts had completed the interior build-out. Further, he was on the site to complete the plumbing trim-out which included installing tubs, sinks, taps and the hot water heater. There were three phases to the construction of the Knotts' home, and I agree that during phase two, JWH had little control. As noted by the majority, Walker was on the site during phase three of JWH's contract. Here, JWH was completing the last of its contract work so a certificate of occupancy could be issued.
Citing Conklin v. Cohen, 287 So.2d 56 (Fla. 1973), and Lewis v. Sims Crane Service, Inc., 498 So.2d 573 (Fla. 3d DCA 1986), JWH argues that the Knotts were actively involved in the construction of the home during phase three and controlled the construction site, and that it was therefore the Knotts' responsibility to ensure that the premises were safe. These cases are inapposite. In Conklin, the court held that an owner who actively participates in construction to the extent that he directly influences the manner in which the work is performed can be held liable for damages caused by his negligence. Conversely, a passive, nonparticipating owner cannot be held liable. Here, the trial court ruled that, at minimum, the Knotts' and JWH's liability was coextensive. Lewis holds that an owner/general contractor can be held liable for injury on a construction site, and his liability does not depend upon his active participation. Rather, the owner/general contractor has a duty to maintain a construction site in a reasonably safe condition. Here the Knotts were not the owner/general contractor. See also Atlantic Coast Development Corp. v. Napolean Steel Contractors, 385 So.2d 676, (Fla. 3d DCA 1980).
Under Florida law, contractors may share responsibility for injuries caused on or around a construction site even though the landowner retains some possession and control of the premises.Worth v. Eugene Gentile Builders, 697 So.2d 945 (Fla. 4th DCA 1997). Further, in Alles v. Department of Professional Regulation, Construction Industry Licensing Board, 423 So.2d 624 (Fla. 5th DCA 1982), this court held essentially that a contractor cannot abdicate its responsibility to supervise a work site. In Alles, a condominium structure collapsed during construction, resulting in a great loss of life. The licensing board sought to revoke or suspend the license of the qualifying contractor because he had failed to supervise the project. The qualifying contractor argued that he had had no involvement at any time with any phase of the project, and that another person, named Stoner, was the de facto qualifying contractor. This court held that the contractor could not be relieved of his responsibility by allowing someone else to exercise his duties. This would circumvent the whole purpose of the statute and would allow a contractor to rent his license.Id. at 626-27.
In the instant case, JWH's agent, Larsen, was the qualifying residential contractor for a company which agreed to build what Larsen stated to be 75 percent of a completed house. At the time of the accident, Larsen was still the qualifying contractor, so he still had a duty to keep the premises safe. Furthermore, on the day of the accident, JWH, through Larsen, in fact exercised some control when he visited the site.