Thursday, December 27, 2012

The Economic Loss Rule in Florida - A Primer

Note: this article deals primarily with the "other property" exception to Florida's Economic Loss Rule. As the rule itself applies in several situations, with a number of exceptions, please note that this is not a comprehensive treatment of the entirety of the rule. 

Having dealt with this area of law on multiple occasions, I can authoritatively tell you that Florida's Economic Loss Rule is a mess. The rule, in its most basic form, posits that when a product malfunctions and destroys itself, a Plaintiff may not recover in tort for those purely economic losses. Instead the Plaintiff is limited to the remedies that he or she bargained for when purchasing the product (i.e., breach of warranty). If however, the product's malfunction results in personal injury, or damage to "other property," a Plaintiff may sue to recover for those damages in tort.

The basic policy behind the Economic Loss Rule, as articulated in a number of cases, including the seminal case of Casa Clara, is that where a product causes damage only to itself, the parties who contracted for that product should be limited to the warranties they bargained for. If your car breaks down earlier than you expected, you should not be allowed to circumvent your contract and sue the manufacturer in tort. Rather, you should be limited to the warranty you bargained for. Allowing purchasers of products to sue for damages above and beyond the contractual warranties results in “the consuming public as a whole [bearing] the cost of economic losses sustained by those who failed to bargain for adequate contract remedies.” See e.g. Casa Clara Condo. Assoc., Inc. v. Charley Toppino and Sons, Inc., 620 So. 2d 1244 (Fla. 1993).

Obviously, this rule can have rather harsh consequences if actually applied. It relies on the fiction that the two parties are truly "free" to contract for a warranty, when in the real world we know that the individual consumer is essentially in a "take it or leave it" position when it comes to purchasing most consumer goods. You can't bargain for a better warranty on a belt sander at Lowe's. Moreover, when an individual consumer reasonably expects that a product will work for a certain amount of time, and it fails to do so, our basic sense of justice leads us to conclude that the consumer should be able to sue the negligent manufacturer.

Frankly, I believe that much of the confusion in the application of this rule results from Courts' (justified) sympathy for the Plaintiffs in these cases. Rather than articulating and applying the rule in a clear way, limiting Plantiffs to the terms of their contract, the published opinions in this area of law lay out confusing and contradictory doctrine, with very few clear standards. Specifically, with respect to the "other property" exception to the rule.

Let me lay out a hypothetical. Plaintiff purchases a car new from a dealership. He has a 3 year warranty. In year 4 of the warranty, a radiator malfunctions and the entire car burns up. Further, let's say that this gentleman had a valuable guitar in the trunk when the car burned down. Can he sue the manufacturer of the radiator to recover for the guitar? The economic loss rule says that yes, he can sue for damage to other property. But does the loss of that other property abrogate the rule all together, so that he can turn around and sue for the entire car? Take a look at Indemnity Ins. Co. v. American Aviation, Inc., 891 So. 2d 532 (Fla. 2004):

We further conclude that, in general, actionable conduct that frustrates economic interests should not go uncompensated solely because the harm is unaccompanied by any injury to a person or other property
This application of the doctrine makes absolutely no sense whatsoever if your goal is to limit parties to the contract that they bargained for. Letting the Plaintiff recover for "other property" makes sense, but requiring them to formalistically plead $1 in "other property" damages so that they can recover for everything? Why have the rule at all?

I believe that when litigating cases like these, on the Defense side, you can't let this particular issue lie, as it contradicts the basic notion of the economic loss rule. Other states have addressed this specific question and come to the conclusion that you can recover for the other property which was damaged, but not the original property you contracted for (because that destroys the entire rule). See e.g., Murray v. Ford Motor Co., 97 SW 3d 888 (Tex. 5th DCA 2003).

Let's assume that the oblique language American Aviation will be seen as dicta (because it makes no sense), and go back to our hypothetical.  Plaintiff purchases a car new from a dealership. He has a 3 year warranty. In year 4 of the warranty, a radiator malfunctions and the entire car burns up. Can the Plaintiff sue the manufacturer of that radiator for damage to the car?

Well, the "freedom of contract" policy says no, the Plaintiff can't. The radiator was included in the car that the Plaintiff purchased, and so it was a part of his bargain with the dealership. Allowing him to sue the radiator manufacturer would allow him to go above and beyond the terms of the contract, which would result in  “the consuming public as a whole [bearing] the cost of economic losses sustained by those who failed to bargain for adequate contract remedies.”

However, a number of Florida cases would lead you to the conclusion that the Plaintiff could sue the manufacturer, because the radiator was not an "integral" component of the car that he bargained for.

“Other Property Analysis”
Product Purchased vs. Integral Part/Component:

        The doctrinal tension evident in Florida’s interpretation of the Economic Loss Rule finds its roots in the landmark Casa Clara case. In Casa Clara, the Florida Supreme Court held that the Plaintiffs’ disappointed economic expectations (arising from defective concrete in their houses) could only be vindicated through contractual remedies, as they had bargained for the finished product (the homes). It followed that any damage done to the finished product (home) by one of its component parts (concrete) was not recoverable in tort, as the Plaintiffs disappointed expectations were clearly contractual in nature – the product that they purchased did not perform as they had hoped. Allowing the Plaintiffs to seek a remedy in tort would override the contractual bargain for the purchase of these homes (i.e., the warranty that the Plaintiffs bargained for). Unfortunately, the Court went on to confuse this clear principle by suggesting that because the concrete was an “integral part” of the finished homes, the damage to the homes was not damage to “other property”:

        The homeowners also argue that Toppino's concrete damaged "other" property because the individual components and items of building material, not the homes themselves, are the products they purchased. We disagree. The character of a loss determines the appropriate remedies, and, to determine the character of a loss, one must look to the product purchased by the plaintiff, not the product sold by the defendant. King v. Hilton-Davis, 855 F.2d 1047 (3d Cir. 1988). Generally, house buyers have little or no interest in how or where the individual components of a house are obtained. They are content to let the builder produce the finished product, i.e., a house. These homeowners bought finished products--dwellings--not the individual components of those dwellings. They bargained for the finished products, not their various components. The concrete became an integral part of the finished product and, thus, did not injure "other" property.

Casa Clara Condo. Assoc., Inc. 620 So. 2d at 1247.

Integral Part/Component Line of Cases:

Pursuant to the Florida Supreme Court’s language in Casa Clara, a line of cases have arisen focusing on the “integral” nature of the malfunctioning part itself, and suggesting that the determination as to whether “other property” has been damaged requires a determination as to whether or not the malfunctioning component was “integral” to the damaged finished product. Note, however, that there are no clear standards or factors to consider when determining whether a product should be considered “integral.” An exhaustive list of the Integral Part/Component line of cases follows:

Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219, 1226 (Fla. 1999) (subject of the contract was the renovation of a warehouse - a service, not a product, but to the extent the warehouse was the object of the contract, the computers inside the warehouse that were damaged during renovation were not an integral part of the "product" and were, therefore, "other property".)

All American Semi Conductor, Inc. v. Mil-Pro Services, Inc., 686 So. 2d 760 (Fla. 5th DCA 1997) (“Mil-Pro’s programming efforts destroyed nothing more than the microchips which were to be programmed. And the Bytek machine, just as the concrete in Casa Clara became a part of the living unit purchased by the condominium owners, became an integral part of the programming services purchased by All American in this case.”)

Am. Universal Ins. Group v. Gen. Motors Corp., 578 So. 2d 451 (Fla. 1st DCA 1991) (“It is our view that the oil pump was an integral or component part of the engine manufactured by General Motors and thus the damage to the engine caused by this component part was not damage to separate property… The pump became an integral part of the repaired engine and when it damaged itself, and the engine parts, this was not damage to ‘other property’.”)

Jeld-Wen, Inc. v. Nebula Glass Int'l, Inc., 2008 U.S. Dist. LEXIS 44277, 07-22326-CIV-DIMITROULEAS (SD Fla. 2008) (“In Casa Clara, the Florida Supreme Court held that homes damaged by defective concrete did not constitute other property as the concrete was an integral part of the finished products purchased by the owners. Similarly, in the present case, the resin is an integral part of the finished product--the windows and doors.”)

Pycsa Pan., S.A. v. Tensar Earth Techs., Inc., 625 F. Supp. 2d 1198 (SD Fla. 2008) (“In determining if plaintiff has suffered damage to other property, the question is whether property other than the defective property itself, or property other than that which the defective property is an integral part of, has been damaged.”)

Pulte Home Corp. v. Ply Gem Indus., Inc., 804 F. Supp. 1471 (MD Fla. 1992)( In the context of actions in tort, in determining whether a party has suffered "property damage" the question for the court is whether property other than the defective property itself, or property other than that which the defective property is an integral part of has been damaged. Once the roofs were installed, they became an integral part of the homes. Any costs incurred as a result of damage to those roofs, or damage to the structure of the units, is not damage recoverable in tort.)
        Thus, it does appear that there are a significant number of cases, particularly 11th Circuit cases, which require that the malfunctioning product to be an “integral part” of the finished product in order to bar recovery for damage to the finished product under the Economic Loss Rule. Note, however, that none of the cases performing integral part analysis lay out any standards for determining whether a part is integral.

“Product Purchased” Line of Cases:

        Despite some cases emphasis on “integral component” analysis, there are a number of cases which track the “freedom of contract” policy as articulated in Casa Clara.      For example, In Jarmco, Inc. v. Polyguard, Inc., 668 So. 2d 300 (Fla. 5th DCA  1996), a case relating to defective resin which was used in the construction of a (subsequently unusable) boat, the Fifth DCA interpreted Casa Clara in the following manner:

The essence of Casa Clara is that purchasers of defective products are limited by law to those damages that were or could have been provided by contract between the purchaser and his immediate seller. The Economic Loss Rule requires that party to make use of traditional contract remedies for redress. Correspondingly, it bars the use of tort remedies to make society as whole pay for the failure of the purchaser to protect his own interests by bargaining for appropriate provisions in his own contract.

        This clearly articulated policy of favoring contractual remedies, and requiring parties to bargain for protection against a defective product directly conflicts with the line of cases which ask whether the malfunctioning component was “integral.” See also Pycsa Pan., S.A. v. Tensar Earth Techs., Inc., 625 F. Supp. 2d 1198 (SD Fla. 2008) (approvingly citing Jarmco). Additional cases follow:

Premix-Marbletite Mfg. Corp. v. SKW Chem. Inc. 145 F. Supp 2d 1348 (SD Fla. 2001) (“Florida case law does not consider property that the defective product is integrated into to be other property.”) (Citing Jarmco).

Turbomeca, S.A. v. French Aircraft Agency, Inc., 913 So. 2d 714, 717 (Fla. 3d DCA 2005) (damages for loss of helicopter were barred by the economic loss doctrine because the helicopter airframe and engine were one product, not two separate pieces of property; "[c]ourts have refused to bifurcate products into parts where a component part harms or destroys the finished product.")

Fishman v. Boldt, 666 So. 2d 273, 274 (Fla. 4th DCA 1996) (the product purchased by the plaintiff was a home with all its component parts, including the seawall, pool, and patio, consequently, no "other property" was damaged when the seawall failed and the home, pool, and patio were damaged, meaning economic loss doctrine precluded recovery in tort).

By now it should be clear that there is an unresolved doctrinal conflict in Florida case law relating to the economic loss rule. Specifically, do you look to the contract between the parties, or do you consider whether the malfunctioning component was “integral”? If so, what are the standards?

In short, any litigator who handles these cases should be prepared for a fair bit of uncertainty on this issue.

Thursday, October 11, 2012

Dismissal for Fraud Upon the Court under Florida Law

When a Plaintiff creates fraudulent evidence, or lies under oath about something that is central to their claim, what are your remedies? The most obvious answer is that you can present evidence of this dishonest behavior to the jury, in order to impeach the Plaintiff's credibility. However, there are times when a Plaintiff's misconduct is so egregious that a Court may find that the proper sanction is to dismiss their claim entirely (or in the case of a defendant, strike their pleadings). As the vast majority of these cases involve Plaintiffs in personal injury actions who perjure themselves (or omit crucial facts), this brief article explores those standards in Florida State Court. Note that the standard in Federal Court is somewhat more exacting, and may be explored in a subsequent post.

Procedure/Standard of Review:

Florida state courts have articulated a standard which gives the trial court quite a bit of latitude in its determination as to whether dismissal for fraud upon the court is warranted. Naturally, the appellate court will defer to a trial court's expertise when it comes to determinations of credibility and good faith, and these orders are generally reviewed for abuse of discretion. Metro Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999). Appellate courts may be less deferential where the trial court's determination was based upon a paper record, rather than an evidentiary hearing. Bologna v. Edwin Schlanger, 995 So. 2d 528 (5th DCA 2008). However, while evidentiary hearings are clearly favored, there is "no rule, statute, or case" that requires an evidentiary hearing to be held when a motion to dismiss for fraud is filed. Gilbert v. Eckerd Corp. of Florida, Inc., 34 So. 3d 773 (Fla. 4th DCA 2010). When finding that dismissal is the appropriate sanction for a Plaintiff's fraud, the Court must conclude that the Defendant has produced clear and convincing evidence of a fraud, and an order granting Defendant's motion should contain:

Express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculate to subvert the judicial process. Chacha v. Transport USA, Inc., 78 So. 3d 727 (Fla. 4th DCA 2012).

Accordingly, a party who prevails on a Motion to Dismiss for Fraud Upon the Court should submit a proposed order which includes express factual findings and in-depth references to the factual record in order to reduce the likelihood of reversal upon appeal. In other words, the order should look like it was written by a federal judge granting summary judgment. 

Legal Standard:

In general,  a trial court has a duty and an obligation to dismiss a cause of action based upon fraud. Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001). The reasoning behind the harsh sanction of dismissal is the principle that a party who has been guilty of fraud or misconduct in the prosecution of a civil proceeding should not then be permitted to continue to employ the very institution he has undermined to achieve his ends.  Hanano v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998).

But what type of misconduct rises to the level of fraud? In the personal injury context, failure to disclose prior related injuries, and prior similar accidents can warrant a dismissal for fraud, where the Plaintiff's misrepresentations and omissions go to the the heart of his claim for damages. Martinsen, 736 So. 2d at 795. Or, alternatively put, “when a party lies about matters bearing directly on the issue of damages, dismissal is an appropriate sanction.” Cross v. Pumpco, 910 So. 2d. 324, 328 (Fla. 4th DCA 2005) (citing Distefano v. State Farm Mut. Ins., 846 So. 2d 572, 574 (Fla. 1st DCA 2003)). Note that while failure to disclose medical history and prior accidents has frequently been recognized as warranting dismissal, Courts are generally disinclined to grant such a motion where you catch a Plaintiff lying about their limitations by using surveillance. Amato v. Intindola, 854 So. 2d 812 (Fla. 4th DCA 2003); Jacob v. Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003).

In Metropolitan Dade County v. Martinsen, the Third District Court of Appeal held that a trial court abused its discretion in failing to dismiss Plaintiff’s case for fraud upon the court where the Plaintiff failed to disclose an extensive history of medical treatment for similar injuries suffered in prior car accidents and in a work-related accident in her response to interrogatories and deposition. Metro Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999).

Likewise, in Long v. Swofford, the Plaintiff sought damages for lower back injuries that she alleged were caused by an automobile accident. Plaintiff testified during her deposition that before the accident, she had no prior injury or pains to her lower back. During discovery, defendant investigated Plaintiff’s medical history and discovered that Plaintiff’s claimed injuries were preexisting, and that she had previously received treatment for same.  The Third District Court of Appeal held that the trial court’s decision to dismiss Plaintiff’s case for fraud upon the court was proper because plaintiff provided false or misleading statements under oath concerning issues central to her case. Long v. Swofford, 805 So. 2d 882, 883 (Fla. 3d DCA 2001); see, also Mendez v. Blanco, 665 So.2d 1149 (Fla. 3d DCA 1996)(dismissing case with prejudice based on Plaintiff’s lies told under oath at deposition); O’Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994) (holding that although Plaintiff’s perjury regarding his educational background did not directly concern the cause of action itself, dismissal of the entire case was warranted); Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d DCA 2002) (dismissal was appropriate where the plaintiff lied about prior injuries and treatment for neck and low back pain).

Particularly relevant factors in the Court's analysis are (1) similarity (or dissimilarity) of non disclosed injury; (2) whether nondisclosure involves all of Plaintiff's claimed damages/injuries; (3) substantial, if incomplete, disclosure of prior injuries, accidents and treating physicians (or, alternatively, complete and total omission); and (4) temporal proximity (remote/recent) of any prior related, and undisclosed injuries. See e.g. Hair v. Morton, 36 So. 3d 766 (Fla. 3d DCA 2010) (overturning dismissal where Plaintiff's nondisclosure related to only part of her claimed damages); Cross v. Pumpco, 910 So. 2d. 324 (Fla. 4th DCA 2005) (overturning dismissal where Plaintiff had disclosed four prior accidents and multiple pre-existing injuries, but failed to disclose a fifth accident which had occurred some seven years prior to his deposition); Armakan v. McLean, 800 So. 2d 314 (Fla. 3d DCA 2001) (overturning dismissal where Plaintiff had failed to disclose a somewhat dissimilar injury which had occurred 18 years prior to his deposition); Ruiz v. City of Orlando, 859 So. 2d 574 (Fla. 5th DCA 2003) (overturning dismissal where Plaintiff failed to fully disclose symptoms from an accident which had occurred over 30 years prior to her deposition). 

As the aforementioned cases illustrate, the ultimate question is whether the Plaintiff could have credibly 'not remembered' the prior injuries that they omitted. If the injury occurred a long time ago, they would presumably be far less likely to remember the injury, which, in turn, makes it far more difficult to clearly and convincingly establish that the Plaintiff was deliberately lying under oath. Likewise, substantial, albeit incomplete, disclosure of prior injuries, would make it far less likely that the Plaintiff was attempting to hide the truth during their deposition. You would expect someone to go whole hog if they were intent upon committing perjury. Finally, the relatedness/similarity of the nondisclosed injuries weighs upon credibility, because a Plaintiff would have less of an incentive to hide them. Moreover, failure to disclose unrelated injuries does less to undermine the integrity of the judicial system, because, presumably, if these unrelated injuries were known, they wouldn't have an effect on the damages the Plaintiff was actually entitled to.

Ultimately, these motions should be used sparingly, when it is clear that you are dealing with a Plaintiff who has no regard for the truth, and who is simply trying to manipulate the system. When questioning such a Plaintiff, make sure to ask specific questions, and don't try to 'trick' him into nondisclosure. In addition to simply being immoral, courts have recognized this one and don't go for it. Bologna v. Edwin Schlanger, 995 So. 2d 526, 529 (5th DCA 2008) (overturning dismissal and noting that deposition questions were “very broad in scope with virtually no follow up questions”).

Finally, in order to avoid losing all of your sunk costs to such a motion, Plaintiffs' counsel would be well advised to take the time to meet with their clients and ensure that they fully disclose everything. Obtaining signed releases and looking through their medical history is likely in your client's best interest as well, even if you have to "save him from himself." After all, even if the Motion is denied, your client's credibility will be shot.  To the best of my knowledge, there's no rule of professional conduct that requires you to dig this deeply, and it may not be malpractice to take your client at his word, but it is certainly in the best interests of your client, not to mention, a wise business decision.

Thursday, August 16, 2012

Making Sense of Non-Delegable Duty

There are a number of legal doctrines under Florida Law that, when fully analyzed, don't make a whole lot of sense. The economic loss rule (which will be discussed in a subsequent post) is especially nonsensical. However, the concept of non-delegable duty is no slouch either.

Applied correctly, the concept makes sense. There are certain duties that are so important (e.g., keeping people safe around explosives, protecting people in positions of special trust/vulnerability), that their proper performance can not be delegated to a third party or independent contractor. The general concept is that you can delegate the performance of the duty, but you may not delegate away the liability for negligent performance of that duty. So even if a hospital can legally hire nurses that are independent contractors, it can't legally escape liability for a nurse's negligent performance of his or her job.

The practical effect of the non-delegable duty doctrine is to override/abrogate Florida's pure comparative negligence statute. If your contractor negligently breaches your non-delegable duty, you are essentially jointly and severally liable for that negligence. This is important when you are hiring contractors who are undercapitalized and/or uninsured, because it ensures that an injured party will be able to recover from someone for their injuries.

However, in practice, things get very confusing when you have two or more solvent/insured defendants in a case. For example, a landowner and a large security company. How do you apportion fault in that context? Does the non-delegable nature of the landowner's duty somehow require them to exercise a higher standard of care? Florida courts have not answered this question.

Ideally, where you had a solvent co-defendant, non-delegable duty would not be an issue. The jury can just apportion fault to the parties for their respective wrongdoing. Where the contractor/co-defendant is insolvent, or of questionable solvency, the ideal way to handle this doctrine, in my opinion, would be to have the parties stipulate prior to trial that the party with the non-delegable duty will essentially be jointly/severally liable for the damages of its contractor, with a subsequent right to recover in contribution. This would allow the jury to apportion fault without getting confused, which would determine the amount of contribution the party with the non-delegable duty could seek from its contractor. Unfortunately, contribution has been abolished in Florida (all we have left is common law indemnification, which requires a showing of no fault whatsoever). Again, there are really no rulings that clearly lay out this sane set of rules. Moreover, this issue is not so common that there is some unspoken rational way of handling things. Instead, you get a lot of uncertainty. For example, in West Boca Medical Center, Inc. v. Marzigliano 965 So. 2d 240 (Fla. 3rd DCA 2007), discussed below, the jury was given an instruction on non-delegable duty, and it totally messed up their apportionment of fault. That means that the jury's verdict would be useless in a subsequent action for contribution. That's a waste of judicial resources.

Moreover, it isn't entirely clear when a non-delegable duty is imposed (i.e., the scope of the doctrine). Common carriers and hospitals are subject to it. So are people who do ultrahazardous activities. But there is also a line of cases which strongly suggest that just about all property owners are subject to a non-delegable duty of care as well. I don't think this is bad policy, I just think the law needs to be clearer.

Having laid out my own personal thoughts on the matter, I now present you with an overview of the law, with a focus on premises liability.

 U.S. Security Services Corporation v. Ramada Inn, Inc. 665 So. 2d 268 (Fla. 3rd DCA 1996).
In this negligent security case, the court found Ramada to be liable for the negligence of its independent contractor based on its non-delegable duty to invitees. One could argue that this holding is limited to innkeepers/hotels.

The Court held:
(1) Ramada had a non-delegable duty to the plaintiff, as Ramada’s business invitee, to provide the plaintiff with reasonably safe premises, including reasonable protection against third party criminal attacks; and (2) Ramada could contract, as it did with USS, an independent contractor, to provide the required security for its guests, but it was nonetheless vicariously responsible for any negligence of USS in providing such services based on the non-delegable duty theory. [...]

It therefore follows that Ramada and USS are jointly and severally liable for USS’s 35% negligence, and that Ramada is individually liable for its own 50% negligence, as reflect in the original judgment entered by the trial court based on the Jury’s verdict.

On rehearing, the 3rd DCA elaborated upon its holding:
The central flaw in Ramada’s reasoning is that its duty to provide its business invitees with reasonably safe business premises, including reasonable protection against third party criminal attacks, is a non-delegable duty which it cannot contract out of by hiring an independent contractor.

Much of the court’s supporting authority specifically mentioned the duty of hotels/innkeepers (traditionally viewed as common carriers), but its holding was stated in general terms.

Armiger v. Associated Outdoor Clubs, Inc. 48 So. 3d 864 (Fla. 2nd DCA 2010)
In this case, the plaintiff slipped and fell on a puddle of liquid at a race track, where the race track owner had hired an independent contractor to clean the premises. After overturning the trial court’s denial of the plaintiff’s motion to amend his complaint, the Second DCA held that the owner had a non-delegable duty to maintain its premises in a reasonably safe condition:

[W]hen a business owner is subject to a nondelegable duty, the potential responsibility of an independent contractor is not relevant to the business owner’s liability [to the injured party].


The statute [Fla. Stat. §768.0710] imposes a duty of reasonable care on persons in possession or control of business premises to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises. This statutory duty of care is nondelegable ... It follows that Association could not avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the track to others.

Note that the court’s imposition of a duty was based on Fla. Stat. §768.0710 (“transitory foreign objects or substances”) which has since been repealed. However, if the injury in your case occurred before the original statute was repealed,  Fla. Stat. §768.0755 should not be applied retroactively.

Additionally, the replacement statute (Fla. Stat. § 768.0755) states that “This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.” Nothing in the replacement statute affected the owner’s duty of care to maintain its premises – it merely changed the Plaintiff’s burden of proof.

West Boca Medical Center, Inc. v. Marzigliano 965 So. 2d 240 (Fla. 3rd DCA 2007).
In this case, a non-employee nurse slipped and fell while entering a hospital room. She sued the hospital as well as the (bankrupt) independent contractor that provided housekeeping services. The Third DCA upheld the jury’s (somewhat confusing) verdict, and affirmed the trial court’s determination that the hospital’s duty to maintain the floor was non-delegable:

The hospital first argues that it could only be liable vicariously and only for the wrongdoing of Signature [contractor] as the active tortfeasor. The jury found both the Hospital and Signature to be Negligent...However, because Signature’s duties had been determined by the trial court to be non-delegable, the jury was given an instruction on the point. The jury was instructed that, “as a matter of law” the Hospital was responsible for any negligence regarding the maintenance of the floor involved in the accident. The jury’s verdict finding “0%” comparative negligence on the part of Signature is entirely consistent with the instruction - the jury apparently understood that any responsibility on the part of Signature was to be ascribed to the Hospital.

One may argue that this holding is limited to medical centers, as they are traditionally subject to a non-delegable duty to provide medical care and treatment, but the plaintiff in this case was non-employee nurse rather than a patient. This would, presumably, make the plaintiff a business invitee. 

As you can see, the jury instructions issued by the trial court led the jury to fully apportion fault to the party with the non-delegable duty. This would likely not have occurred in the absence of this instruction. This is a bad outcome. It allows the contractor to escape all liability for negligence, which is bad policy. Requiring negligent parties to pay for their negligence deters them from being negligent in the first place. The point of non-delegable duty is to ensure that a Plaintiff can recover, where the contractor is insolvent. As a litigator, this is a pitfall you should seek to avoid at all costs.  (Unless you represent the contractor, I suppose).

Mortgage Guarantee Insurance Corp. v. Stewart 427 So. 2d 776 (Fla. 3rd DCA 1983).
This case results from a wrongful death of a child invitee, where the landowner defendant was held liable for the death based on the negligence of an independent contractor. The Third DCA, implicitly recognizing that the landowner owed a non-delegable duty to the invitee, held that the landowner could seek indemnification from the negligent contractor after the fact:

Moreover, it has been established that a defendant who has been held liable, without personal fault, to a business invitee for a breach of a nondelegable duty to maintain his premises in reasonably safe condition may recover [common law] indemnity against his negligent independent contractor hired to discharge the nondelegable duty.


First, it is urged that the plaintiff MGIC was at fault in this case, thereby barring indemnity, because it had no authority to hire an independent contractor [defendant Stewart] to perform its admitted nondelegable duty to maintain the subject premises in a reasonably safe condition. It is said that only the plaintiff MGIC through its employees could perform this duty and its failure to do so constitutes fault in itself. This position is ill-conceived as the law has always permitted a person to hire an employee or an independent contractor to perform a non-delegable duty owed by that person to third parties; the law only precludes such person from escaping, by that devise, vicarious responsibility for the proper performance of that nondelegable duty.

Smith v. Mayes 851 So. 2d 785 (1st DCA 2003).
In this case, the defendant homeowner was sued for the allegedly negligent acts of his independent contractor broker. The court recognized that the Defendant had a non-delegable duty to use reasonable care in maintaining the property and to give the purchaser warning of any concealed perils, but held that no breach of that duty had occurred under the facts in this case.

We agree that [the homeowner] did have a non-delegable duty to use reasonable care in maintaining his premises in a reasonably safe condition, and to give invitees warning of any latent and concealed perils on the premises. Nevertheless, appellants did not present any evidence that the premises were unsafe. The purported negligence lay in [the Broker’s] act of opening the garage door to the home only partially, contrary to Dotty Smith’s expectation that the door was fully raised, which caused her to hit her head on the door.

In other words, the Court held that the defendant owed a non-delegable duty to invitees, but that no negligent breach of this duty occurred.

Food Lion, LLC v Monument/Julington Assoc. Ltd. Partnership 939 So. 2d 1106 (Fla. 1st DCA 2006).
In this rather confusing opinion arising out of a sidewalk slip and fall, the First DCA overturned the lower court’s granting of summary judgment in favor of the shopping center owner against the injured plaintiff. Food Lion (the tenant and second defendant) argued that the summary judgment was improper because the shopping center owner had a non-delegable duty to keep the premises safe. The First DCA apparently agreed, issuing the following holding:

Accordingly, we reach Food Lion’s contention that summary judgment should be reversed because the shopping center owner’s nondelegable duties to [plaintiff] did not, on the facts developed below, rule out liability on the part of the owner for her injuries. A landowner owes a business invitee a duty not only to react to hazards of which it has notice but also to inspect to ensure conditions are safe, or at the least, that hazards (unless open and obvious) are discovered and warned against. [...]

Whether a landlord’s duty to maintain the premises has been breached is ordinarily a question for the jury to decide... We reverse and remand for a trial at which evidence of notice or lack of notice can be adduced together with all the evidence on the plaintiff’s claims.

Although the language is muddled, Food Lion argued that the summary judgment should be overturned because the landlord had a non-delegable duty, and the First DCA did overturn the summary judgment on those grounds.


I basically started this post with my conclusion. If you have a Plaintiff claiming non-delegable duty, and there is a co-defendant involved, I strongly suggest that you have a pow-wow pre-trial so that your apportionment of fault doesn't get all messed up like it did in Marzigliano.