Trial court granted summary judgement against building owner for worker who fell through a skylight while doing work on a roof for an independent contractor. During trial, the plaintiff’s attorney violated an order granting a motion in limine prohibiting him from introducing evidence of subsequent remedial measures taken on the skylights. He also asked the jury to render their verdict “not just for these two folks. This is an answer for this entire community.” And counsel also referenced forty year inspections in the context of the collapse of the Surfside Tower in Florida that occurred during the trial. The cumulative impact of these comments by counsel, along with the expert witness’ comment regarding subsequent remedial measures resulted in this not being a fair trial on the question of whether the general rule that a property owner who employs an independent contractor will not be liable for injuries sustained by an employee of that contractor. Martex Corporation v. Artiles, 354 So. 3d 1122 (Florida, 2023).
The court explained the following:
“There is a long-standing line of cases in construction law that provides the following rules regarding whether a property owner should be held liable for an independent contractor’s employee’s injuries: ‘As a general rule, “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.” (citation omitted). There are two exceptions to this rule.
First, a property owner may be held liable for an independent contractor’s employee’s injuries if the owner actively participated in the work or exercised direct control over the work, and failed to exercise that control with reasonable care. (citation omitted).
The second exception applies where the property owner fails to warn the contractor about concealed dangers not inherent in the work of which the owner had actual or constructive knowledge and which were unknown to the contractor or could not have been discovered through due care.’”
In the present case, the court concluded that this second exception might come into play. There was a possibility that the Owner knew or should have known about a concealed danger not inherent in the work – that being whether the skylights were potentially not up to code based on the fact that a prior roof repair was done without a permit. This created a genuine issue of material fact that the court stated prevented an entry of summary judgment.
Between this issue of material fact and the issue of counsel’s comments depriving the Owner of receiving a fair trial, the appellate court reversed the matter and remanded it for a new trial.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 25, No. 5 (July 2023).
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