Construction Update – Third DCA Upholds Narrow Circumstances Where Owner can be Liable for Injuries to Independent Contractors and Bars Experts from Opining Whether a Party Violated its Duties Under the Building Code

April 5, 2016 by on News

The Third DCA recently issued a ruling in Fuentes v Sandel, Inc. (slip opinion issued March 23, 2016 in Case no. 3D14-3007), impacting the defense of premises liability and construction defect cases. In Fuentes, a property owner and its tenant were sued after the death of an employee of an independent contractor. The employee was painting the roof of a building on the property when he fell through a sky light to his death.

Plaintiff argued the property owner or its tenant controlled, managed and maintained the building. As such, Plaintiff claimed the owner/tenant had a duty to comply with the building code, maintain the skylight and provide sufficient guards or warnings around the skylight.

The longstanding rule in Florida is a property owner is not liable for injuries to employees of independent contractors which occur during the performance of their work unless:

1) The owner actively participated in the work, or exercised direct control over the work and failed to exercise that control with reasonable care; or

2) The owner failed to warn the independent contractor of concealed dangers not inherent in the work which the owner had actual or constructive notice and which were unknown to the independent contractor or could not have been discovered through due care.

When analyzing whether the owner/tenant had “direct control”, the Court found merely setting the time for work, inspecting the work, suggesting how to do the work, or requiring the contractor to make certain deviations during the course of the work was not sufficient to establish “direct control”. Citing Morales v. Weil, 44 So. 3d 173, 176 (Fla. 4th DCA 2010), the Court observed, “indeed, the amount of control needed to pierce the shield of liability must be extensive” and include control over the manner in which work performed.

Evaluating the notice prong, the Court found the independent contractor was warned of the danger as employees of the owner and/or tenant told the independent contractor to be aware of a skylight, not to step on the skylight, that the skylight would not support any weight, and they should be hooked to safety rope while on the roof.

Given the lack of “control” and the establishment of notice, the Court affirmed summary judgment in favor of the property owner and its tenant.

The Court also addressed a second issue of interest in the Fuentes opinion. In opposition to the owner/tenant Summary Judgment the Plaintiff filed an Affidavit of an architect, George Zimmerman. In the Affidavit, Zimmerman set out his interpretation of the building code and opined the owner and tenant had violated the building code. The trial court struck the Affidavit and the Third DCA affirmed the ruling noting an expert may not testify as to responsibilities/duties under the code as it constitutes an improper attempt to “instruct the jury on the issue of legal liability.” Such legal conclusions are to be made by the courts.


Elizabeth B. Ferguson
Elizabeth B. Ferguson
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Randy R. Dow
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Thomas A. Berger
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