NEGLIGENT INSPECTION CLAIM AGAINST SUPERVISING DESIGN PROFESSIONAL / CONSULTANT

Posted on July 2, 2023July 2, 2023 by David Adelstein

Can a negligence argument be created against consulting design professionals or entities that are involved in the inspection of a trade’s work? The recent opinion in Bautech USA, Inc. v. Resolve Equipment, Inc., 2023 WL 4186395 (S.D.Fla. 2023) contains an interesting fact pattern that touches upon this issue. While the case dealt with a motion to dismiss, it contains a number of issues that may be discussed in follow-up postings.

Here, a prime contractor was hired by Broward County, Florida to install offshore reef mitigation units. The contractor entered into a subcontract with a concrete fabricator to fabricate the reef mitigation units. The contractor also separately hired consultants to inspect the units. The contractor and its consultants rejected the units even after the fabricator implemented design revisions. The fabricator was then terminated and not paid for contract work plus revisions it implemented to finished units. The fabricator sued the contractor and the contractor’s consultants for non-payment under many (ten) different theories of liability claiming it was damaged to the tune of millions of dollars.

In one claim, the fabricator asserted the consultants along with the contractor’s parent entity (that had involvement in the project) were negligent in their inspection of the fabricated units. The contractor and consultants moved to dismiss the negligent inspection claim under the independent tort doctrine and because they argued they did not owe a duty of care to support a negligence claim. The trial court denied this argument. The grounds in which the trial court denied these arguments are important because these grounds create strategic considerations when asserting a negligent claim for economic damages under a negligent inspection theory or negligence theory that the supervising consultants breached their duty of care.

A. Independent Tort Doctrine

With respect to the argument the independent tort doctrine barred the negligent inspection claim, the trial court denied this argument because there wasn’t a contract between the parties, expressing:

To start, the independent tort doctrine does not bar [the fabricator’s] negligence claim against [contractor’s parent entity]. Under Florida law, “a breach of contract, alone, cannot constitute a cause of action in tort….It is only when the breach of contract is attended by some additional conductwhich amounts to an independent tort that such breach can constitute negligence.” To apply, “the [independent tort] doctrine requires contractualprivity between the parties.” Because [fabricator] does not allege that a contract exists between it and [the contractor’s parent entity], the independent tort doctrine is inapplicable and certainly does not bar a tort claim against this Defendant.

Bautech, USA, supra, at *4 (internal citations omitted).

B. Duty of Care

With respect to the argument the Defendants (contractor’s parent entity and consultants) did not owe a duty of care, the trial court denied this argument expressing:

Next, [the fabricator] has identified a source for [the contractor’s parent’s entity] duty in tort — it is the same theory as for [the contractor’s consultants]. [Fabricator] alleges [contractor’s consultants], “each acting as agent/consultants for the County, owed [Plaintiff] a duty, as subcontractorand direct manufacturer of the [u]nits, to fairly, truthfully and properly report the status of the [p]roject to the County and others, in accordance withthe requisite standard of care required by the law.” [Fabricator] then alleges that because [contractor’s parent entity] “also provided personnel forthe inspection of the [u]nits[,]” it “owed the same duties” to [Fabricator] as [the contractor’s consultants].

Bautech, USA, supra, at *5 (internal citations omitted).

Defendants argued they owe no duty of care to inspect as such duty of care is ONLY owed by supervising design professionals, which none of them are, and this duty nevertheless does not extend to subcontractors: “Defendants argue that [fabricator] cannot state of a claim for negligent inspection because Florida appellate courts have declined to extend supervising professionals’ tort duty to subcontractors.” Bautech, USA, at *5. The trial court denied this argument because the precedent relied on by Defendants was a 1993 Florida Supreme Court case that has been overruled and the other case relied on was actually consistent with Florida’s Supreme Court’s leading 1973 opinion dealing with negligence claims against supervising design professionals, A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973), by considering numerous factors to determine whether such a duty of care by a supervising design professional exists.

In fact, to find a duty under Moyer, “the core issue is the extent to which the Defendant[s] supervised the Plaintiff or had sufficient control over [its] work to be able to exercise ‘economic life or death’ over the Plaintiff[,]” rather than a myopic focus on an individual’s job title. Here, the Amended Complaint indicates [Defendants] had supervisory control over [fabricator] because these Defendants “unfairly and in bad faith rejected completed [u]nits that conformed entirely to the Subcontract requirements, often for noncontractual and non-material issues.” Moreover, [fabricator] alleges the three Defendants were closely involved in the manufacturing process. This is minimally sufficient to plead that [Defendants] owed a duty to [fabricator] as supervising engineers.

Bautech, USA, supra, at *6 (internal citations omitted).

If asserting a negligent inspection claim or negligence claim against design professionals / consultants, keep the A.R. Moyer case (cited above) in mind. Also, keep this opinion in mind to plead and support the negligence claim demonstrating the duty of care that must exist to support such a negligence theory.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

NONDELEGABLE DUTY OF CARE OWED TO THIRD PERSONS

Posted on May 14, 2023May 14, 2023 by David Adelstein

Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1^stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions. Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff. No duty, no negligence claim.

What if a defendant’s duty was delegated to, say, an independent contractor?

[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.

Garcia, supra, (internal citations omitted).

In Garcia, a supermarket hired a company to provide floor cleaning and janitorial services. The company subcontracted the work to an independent contractor. The plaintiff, an employee of the supermarket, fell at the supermarket and sued the cleaning company in negligence claiming the cleaning company “breached its duty of care to warn [the supermaket’s] employees and invitees of the unreasonably slippery floors that caused here injuries.” Garcia, supra. The cleaning company moved for summary judgment claiming it is not liable for the acts of its independent contractor. Thus, the fundamental question is whether the duty of care of the cleaning company was a nondelegable duty that could not be transferred to an independent contractor.

The trial court found the duty of care was NOT a nondelegable duty meaning it could be transferred to the independent contractor. In this case, the cleaning company could not be liable in negligence because it owed no duty to the plaintiff (as that duty was transferred). The First District Court of Appeal affirmed, “[W]e hold that [the cleaning company’s] contract with [the supermarket] did not create a nondelegable duty on [the cleaning company’s] part to [the plaintiff], a non-party to the contract. As such, the trial court properly granted summary judgment as to this issue.”

In affirming, the First District relied on the Third District Court of Appeal’s opinion in Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993), which stands for the proposition that the “‘mere existence of a contract does not create vicarious liability as to third persons for the negligence acts of the independent contractor.’” Garcia, supra, quoting Carrasquillo. In other words, the contract, in of itself, does not create a nondelegable duty of care to third persons not a party to the contract.

EXISTENCE OF “DUTY” IN NEGLIGENCE ACTION IS QUESTION OF LAW

Posted on December 18, 2018April 24, 2020 by Edward Garber

In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

See id.

Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care.

To determine whether a defendant owed the plaintiff a duty under the general facts of the case, the issue becomes “whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So.2d at 502.

For example, in White v. Ring Power Corp., a personal injury case discussed here regarding an expert’s qualifications, the trial court granted summary judgment (as a matter of law) finding that the lessor of a crane did NOT owe the plaintiff a duty to download certain crane overload data before renting the crane to the lessee. The appellate court affirmed because nothing in the record established that the failure to download such data by the lessor before renting the crane created a broader zone of risk to the plaintiff.

SUING A PUBLIC ENTITY FOR NEGLIGENT MISREPRESENTATION …NOT SO FAST

Posted on April 14, 2018April 14, 2018 by Edward Garber

Suing a public entity for negligent misrepresentation…let’s just say, is not that easy. Not that easy at all! Putting aside the doctrine of sovereign immunity (the doctrine that the king can do no wrong), a public entity does not have an affirmative duty to necessarily convey accurate information, no matter how fair or unfair this may sound. And, a negligence claim fails without the defendant (in this case, public entity) owing the plaintiff a duty of care.

For example, in City of Dunedin v. Pirate’s Treasure, Inc., 43 Fla. L. Weekly D783a (Fla. 2d DCA 2018), a commercial owner wanted to renovate its property to accommodate a refurbished marina and a new restaurant. The owner met with the city to review its preliminary conceptual site plan. Based on this meeting, the owner prepared a costly site plan to comply with the City’s development code for the restaurant and marina. The City’s engineering department approved the site plan. However, the City then informed the owner that it had concerns with the restaurant’s square footage and parking. The owner and City agreed that the site plan for the marina and restaurant would be separated, as the owner did not want to ruffle any feathers. The City then approved the separate site plan for the marina but told the owner that the site plan approval for the restaurant was terminated as the owner needed to submit a brand-new application and comply with the updated development code. The owner filed suit against the City claiming, among other things, the City made misrepresentations about the site plan approval only to engage in a bait-and-switch tactic where the misrepresentations were made to induce the development of the marina, without the accompanying restaurant.

The City moved to dismiss the negligent misrepresentation claim on sovereign immunity grounds. The trial court denied the City’s motion finding as a matter of law the City was not entitled to sovereign immunity and the City appealed.

Interestingly, the appellate court rejected the City’s sovereign immunity argument but still reversed the trial court’s holding that the City is not liable to the owner for negligent misrepresentation. The court based its reversal on its determination that the City did now owe the owner a duty of care, hence the negligent misrepresentation claim failed as a matter of law.

A duty of care analysis is different from the analysis whether the City is sovereignly immune from the suit. If there is no duty owed, there is no reason to delve into whether sovereign immunity applies. Here, the Court found no duty was owed because the City “does not owe a duty to convey accurate information concerning whether Pirate’s Treasure’s [owner] site plan complied with the City’s development code.” City of Dunedin, supra.

The owner in this case could have been 100% correct. It had assurances from the City and acted on those assurances in devoting the money and time in finalizing its site plan based on the current development code. It then submitted separate plans at the behest of the City (to appease the City) only for the City to approve the marina (the project it wanted) while terminating the site plan for the restaurant (the project it really did not want). But, assuming this is all true, it does not matter because the court found that the City never owed an affirmative duty to the owner to convey accurate information, i.e., in this case, whether the owner’s site plan complied with the development code.

DESIGN PROFESSIONAL’S DUTY OF CARE NOT EXTENDED TO SUBCONTRACTORS

Posted on January 8, 2015January 8, 2015 by Edward Garber

In construction defect lawsuits, subcontractors responsible for the alleged deficient work or damage are third-partied into the lawsuit by the general contractor that hired them. And, sometimes, an owner (or association) tries to assert a claim directly against responsible subcontractors. There are times where subcontractors have the defense that the deficiencies and damages complained of are the result of design errors and omissions. A question becomes whether a subcontractor can assert a negligence claim directly against that design professional as a way to flow any potential exposure to the design professional.

Unfortunately, there is case law that says that a supervising design professional does NOT owe any duty of care to a subcontractor. See Spancrete, Inc. v. Ronald E. Frazier & Associates, P.A., 630 So.2d 1197 (Fla. 3d DCA 1994) (duty of care that supervising architect owed to general contractor did not extend to subcontractors); McElvy, Jennewein, Stefany, Howard, Inc. v. Arlington Electric, Inc., 582 So.2d 47 (Fla. 2d DCA 1991) (trial court erred in allowing case to go to jury because architect’s duty of care could not have been extended to subcontractors); E.C. Goldman, Inc. v. A/R/C Associates, Inc., 543 So.2d 1268 (Fla. 5^th DCA 1989) (consulting engineering/expert firm hired by owner to inspect and advise owner about roof owed no duty of care to roofing subcontractor). Without this duty of care, a subcontractor would NOT be able to pursue a negligence claim against the design professional because this duty of care is the very first element required to prove a negligence claim. (In order to prove a negligence claim, a plaintiff needs to prove that 1) the defendant owed the plaintiff a duty of care, 2) the defendant breached that duty of care, 3) that breach proximately caused damages/injuries to the plaintiff, and 4) the plaintiff was damaged/injured.) This does mean the subcontractor cannot assert the design professional’s errors and omissions as a defense, it just means that it will be an uphill battle for a subcontractor to assert an affirmative claim against the design professional.

PREMISE LIABILITY CLAIMS AND THE DUTY OF CARE OWED TO CONTRACTORS

Posted on January 3, 2015January 3, 2015 by Edward Garber

Unknown Premise liability claims are a concern to persons engaging a contractor (a business invitee) to perform renovation, maintenance, or repair work on property they own or lease. These are claims where a person injures himself / herself on another’s premises and sues the owner (and/or tenant) under theories grounded in negligence. “The crux of a cause of action for premises liability is not the ownership of the premises, but the negligence of the possessor in permitting [business] licensees and invitees to come unwarned to an area where they could foreseeably be injured by a dangerous condition which is not readily apparent.” Phillips v. Erican Manufacturing & Machine, Inc., 40 Fla. L. Weekly D103a (Fla. 5^th DCA 2014) quoting Houssami v. Nofal, 578 So. 2d 495, 496 (Fla. 5th DCA 1991).

In a negligence case, a plaintiff needs to prove the following four elements:

the defendant owes the plaintiff a duty of care;
the defendant breached that duty;
the defendant’s breach of that duty proximately caused damage / injury to the plaintiff; and
the plaintiff suffered damage / injury.

In premise liability claims, an issue oftentimes turns to the very first element, that being whether the defendant (e.g., property owner or tenant) owed the plaintiff (e.g., injured person) a duty of care. If the defendant did NOT owe the plaintiff a duty of care, there can be no negligence claim.

The Duty of Care in a Premise Liability Claim

In Phillips, a company was hired to clean and paint a warehouse’s corrugated metal roof that included cleaning and caulking skylights on the roof. As a worker was working on the roof, he fell through a skylight that had been concealed as it was painted the same color as the roof. While the skylight at-issue was visible from inside the warehouse, it was not visible from the exterior due to the paint. The injured worker sued the owner (amongst others) in a premise liability claim.

As reflected in a prior posting also dealing with an injury from a skylight, an owner that hires an independent contractor is typically not liable for injuries to the contractor’s employees unless: a) the owner was actively participating in the construction in that the owner directly influenced the manner in which the work was performed or b) the owner failed to warn the independent contractor of latent defects / perils that were either known or should have been known to the owner and which were not known by the independent contractor and could not have been discovered by the contractor through the exercise of due care.

This goes to the duty (first element in a negligence action) that an owner owes an independent contractor or any business invitee that an owner invites on his/her premises.

Because the painted skylight was not visible from walking on the roof, the issue was whether locating skylights solely from the roof was a reasonable inspection or whether the contractor should have also located skylights from inside the warehouse. If the contractor should have located skylights from inside the warehouse, then the contractor could have discovered the concealed peril (painted skylight) with due care, thereby defeating his premise liability claim. The Fifth District found that this was an issue for the jury.

What about this twist. The warehouse was leased to a company the owner was an officer of. Could the tenant be liable for premise liability claims? How about the owner if the tenant is the one utilizing the property and invited the contractor on the property? This is important because if a party does NOT possess or have control over the premises, and specifically the requirement to perform maintenance and repairs to the premises, then that party owed no duty of care and should not be liable for a premise liability claim. The Fifth District explained:

“In cases like this, where the facts involve a leased premises, the extent of responsibility for injuries occurring on the leased premises during the term of the lease depends on the extent the owner of the property maintains control over the premises. When the landlord and tenant have a lease that expressly sets forth which party has the power to possess and control the property during the term of the lease, the issue of control is a matter of law.”

Phillips, supra (quotations and internal citations omitted).

Notably, if a lease allows the tenant to make improvements or repairs subject to the owner’s approval, the owner will be deemed to have sufficient possessory interest or control over the leased property to owe a duty to a business invitee. See Russ v Wollheim, 915 So.2d 1285 (Fla. 2d DCA 2005).