Have you heard the expression “nondelegable duty”?  The issue of a nondelegable duty comes into play when a party hires an independent contractor and the independent contractor commits negligence, primarily in the personal injury context. In other words, a plaintiff wants to hold a defendant liable for the injuries caused by the defendant’s independent contractor.

A nondelegable duty is one that “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 v. Southern Cleaning Service, Inc., 360 So.3d 1209, 1211 (Fla. 3d DCA 2023) (internal citation omitted).

When it comes to CONTRACTUAL duties:

[S]pecifically the principle that one who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance by showing that he hired someone else to perform the task and that other person was the one at fault. In other words, where the contracting party makes it her or his duty to perform a task, that party cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.

Gordon v. Sanders, 692 So.2d 939, 941 (Fla. 3d DCA 1997).

What about third parties and not contracting parties?

Liability for breach of contractual duties does NOT automatically form a recovery basis in negligence by third parties not related to the contract.  Garcia, 360 So.3d at 1211 (citation and quotation omitted).

In Garcia, a defendant company entered a contract with a supermarket to provide floor cleaning and janitorial services. It hired a subcontractor (an independent contractor).  The plaintiff fell at the supermarket and sued the defendant company in negligence alleging it owed a nondelegable duty and breached this duty by the slippery floors that caused her injury. The trial court granted summary judgment for the defendant company and the appellate court affirmed. The trial court and appellate court relied on precedent that found “the mere existence of a contract does not create vicarious liability as to third persons for the negligent acts of the independent contractor.” Garcia, 360 So.3d at 122 (citation and quotation omitted).  Hence, the defendant company’s contract with a supermarket does not create a nondelegable duty owed to a third-party that was not a party to the contract.  Id.

Importantly, liability for breach of a nondelegable duty “arises from direct-instead of imputed [or vicarious]-liability.”  Arminger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 874 (Fla. 2d DCA 2010) (“The liability for a nondelegable duty that we impose directly upon the employer of an independent contractor is grounded in a special public policy to protect third persons in an area of inherent danger and to encourage conscientious adherence to standards of safety where injury likely will result in the absence of precautions. The test of liability is the presence or absence of reasonable precautions; and direct liability is not dependent upon any apportionment to an employer of his or her concurrent negligence in failure to ensure that an independent contractor takes necessary precautions.”) (quotation omitted).

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




When it comes to product liability law, one important doctrine that will always come up is the economic loss rule.  The economic loss rule, oftentimes going by its acronym ELR, lives and breathes in the realm of product liability law.

Does the economic loss rule extend to a manufacturer’s distributor for a duty to warn when the product is NOT defective?  A recent opinion out of the Eleventh Circuit Court of Appeals, NBIS Construction & Transport Ins. Services v. Liebherr-America, Inc., 2024 WL 861257 (11th Cir. 2024), was confronted with this question, including whether the economic loss rule should even extend to a distributor of a product, and certified the following to Florida’s Supreme Court to answer: “Whether, under Florida law, the economic loss rule applies to negligence claims against a distributor of a product, stipulated to be non-defective, for the failureto alert a product owner of a known danger, when the only damages claimed are to the product itself?NBIS, supra, at *8.

This presents an interesting issue and question of utmost importance for Florida’s Supreme Court to address.  How far does the economic loss rule extend in the product liability context? Does it extent to products that are not claimed to be defective? Can the economic loss rule be circumvented by couching a claim differently?  While reading the below, consider these questions and issues, particularly if you are representing a plaintiff in a product liability-type of action, or defending a party in a product liability-type action. The Eleventh Circuit’s consideration of these issues may impact how you frame a claim or defense or willingness to stipulate as to a product defect.

A. Background of NBIS Construction

In NBIS Construction, a crane company purchased a crane from a broker.  Per the agreement, a manufacturer’s trained technician, through its distributor, was to provide onsite commissioning and train the crane company’s personnel per the operating manual so operators and employees could safely operate the crane. The distributor sent a representative that provided forty hours of training.  However, the distributor typically provides about eighty hours of training. The crane company claimed the trainer did not inform it of certain issues/risks and skipped other training issues. Later, as the crane company was operating the crane, the crane collapsed due to improper manipulation causing damage to itself. Notably, prior to the collapse, another collapse occurred in Japan due to the same improper manipulation issue. This prompted the manufacturer and distributor to update product safety information and issue a safety bulletin relative to the improper manipulation. Unfortunately, due to a delay in the issuance of the safety bulletin, the crane company did not get the safety bulletin until after the collapse.

The plaintiff (which was the managing general agent of the insurer of the crane company) sued the manufacturer’s distributor for negligence, negligent training, and a violation of Florida’s Deceptive and Unfair Trade Practices Act. The issue before the Eleventh Circuit was the negligence claim. The plaintiff claimed the manufacturer’s distributor was “negligent for failing to properly train [the crane company’s] employees in usage of the crane and for failing to send the product safety bulletin in a timely manner.” NBIS Construction, supra, at *3.  The distributor argued the economic loss rule precluded recovery because the distributor had no duty to protect the crane company from purely economic harms.  The parties stipulated the crane was NOT defective (as the collapse occurred due to improper manipulation and not a specific defect).  After a bench trial, the trial court ruled in favor of the plaintiff and rejected the distributor’s economic loss rule defense. The trial court held that since the crane was not defective, the plaintiff’s action was not one grounded in products liability law, but one based on negligent services where the economic loss rule does not apply.  The manufacturer appealed.

B. Florida Economic Loss Rule – Product Liability Context

“[T]he economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses.” It developed in large part to “protect manufacturers from liability for economic damages caused by a defective product beyond those damages provided for by warranty law.”


Thus, as the Florida Supreme Court later explained, “[i]n exchange for eliminating the privity requirements of warranty law and expanding the tort liability for manufacturers of defective products which cause personal injury, [it] expressly limited tort liability with respect to defectiveproducts to injury caused to persons or damage caused to property other than the defective

product itself.”


The Florida Supreme Court also refused to apply the rule in cases concerning professional malpractice, fraudulent inducement, negligentmisrepresentation, and statutory causes of action. Then, in Tiara, the Florida Supreme Court receded from its “prior rulings to the extent that they haveapplied the economic loss rule to cases other than products liability,” and returned “the economic loss rule to its origin in products liability.” Thisremains the state of the doctrine in Florida today.

NBIS Construction, supra, at *4-5 (internal citations omitted).

C. Inherently Dangerous Products – Duty to Warn and Applicability of Economic Loss Rule

The distributor argued the economic loss rule applies because it is a products liability case irrespective of the fact that the parties agreed the crane was not defective. The distributor contended the plaintiff’s negligence claims based on the failure to adequately train or promptly send the safety bulletin are duty to warn claims, where the economic loss rule does apply. In this regard, the distributor maintained that Florida law requires a distributor to warn of potential dangers with a product:

With respect to “inherently dangerous” products, the Florida Supreme Court explained the duty this way:

When a distributor of an inherently dangerous commodity places it in the channels of trade, then by the very nature of hisbusiness he assumes the duty of conveying to those who might use the product a fair and adequate warning of its dangerouspotentialities to the end that the user by the exercise of reasonable care on his own part shall have a fair and adequate notice ofthe possible consequences of use or even misuse.

And long ago, the Florida Supreme Court said that “a crane in operation is inherently dangerous.” The Florida Supreme Court has also found that a “amanufacturer has a duty to warn of dangerous contents in its product which could damage or injure even when the product is not used for its intended purpose.”

Florida’s intermediate appellate courts have applied the duty to warn in various cases, including those involving goods with “dangerous propensities.”

Further, Florida courts have described cases concerning this duty to warn as “products liability action[s] … based on negligence.”

Additionally, under Florida’s strict products liability law, a product may be defective because of an inadequate warning.

For an example of the economic loss rule applied to a failure to warn claim, [the distributor] directs us to the Florida Supreme Court’s decision inAirport Rent-A-Car, Inc. v. Prevost Car, Inc., 660 So. 2d 628 (Fla. 1995), receded from on other grounds by Tiara, 110 So. 3d 399. There, wecertified three questions to the Florida Supreme Court, including one asking whether, “under Florida law, a cause of action may exist outside thebar of the economic loss rule where the plaintiffs allege a duty to warn which arose from facts which came to the knowledge of the companyafter the manufacturing process and after the contract.” Id. at 629. The Florida Supreme Court answered no: the “failure to warn, without therequisite harm [to person or other property], will not circumvent the economic loss rule” in such circumstances. Id. at 632. There is anotherexample too. In Florida Power & Light, one of FPL’s allegations was that Westinghouse “failed to warn of potential problems” with respect to thesteam generators at issue. 510 So. 2d at 900. And the Florida Supreme Court, of course, concluded that the economic loss rule applied to bar FPL’s claim. Id. at 902.

NBIS Construction, supra, at *5-6 (internal citations omitted).

D. Negligent Services 

The plaintiff stated that the distributor got it wrong.  This case is not a products liability action demonstrated by the parties’ stipulation that the crane was not defective. Rather, the case is a negligent services case in which the economic loss rule does not apply.

 E. Certification to Florida Supreme Court

Hmm. Does the economic loss rule apply to the plaintiff’s claims against the distributor? The Eleventh Circuit is not so sure, hence the certification to Florida’s Supreme Court to address:

We find Florida law unclear as to the economic loss rule’s applicability here. On one hand, we see merit in [the distributor’s] argument that[plaintiff’s] theories of negligence are like the failure to warn theories found in products liability law. If [the distributor] could not be held liable foreconomic loss resulting from an inadequate training manual under Florida’s economic loss rule, then it makes sense for that rule to also shield [the distributor] from liability for economic loss arising from its failure to adequately train [the crane company] and to promptly send the product safetybulletin.

On the other hand, [the plaintiff] is correct that cases concerning product defects are at the heart of Florida’s economic loss rule. Indeed, “from theoutset, the focus of the economic loss rule was directed to damages resulting from defects in the product itself.” Even the case on which [the distributor] relies, Airport Rent-A-Car, concerned a defective product. And while [the distributor] is a distributor of the crane at issue, we wonderhow applying Florida’s economic loss rule in this case might affect Florida’s tort law with respect to defendants who are not in the distributive chain. Inother words, if a defendant, not in the distributive chain, negligently trained [the crane company] and the collapse of the crane’s boom resulted, wouldthe economic loss rule still apply? If the answer is yes, then that would appear to be an extension of Florida’s economic loss rule in tension with Tiaraand Am. Aviation. And if the answer is no, then it is worth considering why it makes sense to exempt [the distributor] from liability solely because it is a distributor of the product at issue.

NBIS Construction, supra, at *7 (internal citations omitted).

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


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


Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1stDCA 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.

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


There has been much talk about Florida’s new Civil Remedies Act (House Bill 837) that Governor DeSantis approved on March 24, 2023.  As it pertains to construction, here is how I see it with key bulletpoints on the impact this new Act has on the construction industry:

  • New Florida Statute s. 86.121– This is an attorney’s fees statute for declaratory relief actions to the prevailing insured to determine insurance coverage after TOTAL COVERAGE DENIAL. (Note: A defense offered pursuant to a reservation of rights is not a total coverage denial.) This right only belongs to the insured and cannot be transferred or assigned. And the parties are entitled to the summary procedure set forth in Florida Statute s. 51.011 requiring the court to advance the cause on the calendar. The new statute does say it does NOT apply to any action arising under a residential or commercial property insurance policy. (Thus, since builder’s risk coverage is a form of property insurance, the strong presumption is this new statute would not apply to it.)  Rather, the recent changes to Florida Statute s. 626.9373 would apply which provides, “In any suit arising under a residential or commercial property insurance policy, there is no right to attorney fees under this section.”
  • Florida Statute s. 95.11 – The statute of limitations for negligence causes of action are two years instead of four years. This applies to “causes of action accruing after the effective date of this act.”
  • Florida Statute s. 624.155 – Adds language relative to bad faith insurance claims including bad faith claims asserted under the common law.
  • Florida Statute 768.81 – Includes a greater percentage of fault section in the comparative negligence statute  that states, “In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.
  • Florida Statute s.  627.428– This statute was repealed. This was the attorney’s fees statute for insurance disputes.
  • Florida Statute s. 627.756 – This modified the language in this statute but still provides in a suit by an owner, contractor, a subcontractor, a laborer, or materialman against a surety under a payment or performance bond, if the claimant prevails, it can recover reasonable attorney’s fees for prosecuting the suit.
  • “This act shall not be construed to impair any right under an insurance contract in effect on or before the effective date of this act. To the extent that this act affects a right under an insurance contract, this act applies to an insurance contract issued or renewed after the effective date of this act.”

Please feel free to reach out to me if you view this Act differently.

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


Can a subsequent purchaser pursue construction defect claims relating to the original construction of the property?  This was the threshold issue on a motion for summary judgment by a drywall manufacturer against a subsequent purchaser of a home in Karpel v. Knauf Gips KG, 2022 WL 4366946 (S.D. Fla. 2022).  This matter deals with the defective Chinese drywall that was installed in homes years ago.  The plaintiffs, which were subsequent purchasers of a home, sued the manufacturer of the defective drywall for various theories including negligence, negligence per se, strict liability, breach of express and/or implied warranty, private nuisance, unjust enrichment, and Florida’s Deceptive and Unfair Trade Practices Act.

The trial court noted, from the onset, that Florida does NOT have a subsequent purchaser rule that prohibits subsequent purchasers from asserting construction defect claims. With this consideration in mind, the trial court went through the claims the plaintiff, as a subsequent purchaser, asserted against the manufacturer to determine whether they were viable claims as a matter of law.

Negligence Claim

The trial court found that a subsequent purchaser could sue in negligence.  “Florida courts have long allowed subsequent purchasers to sue for negligence including in construction defect litigation.”  Karpel, supra, at *2.

Negligence Per Se and Strict Liability Claims

The trial court held that the plaintiff’s negligence per se and strict liability claims were duplicative. Both could not stand; for this reason, the court entered summary judgment as to the duplicative negligence per se claim. “Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence.Karpel, supra, at *3 (quotation and citation omitted).

A subsequent purchaser could pursue a strict liability claim against a manufacturer.  “[A] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”  Karpel, supra, at *4 (quotation and citation omitted).

Even Section 402A of the Second Restatement of Torts, adopted by Florida’s Supreme Court, provides: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” Karpel, supra, at *4.

There are, however, limits on strict liability.

First, Florida disallows recovery in tort where plaintiffs only claim economic losses such as ‘damages for inadequate value, costs of repair, and replacement of the defective product, or consequent loss of profits—without any claim of personal injury or damage to other property.Karpel, supra, at *4 (citation omitted).

Second, Florida courts will disallow recovery for strict liability where the purchaser was subject to the common law doctrine of caveat emptor.”  Karpel, supra, at *4.

Thus, a subsequent purchaser’s strict liability claim could be pursued against a manufacturer provided such damages are not barred by the economic loss rule or the doctrine of caveat emptor (which applies to commercial property and property purchased at judicial auction sales).  Karpel, supra, at *4.

Breach of Implied Warranty

The trial court found that a subsequent purchaser could NOT sue a manufacturer for breach of implied warranty.  “[I]t is abundantly clear that in cases like these, where no contractual relationship between a subsequent purchaser and a manufacturer exists, the former’s recourse is a claim for strict liability.Karpel, supra, at *4.

Breach of Express Warranty

While a contractual relationship is typically required for breach of express warranty, this requirement is relaxed if the express warranty is intended to benefit subsequent purchasers.  “A manufacturer’s liability for breach of an express warranty derives from, and is measured by, the terms of that warranty.”  Karpel, supra, at *4 (quotations and citation omitted).  However, in this case, plaintiff’s breach of express warranty claim failed because the plaintiff never introduced any express warranty into the record.

Private Nuisance

The trial court held that the subsequent purchaser could NOT pursue a private nuisance claim against the manufacturer.   To sustain a private nuisance claim, the plaintiff must prove that the defendant’s maintenance of the nuisance was the proximate cause of the plaintiff’s damages.  Karpel, supra, at *8.  “The Plaintiffs’ ownership and current control over the drywall conclusively forecloses them from arguing that the Defendants actively “maintain” the ‘nuisance’ they complain of.”  Id.

Unjust Enrichment

The trial court held that the subsequent purchaser could NOT pursue an unjust enrichment claim against the manufacturer.  An unjust enrichment claim requires the plaintiff to prove that the plaintiff conferred a direct benefit on the defendant. “The Plaintiffs conferred no direct benefit on the Defendant.” Karpel, supra, at *8 (finding that plaintiffs, as subsequent purchasers, obtained their homes from previous owners so the plaintiffs conferred no direct financial benefit on the manufacturer).

Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA)

The trial court found that a subsequent purchaser could theortetically pursue a FDUTPA claim. “Because the law is clear that a plaintiff need not have actually relied on the purported deceptive or unfair practice, the Court’s analysis need not go further….The Plaintiffs’ status as subsequent purchasers does not foreclose them from arguing that the Defendants’ practices violated FDUTPA.”  Karpel, supra, at *9.

However, the trial court noted that actual damages under FDUTPA may implicate the economic loss rule because actual damages under the statute “are the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.”  Karpel, supra, at *9 (quotation and citation omitted). For this reason, the court ordered the plaintiff and defendant to submit supplemental briefing because if the economic loss rule is implicated, the FDUTPA claim will fail (due to the same limitations relating to the strict liability claim).

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



Florida’s Underground Facility Damage Prevention and Safety Act is set forth in Florida Statutes Chapter 556.  Any owner or operator of underground infrastructure as well as contractors that perform underground excavation and demolition operations are familiar (or, need to be familiar) with this Act and the requirements it imposes on them.

In a nutshell, this Act requires excavators to notify operators of underground facilities (e.g., pipelines, cables, sewers) through a notification system before excavating or demolishing an underground location.  Then notification system gives the operator of the underground facility two days’ advance notice that an excavation will be taking place.  After receiving this notice, the operator of the underground facility must mark the area where its infrastructure is located which could be affected by the underground excavation or demolition operations.  The Act further imposes duties on excavators to use increased caution, supervise mechanized equipment, perform excavation and demolition operations in a careful an prudent manner, and to re-notify the notification system if the operator’s marking is no longer visible so the location of the operator’s underground facility can be re-marked.

The Florida Supreme Court in Peoples Gas System v. Posen Construction, Inc., 46 Fla.L.Weekly S166b (Fla. 2021) recently analyzed whether the Act creates a private statutory cause of action.  This case dealt with a road contractor that ruptured an underground gas pipeline during an excavation.  The rupture caused an explosion that injured an employee of the road contractor.  A dispute arose between the operator of the underground gas line and the road contractor with the operator of the gas line claiming the excavator’s advance notification was deficient.  The injured employee sued the operator of the underground gas line and the operator settled with the employee.  The operator then sued the road contractor  to recover the amount of the settlement claiming it should be entitled to recover the settlement payment as damages under the Act or for “statutory indemnity.”  The issue was whether the Act provides any such private statutory cause of action.  The Florida Supreme Court held it does create a private statutory cause of action for violations sounding in negligence, but not for “statutory indemnity”:

(1) that the Underground Facility Damage Prevention and Safety Act creates a standalone cause of action; (2) that the cause of action sounds in negligence; (3) that liability under the Act is subject to proof of proximate causation [i.e., the defendant’s negligence needs to be the proximate cause of the plaintiff’s injury] and to the defense of comparative fault  [i.e., a party is liable for the damages they caused per Florida Statute s. 768.81]; (4) that “losses” recoverable under the Act can include purely economic damages, independent of personal injury or property damage; and (5) that the Act does not create a cause of action for “statutory indemnity.

Peoples Gas System, supra.

This decision that the Act creates a negligence-based cause of action  is supported by Florida Statute s. 556.106(2)(a) and (b) contained in the Act that discusses liability for violations of the Act.

It is uncertain what doors will be opened by this Florida Supreme Court decision.  However, what is clear is that a negligence-based statutory cause of action can be asserted for violations of the Act and the damages can include economic damages that have nothing to do with personal injury or property damage.


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



The economic loss rule lives to bar a claim against a product manufacturer in a real estate transaction.  In a products liability action, there needs to be personal injury or property damage, other than to the property itself, in order to recover economic damages.  Otherwise, the economic loss rule will bar the recovery of such economic losses when the economic losses deal to the product itself.  This is important to keep in mind in any product liability action against a manufacturer.

In a recent case, 2711 Hollywood Beach Condominium Ass’n, Inc., v. TRG Holiday, Ltd., 45 Fla. L. Weekly D2179a (Fla. 3d DCA 2020), a condominium association purchased the condominium from the developer.  Subsequently, it noticed leaks with the fire suppression system in the condominium and sued multiple parties for damages for repairs due to the leaks and the replacement of the fire suppression system.  One of the parties sued in negligence and strict liability was a manufacturer of pipe fittings used in the fire suppression system.  The manufacturer moved for summary judgment based on the economic loss rule and relying on the 1993 Florida Supreme Court opinion in Casa Clara Condominium Ass’n v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla. 1993), holding “the economic loss rule limited a defendant’s tort liability for allegedly defective products to injuries caused to persons or damage caused to property other than the defective product itself.”  2711 Hollywood Beach Conominium Ass’n, supra.  The trial court agreed with the manufacturer and granted summary judgment.  On appeal, the Third District affirmed based on the economic loss rule:

The Association bargained for, purchased and received a building; [the manufactuer’s] fittings were only a component of the FSS [fire suppression system], incorporated into the building. Applying the rule set forth in Casa Clara, the Association purchased a completed building from the developer. [The manufactuer’s] fittings were “an integral part of the finished product and, thus, did not injure ‘other’ property.”  Injury to the building itself is not injury to “other” property because the product purchased by the Association was the buildingSee Casa Clara, 620 So. 2d at 1247. The economic loss rule therefore bars the Association’s recovery as to [the manufacturer] to the extent that it sought damages to replace the FSS [fire suppression system] and repair damage to the building.

2711 Hollywood Beach Conominium Ass’n, supra (internal citations omitted).

Notably, in Casa Clara, homeowners sued a concrete supplier for supplying defective concrete that caused the reinforcing steel in the concrete in their homes to rust.  The concrete supplier, in an action that went up to the Florida Supreme Court, prevailed based on the economic loss rule because there was no personal injury or damage to property other than the property itself, which was the completed building.  As the Florida Supreme Court held:

The homeowners also argue that [the supplier’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.  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.

We also disagree with the homeowners that the mere possibility that the exploding concrete will cause physical injury is sufficient reason to abrogate the economic loss rule. This argument goes completely against the principle that injury must occur before a negligence action exists. Because an injury has not occurred, its extent and the identity of injured persons is completely speculative. Thus, the degree of risk is indeterminate, with no guarantee that damages will be reasonably related to the risk of injury, and with no possibility for the producer of a product to structure its business behavior to cover that risk. Agreeing with the homeowners’ argument would make it difficult “to maintain a realistic limitation on damages.”

Casa Clara, supra, at 1247 (internal citations omitted)

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



There is nothing like a good old-fashioned dispute between an owner and its general contractor and design professional relating to construction and design defects where both parties have a role in the owner’s damages.  There are arguments that both the general contractor and design professional substantially contributed to the defects and damages.  Are the contractor and design professional jointly and severally liable for the owner’s damages?  Or, does comparative fault apply where the trial of fact allocates the contractor’s and engineer’s percentage of fault for the defects and damage?    A recent case found that comparative fault applied such that the trier of fact, in this case the judge, could allocate damages based the judge’s finding of the parties’ percentage of fault.  (For more information in comparative fault, please check this article.).  Comparative fault is not what an owner ideally wants because joint and several liability would be preferred.  However, this is what the contractor and engineer would want since their liability for damages is predicated on their percentage of responsibility as opposed to being liable for all of the damages.

In Broward County, Florida v. CH2M Hill, Inc., 45 Fla. L. Weekly D1736a (Fla. 4th DCA 2020), a public owner hired an engineer for airport improvements that included a taxiway to be designed and constructed in accordance with the Federal Aviation Administration’s design requirements.   The public owner also hired (i) a program manager to serve as its on-site representative and (ii) a separate engineering firm to provide materials testing and inspection services.  The public owner also hired a contractor to construct the taxiway.

Prior to substantial completion of the taxiway, the public owner discovered indentations in the surface of the taxiway (referred to as rutting).  This discovery prompted the public owner to investigate.  The public owner directed the contractor to mill away two inches of asphalt and install new asphalt.   The contractor achieved substantial completion in September 2008 and final completion in November 2008.  The contractor then submitted its final payment application to the public owner.  The public owner notified the contractor that it would retain money to deal with repairs associated with the indentations in the surface of the taxiway.  The public owner hired a new engineer to design the repairs.  The repair design was more robust (better) than the original engineer’s design because the repair engineer believed the new design was necessary to achieve a 20-year lifespan for the taxiway. A new contractor performed the repairs.

The contractor sued the public owner for nonpayment.  The contractor also sued the engineer for professional negligence in the design of the taxiway.    The pubic owner counter-sued the contractor for breach of contract and sued the engineer for breach of contract and indemnification.  The public owner asserted that the contractor performed defective construction and the engineer committed errors, omissions, and defects in the design and was obligated to indemnify the public owner for liability arising out of the design.  The public owner also sued its program manager (on-site representative) and testing engineer; these two parties settled prior to trial.

At trial, the public owner’s expert testified that both the contractor and engineer contributed to the indentations in the surface of the taxiway.  The expert testified that the engineer’s design deviated from the Federal Aviation Administration’s requirements and was doomed to fail such that if the contractor complied with the design, it would still fail.  The expert further testified that while the contractor contributed to the indentations as it failed to construct subgrade per the engineer’s design, it was to a lesser contributing factor than the engineer.

The engineer’s expert testified that the indentations were caused by undercompaction performed by the contractor.  The expert further testified that the public owner’s program manager violated its standard of care by allowing the contractor to deviate from the engineer’s original design in numerous ways.

The contractor’s expert testified that the indentations were caused by the design and undercompaction.

The trial court found that both the engineer and the contractor’s breaches were the proximate cause of the redesign of the taxiway.  The trial court also found that the public owner’s program manager, which had settled prior to trial, was also liable.  The trial court further found that public owner’s total damages were $6,2703,303 of which $725,000 was paid to the public owner pre-suit by the program manager and testing engineer.  After deducting this amount from the total damages, the trial court allocated damages as follows: (1) 60% was allocated to the non-party program manager (that had settled pre-suit); (2) 25% was allocated to the contractor; and (3) 15% was allocated to the engineer.   The public owner appealed the allocation in the final judgment.  The public owner argued that the trial court should not have apportioned liability at all because comparative fault does not apply in breach of contract cases.  Instead, the public owner contended that the trial court should have found that the engineer and contractor were jointly and severally liable for the damage (indentations) because their separate contractual breaches caused a single, indivisible injury.

The Fourth District Court of Appeal disagreed with the public owner concluding that Florida Statute s. 768.81 dealing with comparative fault authorized the trial court to allocate fault.  While comparative fault under s. 768.81 deals with negligence actions, it defines a negligence action as a “civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.”  Broward County, Florida, supra, quoting Fla. Stat. s. 768.81.

The public owner’s claim against the professional engineer was predicated on the engineer breaching a contractual standard of care that required it to design the taxiway pursuant to the Federal Aviation Administration’s standards.  Although the public owner’s claims against the engineer were couched as a breach of contract, it was based on a theory of professional negligence (violation of a standard of care) warranting the application of comparative fault.

However, the public owner’s claims against the contractor were not based on a professional negligence theory.  Nonetheless, the Fourth District held that comparative fault did apply:

Applying a holistic approach to analyzing the complaint, we conclude that the contract action against [the contractor] fell under the umbrellas of the ‘negligence action’ against [the engineer], so that the circuit court’s allocation of fault was appropriate.  After all, [the contractor] was to perform the contract according to specifications designed by [the engineer], so the causes of action against each were necessarily intertwined.  To prove its case against [the contractor], the public owner was required to prove that [the contractor’s] ‘breach of its contractual responsibilities was a substantial factor in causing the [public owner’s] extensive damages.’   This is compatible with the concept of ‘fault’…and parallels the tort notion of a violation of a duty of care that is the proximate cause of damages.  Based on the evidence, the circuit court properly allocated fault among all actors whose conduct substantially contributed to the [public owner’s] damages.


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



shutterstock_523440886In a negligence action, the issue of whether a duty applies is a question of lawSee 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.


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