117 So. 3d 790
Fla. Dist. Ct. App.2013Background
- Gitenis, an employee of an independent contractor, was injured while using a split extension ladder to access a roof during post-Hurricane Wilma cleanup at Verano.
- Sterling Financial & Management, Inc. acted as the condominium association's property manager but did not itself supervise Moss Development or European Interiors & Exteriors, Inc.
- European owned the ladder and instructed the plaintiff to split it for roof access; Sterling did not communicate with the plaintiff or provide safety directives.
- Sterling's contract required maintenance and safety regarding the property but did not obligate Sterling to supervise subcontractors or workers or assure their safety.
- Plaintiff sued Sterling arguing Sterling's control over means/methods of work rendered Sterling liable under the exception to the general rule that a general contractor/owner is not liable for an independent contractor's employees.
- The trial court entered judgment for Sterling; the appellate court reversed, directing a verdict for Sterling on the theory Sterling did not exercise the type of control necessary to impose liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sterling's level of control over the independent contractor's work satisfies the exception to non-liability. | Gitenis argues Sterling actively controlled means and safety. | Sterling did not supervise or direct the contractor's means/methods; liability requires extensive control. | Sterling not liable; directed verdict for Sterling. |
Key Cases Cited
- Morales v. Weil, 44 So.3d 178 (Fla. 4th DCA 2010) (retention of control must be extensive to trigger liability)
- Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5th DCA 1999) (insufficient control where owner did not influence methods)
- St. Lucie Harvesting & Caretaking Corp. v. Cervantes, 639 So.2d 37 (Fla. 4th DCA 1994) (no control over how tasks were performed; liability not imposed)
- Strickland v. Timco Aviation Services, Inc., 66 So.3d 1002 (Fla. 1st DCA 2011) (ownership of safety gear does not equal control over methods)
- Sanna v. National Sponge Co., 209 N.J. Super. 60, 506 A.2d 1258 (N.J. Super. Ct. App. Div. 1986) (sufficient control where defendant supplied and then removed scaffolding materials)
- Cadillac Fairview, 468 So.2d 419 (Fla. 3d DCA 1985) (active participation in safety procedures can create liability)
- City of Miami v. Perez, 509 So.2d 343 (Fla. 3d DCA 1987) (retention of some supervisory rights not themselves liability)
- Van Ness v. Indep. Constr. Co., 392 So.2d 1017 (Fla. 5th DCA 1981) (retention of supervision must be such that contractor is not free to perform work as chosen)
- Arsement v. Spinnaker Exploration Co., 400 F.3d 238 (5th Cir. 2005) (requires actual exercised control over the manner of work)