In this рersonal injury action, the plaintiff below, Mariusz Gitenis, was injured
RAK Delray Limited Partnership, based in New York, owned Verano in Delray Beach, a project under construction renovations to convert its apartments into condominiums. To effectuаte the project, the owner entered into a construction contract with Moss Development Co. to perform and supervise the project. Moss Development then hired INCOG, Inc. to be the construction supervisor and to hire the subcontractors. The plaintiff worked as an independent contractor of European Interiors & Exteriors, Inc., which was a subcontractor hired by INCOG to work on the interiors of units. European received its instructions on the Veranо job from Moss Development or INCOG; both dealt with Piotr Zawadski, an owner of European, who communicated with the plaintiff in Polish because the plaintiff did not speak English.
Through the condominium association that it controlled, the owner entered into a garden variety condominium management agreement with Sterling “to manage and operate the Community’ on the owner’s behalf pursuant to all applicable “laws, regulations and requirements” and the association’s аrticles of incorporations, bylaws, and declaration of condominium. Article 2.05 of the agreement generally required Sterling to maintain the property, stating as follows:
Subject to the direction and at the expense of the Association, and in accordance with the Budget, [Sterling] shall during the term of this Agreement cause the Association Property to be maintained according to appropriate standards of maintenance consistent with the charаcter of the Community, the Florida Statutes and the Association Documents and will make or install, cause to be made and installed, or do or cause to be done at Association’s expense all necessary or desirable repairs, interior and exterior cleaning, painting and decorating, plumbing, alteration, replacement, improvement and other normal maintenance and repair work on and to the Property in accordance with the standards and conditions reasonably specified by Association from time to time. Agent will not make unbudgeted expenditures for such purposes without the prior approval of Association, unless emergency repairs are necessary for the preservation of the Property or for the safety of the occupants, or are required to avoid the suspension of any necessaxy service to the property.
On behalf of the owner, Sterling inspectеd the renovation work for proper completion. Nothing in the contract obligated Sterling to supervise the work of Moss
On October 24, 2005, Hurricane Wilma hit South Florida, resulting in substantial damage to the Verano project’s landscaping and roofing systems. For the cleanup, Moss Development, INCOG, and the subcontractors worked on an oral contract with the owner to clean up the property on a time and materials basis plus 10%. A Sterling employee instructed Mоss Development to have European’s people assess the damage to the roofs and take photos; Moss Development and INCOG told Za-wadski to have European’s people stop working in the apartments to deal with roof problems. Zawadski had supervised roofing work since 1995 and he and the plaintiff had the necessary experience to work on the roofs. Zawadski then instructed the plaintiff and the other workers to clear debris from the roads and remove the mess from the roofs.
On the day of the accident, the plaintiff removed European’s extension ladder from his truck. The plaintiff and another worker determined they needed only eight feet of ladder to access the roof, so they divided the extension ladder into two parts; the plaintiff testified that his boss, Zawadski, ordered him to take the extension ladder apart and that he would have been fired if he refused. Each half of the ladder was used tо access the roof. A third worker warned the plaintiff not to put the part of the ladder without rubber feet on cement, so it was placed on asphalt. Just before the accident, as the plaintiff was preparing to descend from a roof, someone yelled for him to wait because no one was holding the ladder. The plaintiff ignored the warning and the ladder slipped, causing the plaintiff to fall to the ground.
No one from Sterling spoke Polish, so no one from Stеrling communicated directly with the plaintiff. Likewise, no one from Sterling told the plaintiff or European how to gain access to the roofs. Rather, Sterling’s role, as the property manager, was to assist, facilitate, and coordinate the work done on the property, which it did by identifying the types of jobs to be completed for the post-hurricane clean-up without telling the contractors how to do them or hiring its own subcontractors. Thus, as with any construction projеct, it was the obligation of the general contractor, not Sterling, to hire subcontractors, oversee the work performed by subcontractors, and maintain the safety of the project.
To pin legal responsibility for the accident on Sterling, the plaintiff relied on skillfully and carefully phrased general questions about Sterling’s responsibility for safety at Verano. For example, one Sterling witness, (1) agreed that “if there was something hazardous or amiss on the propеrty,” it was her “responsibility to report” it; (2) agreed that one duty of a property manager was “to make sure that everything on the property was safe”; (3) agreed at her pretrial deposition that a property manager should “make sure that whoever is working on the property is doing so in a safe manner;” (4) indicated that if she saw something on a job that was unsafe, she would have spoken to Moss Construction or the particular contractor in charge; and (5) answered “Yes” at her deposition to the question of whether it would “be fair to say that ... the licensed property manager for Verano at the time of this accident, would be involved
The general rule is that “ ‘one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.’ ” Morales v. Weil,
The rationale for the general rule is that since the employer of an independent contractor “has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise,” and it is the contractor that is the “proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.” Restatement (Second) of Torts § 409, cmt. b (1965); see Armenteros v. Baptist Hosp. of Miami, Inc.,
To prove the requisite control over an independent contractor in the absence of a written contract, the plaintiff must show that the employer “ ‘actually exercised control оver the manner in which the independent contractor’s work was performed.’ ” Arsement v. Spinnaker Exploration Co.,
The amount of control needеd to pierce the general rule’s “shield of liability must be extensive.” Morales,
*795 It is not enough that [the employer of an independent contractor] has merely a general right to order the work stopped or resumed, to inspect the progress or to receive reports, to make suggestions or recommendatiоns which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his oum way.
(Emphasis added); see also Van Ness v. Indep. Constr. Co.,
an owner has a right to inspect the work of an independent contractor to determine that the work conforms to the contract and to reject unsatisfactory work and demand that it be made satisfactory. Moreover, this reservation is not a usurpation of control and does not change an owner from a passive non-participant to an active participant in the construction. To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way.
City of Miami v. Perez,
This case is similar to those cases that have found an inadequate retention of control to impose liability on the employer of an independent contractor for thе contractor’s negligence. In Cecile Resort, Ltd., the defendant hired an independent contractor to paint the defendant’s flag pole.
Similarly, in St. Lucie Harvesting & Caretaking Corp. v. Cervantes,
plaintiff was not injured because of any condition of the defendants’ premises or equipment. Nor were defendants exercising any control over the manner in which this crew was performing its work. Defendants’ foreman told the in*796 dependent contractor’s foreman when the crew had picked enough fruit at one grove, and where the crew should begin picking thereafter, but exercised no control over how the crew got to the next grove, what equipment was used, what route the crew took, how fast the crew went, or who drove the goat. The goat, which was allegedly dangerous, was owned by the independent contractor, not the defendants. The plaintiff, who was not experienced in driving the goat on the highway, was told to drive the goat by the foreman of the independent contractor, not the defendants.
Id. at 40.
Finally, in Strickland v. Timco Aviation Services, Inc.,
By contrast, in those cases imposing liability, the independent contractor’s employer occupied more than a mere supervisory role, typically by assuming extensive control over safety procedures or аctively participating in the operation itself. In Cadillac Fairview, for example, the plaintiff, the employee of an independent contractor, suffered severe injuries at a construction site after falling through an opening that was unprotected by safety guard rails.
More analogous to the case at hand, in Sanna v. National Sponge Co., 209 NJ.Super. 60,
first providing and then removing the forklift from the jerry-rigged scaffolding, not providing conventional scaffolding in the first place once it voluntarily had participated in the undertaking to help furnish scaffolding materials, and its general maintenance of the work area in the aspect of cleanliness.
Id. at 1261. In reaching this conclusion, the court noted that “[i]f the defendant had done nothing and plaintiffs employer JSC had assumed sole control over the ladders and scaffolding used to gain access to the work area, plaintiff would have no case against defendant on this theory.” Id. at 1262. However, once the defendant “undertook to supply parts of the scaffolding, especially in view of the past relations of defendant and JSC where defendant frequently provided equipment to its contractor, ... a jury could find that defendant exercised the requisite control over the jobsite to create a liability exposure.” Id. at 1263; see also, e.g., Titan Steel Corp. v. Walton,
In this case, there is even less of a basis than existed in Cecile Resort, Cervantes, Strickland, and Morales to find Sterling to have exercised control over the way European’s hiree, the plaintiff, accessed the roof. European owned the offending ladder. European told the plaintiff to split it apart to use it to get on the roof. The
Imposing liability upon Sterling would do violence to the rationale behind the exception to the general rule that one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work; European was in total control of the ladder and how it was used, so it therefore had the “responsibility of preventing the risk, and bearing and distributing it.” Restatement (Second) of Torts § 409, Comment b (1965). The absence of aсtual facts showing how Sterling exercised control over the job cannot be overcome by vague, after-the-fact questions about general policy which make reference to legal code words. Careful vocabulary selection during litigation cannot overcome the absence of meddlesome conduct prior to the occurrence of an accident by one who employs an independent contractor. To plaсe liability on Sterling in this case would open the door to liability for every Florida property owner hiring an independent contractor who negligently uses his own tools.
The final judgment is reversed and remanded to the circuit court for entry of a directed verdict in favor of the defendants.
NOTE: Levine, J., did not participate in oral argument, but has had the opportunity to review the entire case, briefs, and oral argument proceedings.
Notes
. Section 414 of the Restatement (Second) of Torts states:
One who entrusts work to an independent сontractor, but who retains the control over any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Comment a of section 414 emphasizes that it is when the employer of an independent contractor "retains control over the operative detail of doing any part of the work" that "he is subject to liability for the negligence of the employees” of the independent contractor.