PETER G. NOACK F/U/B/O AMERICAN STATES INSURANCE COMPANY, APPELLANT,
v.
B. L. WATTERS, INC., APPELLEE
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American States Insurance Company, subrogated to the rights of a homeowner, appealed a summary judgment dismissing its negligence action against a home builder for damages caused by a defectively installed propane gas system. The court reversed, holding that genuine issues of material fact existed regarding whether the gas contractor was the builder's employee or independent contractor, and whether the builder had a duty to inspect the inherently dangerous gas installation.
The court reversed the summary judgment, holding that Watters failed to conclusively establish the absence of a genuine issue of material fact regarding whether Cal-Gas was an employee or independent contractor, and that even if an independent contractor, an employer may be vicariously liable when the contractor is delegated a duty expressly undertaken under a specific agreement or performs inherently dangerous work.
[1] A party moving for summary judgment must conclusively show the absence of any genuine issue of material fact.
[2] Every reasonable inference must be drawn in favor of the party against whom a motion for summary judgment is made.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an employer may be vicariously liable for the acts of independent contractors to whom he delegates a duty expressly undertaken under a specific agreement, Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), or which is inherently dangerous”
Establishes the legal basis for vicarious liability even when using independent contractors, particularly for inherently dangerous activities like gas line installation.
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Join FLexlaw to unlock all legal intelligencePeter Noack contracted with B.L. Watters, Inc. to build a home using a standard house plan offered by Watters. A fire later damaged the house, caused …
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FRANK D. UPCHURCH, Jr., Judge.
American States Insurance Company, subrogated to the rights of Peter G. Noack after payment of policy benefits, sued appellee, Watters. American appeals from a summary judgment entered against it. Noack contracted with Watters to have a home built and selected a standard house plan offered by Watters. The house was later damaged by a fire which, according to a fire analysis expert, was. caused by a propane gas leak that had its origin in a cracked flare nut in the fuel line. The expert further opined that the method of installation of the gas system violated numerous building code sections. The system was installed by an employee of Cal-Gas, a local natural gas firm.
Watters moved for summary judgment contending that it did not design or install the system and had no duty to inspect it. The court granted summary judgment and this appeal followed.
To be entitled to summary judgment, Watters was obligated to show conclusively the absence of any genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Every reasonable inference must be drawn in favor of American as the party against whom the motion was made. Wills v. Sears Roebuck & Company, 351 So. 2d 29 (Fla.1977).
While the record indicates that an employee of Cal-Gas installed the system, this does not end the matter since an employer may be vicariously liable for the acts of independent contractors to whom he delegates a duty expressly undertaken under a specific agreement, Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959), or which is inherently dangerous.1 Atlantic Coast Dev. v. Napoleon Steel, 385 So. 2d 676 (Fla. 3d DCA 1980); Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So. 2d 767 (Fla. 3d DCA 1968). Here the complaint alleged that Cal-Gas was Watters’ employee and that Watters was under a duty to exercise reasonable care in the design, construction, inspection and/or supervision of its agents, employees or representatives, including its gas system contractors. American further alleged that Watters’ employees, acting within the scope of their employment, were negligent in installing the gas system. Watters denied these allegations.
Watters contends that American failed to produce evidence establishing an employment relation and relies on cases such as Harvey Building Inc. v. Haley, 175 So. 2d 780 (Fla.1965) and F & R Builders v. Lowell Dunn, 364 So. 2d 826 (Fla. 3d DCA 1978). In Harvey, the court held that where a motion for summary judgment is supported by evidence which reveals no genuine issue of material fact, it is not sufficient for the opposing party merely to assert that an issue does exist. Rather, the opposing party must come forward with evidence sufficient to generate an issue on a material fact. In F & R Builders, the Third District Court of Appeal restated this principle in noting that issues of fact do not arise merely because a party disagrees with the facts established by competent evidence submitted by the party moving for summary judgment.
This principle is inapplicable here because Watters did not present evidence denying the existence of an employment relationship between itself and Cal-Gas. The only clear evidence in the record indicates that Cal-Gas, not Watters, installed the gas system. There is no evidence indicating whether Noack or Watters was responsible for installation of the system. Watters relies on Noack’s testimony in his deposition but viewing this evidence in a light most favorable to American, Wills v. Sears Roebuck & Co., 351 So. 2d at 32, it merely indicates that he contacted Cal-Gas to supply gas for the system and not to install the gas lines.
REVERSED.
ORFINGER and SHARP, JJ., concur. . The installation of natural gas lines is an inherently dangerous activity. See Farber v. The Houston Corp., 150 So. 2d 732 (Fla. 3d DCA 1963); Russell v. Jacksonville Gas Corp., 117 So. 2d 29 (Fla. 1st DCA 1960).
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Wright v. Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984)…t of Yurko’s motion for summary judgment was to shift the burden to Wright to come forward and show with proper proofs that a material question of fact existed as to whether Yurko brought the suit without probable cause. Noack v. B.L. Watters, Inc., 410 So. 2d 1375 (Fla. 5th DCA 1982); Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962). Probable cause in the context of a civil suit is measured by a lesser standard than in a criminal suit. But obviously less in the way of grounds for belief will.be requir…
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Irving v. Doctors Hosp. OF Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA 1982)…and the latter will be deemed to be the employee of the general contractor, for whose failure to use due care in repairing said premises the general contractor will be held responsible. 114 So. 2d at 819-820. See also: Noack v. B. L. Waters, Inc., 410 So. 2d 1375 (Fla. 5th DCA 1982); Restatement, Second, Torts, § 429. Granted that the contract involved in the Mills case was express and the contractual relation existing between a hospital and an emergency room patient is implied, the ultimate responsibility o…
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Madison v. Payne H. Midyette, 541 So. 2d 1315 (Fla. 1st DCA 1989)…axley v. Dixie Land & Timber Co., 521 So. 2d 170 (Fla. 1st DCA 1988) (cutting, loading and delivering of logs); Fisherman’s Paradise, Inc. v. Greenfield, 417 So. 2d 306 (Fla. 3d DCA 1982) (replacement of a refrigerator); Noack v. B.L. Watters, Inc., 410 So. 2d 1375 (Fla. 5th DCA 1982) (installation of natural gas lines); Hill v. Walker’s Cay Air Terminal, Inc., 405 So. 2d 198 (Fla. 4th DCA 1981), review denied, 412 So. 2d 471 (1982) (flying of an airplane); Atlantic Coast Dev. Corp. v. Napoleon Steel Contracto…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980)
- Mills v. Otto Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959)
- Bialkowicz v. PAN Am. Condo. NO. 3, Inc., 215 So. 2d 767 (Fla. 3d DCA 1968)
- Rosenhouse v. Issac Hirsh Ever, 150 So. 2d 732 (Fla. 3d DCA 1963)
- E. H. Russell and his wife v. Jacksonville GAS Corp., 117 So. 2d 29 (Fla. 1st DCA 1960)
- F & R Builders v. The Lowell Dunn Co. & Liberty Mut. Ins. Co., 364 So. 2d 826 (Fla. 3d DCA 1978)