MARK CLERKIN, APPELLANT,
v.
KENDALL TOWN & COUNTRY ASSOCIATES, LTD., A LIMITED PARTNERSHIP, APPELLEE
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Mark Clerkin appealed a summary judgment dismissing his negligence claim against Kendall Town & Country Associates for injuries sustained on the defendant's property during construction. The court reversed, finding genuine issues of material fact regarding whether the defendant was acting as its own general contractor or actively supervising construction work, either of which would establish a duty of care owed to Clerkin.
The court held that genuine issues of material fact exist regarding whether the defendant was acting as its own general contractor or actively supervising construction, either of which would create a duty of care owed to the plaintiff. Summary judgment in favor of the defendant was therefore inappropriate, and the defendant's lack of personal knowledge of the hole in the roof decking does not eliminate this duty.
[1] A property owner may be liable for injuries sustained by an employee of an independent contractor if the owner acted as its own general contractor.
[2] A property owner may be liable for injuries sustained by an employee of an independent contractor if the owner actively supervised and directed the construction work, not…
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Join FLexlaw to unlock all legal intelligence“genuine issues of material fact are presented on this record as to: (1) whether the defendant/owner Kendall Town & Country Associates, Ltd. was acting as its own general contractor on the construction project wherein the plaintiff Mark Clerkin was injured as an employee of an independent contractor”
Establishes the first key issue on appeal—whether the owner functioned as its own general contractor, which would impose a duty of care.
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Join FLexlaw to unlock all legal intelligenceMark Clerkin was injured as an employee of an independent contractor working on a construction project owned by Kendall Town & Country Associates, Ltd…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The final summary judgment under review is reversed and the cause is remanded for further proceedings upon a holding that genuine issues of material fact are presented on this record as to: (1) whether the defendant/owner Kendall Town & Country Associates, Ltd. was acting as its own general contractor on the construction project wherein the plaintiff Mark Clerkin was injured as an employee of an independent contractor, see, e.g., Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Smith v. Ussery, 261 So. 2d 164 (Fla.1972); Visingardi v. Tirone, 193 So. 2d 601 (Fla.1966); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Lewis v. Sims Crane Serv., Inc., 498 So. 2d 573, 574 (Fla. 3d DCA 1986), rev. dismissed, 503 So. 2d 327 (Fla.1987); Cadillac Fairview of Fla., Inc. v. Cespedes, 468 So. 2d 417, 421 (Fla. 3d DCA), rev. denied, 479 So. 2d 117 (Fla.1985); and (2) whether— even if the above-stated defendant/owner had hired a true general contractor for the subject construction project — the said defendant/owner actively supervised and directed the construction work on the said project, notwithstanding the existence of the said general contractor, see, e.g., Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Conklin v. Cohen, 287 So. 2d 56, 60 (Fla.1973); Visingardi v. Tirone, 193 So. 2d 601 (Fla.1966); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); E.J. Strickland Constr., Inc. v. Department of Agric. & Consumer Serv. of Fla., 515 So. 2d 1331 (Fla. 5th DCA 1987); Life From The Sea, Inc. v. Levy, 502 So. 2d 473, 474 (Fla. 3d DCA), rev. denied, 509 So. 2d 1118 (Fla. 1987).
If the plaintiff prevails at trial on either of the above issues, he will have shown that the above-stated defendant/owner owed a duty to exercise reasonable care for the safety of the plaintiff who, without dispute, was invited onto the defendant/owner’s property. Given the presence of genuine issues of material fact on these two issues, a summary judgment in favor of the defendant/owner was inappropriate. Moreover, the undisputed fact that the said defendant/owner did not personally direct the creation of and had no personal knowledge of the hole in the roof decking through which the plaintiff fell and was injured does not — contrary to the defendant/owner’s contention — change this result. See generally Conklin v. Cohen, 287 So. 2d 56 (Fla.1973); City of Miami v. Perez, 509 So. 2d 343 (Fla. 3d DCA), rev. denied, 519 So. 2d 987 (Fla.1987).
REVERSED AND REMANDED.
HUBBART and FERGUSON, JJ., concur.
BARKDULL, Judge,
dissenting.
I respectfully dissent. The record establishes without material dispute that (1) the defendant/landowner Kendall Town & Country Associates, Ltd. hired a general contractor to build the subject shopping mall, and did not, itself, serve as its own general contractor on the project; (2) the defendant/landowner Kendall Town & Country Associates, Ltd.’s participation in the said project was merely in the nature of insisting that established time schedules be honored and was not in the nature of influencing the manner in which the work was performed on the project, and (3) the defendant/landowner Kendall Town & Country Associates, Ltd. owed no duty to exercise reasonable care for the safety of plaintiff Mark Clerkin who was invited on the subject property as the employee of a subcontractor on the subject construction project. City of Miami Beach v. Perez, 509 So. 2d 343 (Fla. 3d DCA 1987), rev. denied, 519 So. 2d 987 (Fla.1987). Therefore I would affirm the summary judgment under review.
PER CURIAM.
The defendant/landowner Kendall Town and Country Associates Ltd. has filed a motion for rehearing, a motion for rehearing en banc and a motion to certify. We grant the motion for rehearing, vacate our opinion filed August 2,1988, and affirm the final summary judgment under review. We reach this result based on the legal analysis stated by Judge Barkdull in his dissenting opinion to our August 2, 1988 opinion — which dissenting opinion is hereby adopted as our opinion in this cause. In view of this decision, the remaining motions filed herein become moot.
REHEARING GRANTED; JUDGMENT AFFIRMED.
HUBBART, Judge
(dissenting).
I must respectfully dissent. I would deny the appellee’s motion for rehearing as well as the other motions filed herein, and adhere to our original decision reversing the final summary judgment under review.
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Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446 (Fla. 5th DCA 1999)…t Cecile Resort exercised control over his work. Even though Cecile Resort insisted that the work be completed the next day, that does not mean that they exercised any control over the project. See Clerkin v. Kendall Town & Country Associates, Ltd., 535 So. 2d 288 (Fla. 3d DCA 1988) (holding that merely insisting that established time schedule be honored does not constitute participation in the project). Second, our supreme court held in Hickory House, Inc. v. Brown, 77 So. 2d 249, 253 (Fla.1955), that an ow…
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Gregorio Armenteros v. Baptist Hosp. OF Miami, Inc., 714 So. 2d 518 (Fla. 3d DCA 1998)…ose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. See Martin v. Venice Hosp., 603 So. 2d 1377, (Fla. 2d DCA 1992); Clerkin v. Kendall Town & Country Assoc., 535 So. 2d 288 (Fla. 3d DCA 1988). Also, there was no evidence that although the hospital had hired a true general contractor for the construction project, the hospital actively supervised and directed the construction work on the project. See, e.g., Wills, 351 S…1 / 2
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Garcia v. Biltmore Court Villas, Inc., 534 So. 2d 1173 (Fla. 3d DCA 1988)…479 So. 2d 117 (Fla.1985); City of Mt. Dora v. Voorhees, 115 So. 2d 586 (Fla. 2d DCA 1959), cert. denied, 119 So. 2d 293 (Fla.1960). . This case does not involve a summary judgment as was involved in Clerkin v. Kendall Town & Country Assocs., Ltd., 535 So. 2d 288 (Fla. 3d DCA 1988). .See generally Annot., "General contractor’s lia-' bility for injuries to employees of other contractors on the project,” 20 A.L.R.2d 868 (1951). Although not argued and relevant to this opinion, this argument of appellant raise…
Previewing 3 of 6 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)
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Conklin v. Cohen, 287 So. 2d 56 (Fla. 1973)
- Cadillac Fairview OF Fla., Inc. v. Cespedes, 468 So. 2d 417 (Fla. 3d DCA 1985)
- City OF Miami v. Perez, 509 So. 2d 343 (Fla. 3d DCA 1987)
- Smith v. Ussery, 261 So. 2d 164 (Fla. 1972)
- King v. Clark (M.D. Fla. 2021)
- E.J. Strickland Constr., Inc. v. Dep't OF Agric. & Consumer Servs. OF Fla., 515 So. 2d 1331 (Fla. 5th DCA 1987)
- Life From THE SEA, Inc. v. Shlomo Levy and Charen Levy, 502 So. 2d 473 (Fla. 3d DCA 1987)