FRANK ROSS, APPELLANT,
v.
ELI HEITNER, AS EXECUTOR OF THE ESTATE OF JENNIE HEITNER, DECEASED, AND TRULY NOLEN, INC., JOINTLY AND/OR SEVERALLY, APPELLEES
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This case involves a tenant suing their landlord and an exterminating company for injuries sustained from extermination work. The appellate court affirmed the dismissal of the breach of warranty claim but reversed the dismissal of the negligence claim, finding it sufficiently alleged.
Yes, the amended complaint sufficiently stated a claim for negligence against the landlord. The court found that the landlord's duty is non-delegable when the work performed by an independent contractor is inherently dangerous, and the complaint alleged the creation of an inherently dangerous condition through noxious fumes.
“We hold that the trial court ruled correctly on the warranty count, but was in error in holding the negligence count was insufficient.”
Establishes the court's decision on the two counts of the amended complaint.
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Join FLexlaw to unlock all legal intelligenceA tenant (lessee) sued their apartment owner and an exterminating company for injuries allegedly caused by extermination work. The amended complaint i…
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This was an action at law by a lessee of an apartment against an apartment house owner and an exterminating company for injuries alleged to have resulted from extermination work. An amended complaint presented one count on breach of warranty and a second count on negligence. The trial court granted the owner’s motion and dismissed the amended complaint as to the owner. The plaintiff has appealed. We hold that the trial court ruled correctly on the warranty count, but was in error in holding the negligence count was insufficient. The amended complaint charged that chemicals used caused an inherently dangerous condition through creation of noxious fumes and that defendants failed to warn or apprise plaintiff thereof, proximately causing plaintiff’s injuries. Counsel *870were in agreement that the general rule that an independent contractor’s negligent performance may not be charged against his “employer” is subject to exceptions, including the exception that a landlord’s duty is non-delegable as to inherently dangerous work of an employed independent contractor (Easton v. Weir, Fla.App.1960, 125 So.2d 115), but it was contended by appellee that sufficient facts were not alleged to meet such exception. We can not agree. It was expressly alleged that an inherently dangerous condition was created by producing noxious fumes. See Medley v. Trenton Inv. Co., 205 Wis. 30, 236 N.W. 713, 76 A.L.R. 1250. The judgment of dismissal is reversed, and the cause is remanded for further proceedings on count two of the amended complaint.
Affirmed in part and reversed in part.
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Bialkowicz v. PAN Am. Condo. NO. 3, Inc., 215 So. 2d 767 (Fla. 3d DCA 1968)…ich is applicable here. That exception may be stated as: When the nature of the work done by an independent contractor is inherently dangerous, then the duty of care in its performance is non-delegable by the employer. Ross v. Heitner, Fla.App.1963, 156 So. 2d 869; Easton v. Weir, Fla.App.1960, 125 So. 2d 115. Yet, there is a qualification even to this particular exception, which, if not raised here, might cause confusion later. This “exception to the exception” is based on Slavin v. Kay, Fla. 1958, 108 So. 2…
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MAI KAI, Inc. v. Mary Colucci and her husband, 205 So. 2d 291 (Fla. 1967)…upon petition for certiorari in this Court. See opinion filed November 29, 1967, 205 So. 2d 295. . Hickory House v. Brown, Fla.1955, 77 So. 2d 249, 252. . Goldin v. Lipkind, Fla.1950, 49 So. 2d 539, 27 A.L.R.2d 816; Ross v. Heitner, Fla.App.1963, 156 So. 2d 869; Easton v. Weir, Fla.App.1960, 125 So. 2d 115; Sec. 426, Rest. Torts.…
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McCALL v. Ala. Bruno's, Inc., 647 So. 2d 175 (Fla. 1st DCA 1994)…. 3d 1982); Atlantic Coast Dev. v. Napolean Steel, 385 So. 2d 676 (Fla. 3d DCA 1980); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222 (Fla. 3d DCA 1978); Florida Power & Light Company v. Price, 170 So. 2d 293 (Fla.1964); Ross v. Heitner, 156 So. 2d 869 (Fla. 3d DCA 1963).…
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- Easton v. Weir, 125 So. 2d 115 (Fla. 2d DCA 1960)