FORREST YAEGER, APPELLANT,
v.
FRANK D. TOLIN D/B/A FRANK D. TOLIN CONSTRUCTION COMPANY, APPELLEE
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Forrest Yaeger, a roofing foreman, was injured when an electrical fixture on a warehouse roof collapsed and he fell. He sued the prime contractor Frank Tolin for negligent failure to inspect the electrical installation. The trial court entered judgment in favor of Tolin notwithstanding the jury verdict, and the appellate court affirmed, finding Tolin had no duty to inspect because the electrical fixture installation had been deleted from his contract.
Tolin had no duty to inspect the electrical fixture installation because the contract was amended to delete the installation of light fixtures from his responsibilities. Accordingly, Tolin cannot be held liable for negligence based on failure to inspect work he was not contractually obligated to perform.
[1] A prime contractor may not be held liable for negligence in the installation of fixtures if the installation was deleted from the contractor's scope of work by an amendme…
[2] A plaintiff must demonstrate a duty of care owed by the defendant to sustain a claim of negligence.
Previewing 2 of 4 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“appellee's contract was amended and the installation of the light fixtures was deleted from the contract. Thus, under these circumstances there was no showing he had a duty to inspect the installation of the subject fixture.”
Establishes the basis for finding no duty to inspect—the work was not within Tolin's contractual obligations.
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Join FLexlaw to unlock all legal intelligenceFrank Tolin, a construction contractor, built a warehouse for Lora Realty pursuant to a standard A.I.A. contract. Approximately one year after complet…
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Plaintiff-appellant appeals from a motion for judgment in accord with directed verdict entered by the lower court in favor of defendant-appellee, Frank D. Tolin d/b/a Tolin Construction Company.
*62Pursuant to a standard form A.I.A. construction contract, appellee Frank Tolin built a plant and warehouse for Lora Realty, Tnc. About a year after completion of the building-, plaintiff-appellant, Forrest Yaeger, foreman of a roof repair crew, while bending over the periphery of the warehouse roof, leaned against an outside electrical fixture for support. The fixture collapsed and the plaintiff fell to the ground and suffered serious injuries. He filed a negligence action against appellee Tolin and others. The jury rendered a verdict against appellee Frank D. Tolin d/b/a Frank D. Tolin Construction Company and defendant Ben Benson d/b/a Scott Electric Company. However, the trial court thereafter entered a motion for judgment in accord with directed verdict for the appellee, Frank Tolin.
Appellant basically contends that Tolin, the prime contractor, was negligent in not inspecting the electrical work performed on the building. The cause of the failure of the light fixture in question appeared to be that the bolts fastening it to the building were too short and they did not, therefore, penetrate sufficiently the concrete in the building. The record reflects that the plaster veneer at this particular area was thicker than on other parts of the building. Thus, there remains the question whether an inspection would have failed to reveal that either the bolts were too short or the plaster too thick. More important, a further search of the record disclosed that appellee’s contract was amended and the installation of the light fixtures was deleted from the contract. Thus, under these circumstances there was no showing he had a duty to inspect the installation of the subject fixture. It follows that liability for negligence on the part of Tolin thereby is precluded. See 23 Fla.Jur. Negligence § 9 (1959).
Nevertheless, we have reviewed all the testimony and proper inferences from the testimony in light most favorable to plaintiff the verdict winner,1 and conclude that he has failed to sustain his burden in showing a duty on the part of appellee to inspect.
Accordingly, the judgment herein appealed must be and hereby is affirmed.
Affirmed.
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Gulfstar, Inc. v. Advance Mortg. Corp., 376 So. 2d 243 (Fla. 3d DCA 1979)…o Advance by Gulfstar which was breached. Therefore, the second amended complaint was subject to dismissal on this ground and the evidence failed to establish any duty or breach thereof. Judgment should have been for the defendants. Yaeger v. Tolin, 277 So. 2d 61 (Fla. 3d DCA 1973). See: Flamingo Drift Fishing, Inc. v. Nix, 251 So. 2d 316 (Fla. 4th DCA 1971). Compare: A. R. Moyer, Inc. v. Graham, infra; Kovaleski v. Tallahassee Title Co., infra. Further, the acts of Underwood, in selling the vessel and pledg…
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Weisfeld v. Peterseil Sch. Corp., 623 So. 2d 515 (Fla. 3d DCA 1993)…aw. On appeal, all the testimony and proper inferences from the testimony must be viewed in the light most favorable to the appellee, as the verdict winner in the trial court. Oliver v. Eisenman, 523 So. 2d 189 (Fla. 1st DCA 1988); Yaeger v. Tolin, 277 So. 2d 61 (Fla. 3d DCA 1973); Graves v. Wiggins, 257 So. 2d 268 (Fla. 3d DCA 1972); Krasny v. Richter, 211 So. 2d 612 (Fla. 3d DCA 1968). The majority fails to adhere to this rule. The record reflects Dr. Peterseil attempted to persuade Weisfeld to stay at t…
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Downtown Dev. Auth. v. Snediker, 355 So. 2d 456 (Fla. 3d DCA 1978)…. In the absence of the proof of such a duty, an essential element of a cause of action for negligence, appellee’s cause of action against appellant must fail. See, e. g., Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla.1967); and Yaeger v. Tolin, 277 So. 2d 61 (Fla. 3d DCA 1973). The record shows, as appellant contends, that the evidence was insufficient to show the requisite element of a duty on the part of appellant to appellee. This conclusion is reached only after a careful consideration of all the ev…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Samuel B. Krasny et ux. v. Richter, 211 So. 2d 612 (Fla. 3d DCA 1968)
- Tranter v. Noble Hume Wible, 191 So. 2d 595 (Fla. 4th DCA 1966)