Non-Delegable Duty Involving Latent Property Defects.

Plaintiffs often sue property owners for alleged injuries that occur on their property due to the mere fact they own the property. In many cases, the property is leased and under the control of other entities that have a duty to maintain the property, and the owner has no active role in the alleged negligence. In cases of injuries from alleged construction defects, the Florida Supreme Court issued two rulings on the same day in 1967 declining to hold that a property owner owes a non-delegable duty to the public that are still controlling law today in Florida.

In Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla. 1967), the Plaintiff sued a restaurant owner, architect, and welding fabricator of a fan and its counterweight system when the counterweight fell on the Plaintiff due an unknown deficient weld. The Florida Supreme Court quashed an order of the 4th DCA which held the restaurant owner had a non-delegable duty to the Plaintiff merely for owning the restaurant. See Id. at 291. In reversing the 4th DCA, the Florida Supreme Court emphasized that the duty to an owner was solely “to use reasonable care in maintaining the premises in a reasonably safe condition and to have given the plaintiff timely notice or warning of latent and concealed perils ‘known to the defendant, or which by the exercise of due care should have been known to him’”. See Id. at 293 (emphasis added). The Florida Supreme Court further held that “cases stating exceptions to this doctrine do not, in any instance brought to our attention, involve latent defects or conditions which, as in the present situation, could not have been discovered by reasonable care, whatever conduct that standard may require in a particular case. The duty to exercise that reasonable care is nondelegable in the sense that a contract for its performance by another will not necessarily eliminate an owner’s responsibility. The duty, however, remains one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor’s negligence.” See Id. (emphasis added). Thus, the court granted a directed verdict to the restaurant owner. In its ruling in Mai Kai, Inc., the Florida Supreme Court further stated,

It will be apparent from a consideration of the rationale of the district court opinion in this case that application of the rule there enunciated, i.e. liability based on imputed negligence, will result in one standard of liability for a businessman who employs a contractor to construct the building in which he conducts his business, and another standard of liability (or nonliability) for one who purchases a building in which to do business, in which case any negligence of the builder cannot, of course, be imputed to a purchaser. Such a result is patently irrational and would, we think, add to the existing body of tort law a doctrine both novel and undesirable.

Id. at 293.

Similarly, in Washington Ave. Food Ctr., Inc. v. Modlin, 205 So. 2d 295 (Fla. 1967), issued on the same date as its Mai Kai, Inc. decision, the Florida Supreme Court also quashed the decision of the Third DCA in a very similar matter by citing the Mai Kai, Inc. decision as controlling. In Washington Ave. Food, a store owner and contractor were sued as the result of a customer’s death due to the store’s mezzanine falling on her. See, Modlin v. Washington Ave. Food Ctr., Inc., 178 So. 2d 596 (Fla. 3d DCA 1965),quashed and remanded, 205 So. 2d 295 (Fla. 1967). After the collapse of the mezzanine, it was determined that some of the columns had not been properly attached to the I-beams by the contractor. Id. at 598. The Third DCA held that the store owner had a non-delegable duty for the contractor’s negligence and was very clear on its basis for its ruling against the store owner as it stated, “we delude ourselves by talking about reasonable care. Negligence has nothing to do with the question of whether or not a store owner ought to be liable to a customer for the collapse of a store building. The decision is based upon a policy consideration.” See Id. at 598 (emphasis added). The Florida Supreme Court clearly disagreed with this policy decision of nondelegable duty and liability, reversed the order of the Third DCA, and remanded with instructions to dismiss the claims against the store owner. See Washington Ave. Food, 205 So. 2d at 296.