First DCA
Garcia v. Southern Cleaning Service, Inc.
1st DCA
5/10/23, Judge Lewis
Topics: Negligence; Premises Liability; Summary Judgment Standard, Transitory Foreign Substance, Vicarious Liability; Writ of Certiorari; Writ of Prohibition; Writ of Quo Warranto; Wrongful Death
Southern Cleaning contracted with Winn-Dixie Stores, Inc., a grocery store chain, to provide janitorial services. Then, Southern Cleaning subcontracted that work to PAM Cleaning, Inc., an independent contractor.
Garcia was an employee of a Winn-Dixie store, and she suffered a fall while at work. She sued Southern Cleaning in negligence for failing in a duty to warn employees and invitees of unreasonably slippery floors.
Southern Cleaning moved for summary judgment, arguing that it was not liable for the acts of an independent contractor like PAM. Its contract with PAM contained language where Southern Cleaning would not be liable for damages caused by PAM.
Garcia argued that Southern Cleaning could not delegate its duty, but the trial court held that Southern Cleaning had no duty to Garcia, so it granted summary judgment.
On appeal, the DCA recognized that a party who hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.
Garcia relied upon cases wherein the injured party was also a party to the contract. Following a 3d DCA case, the First DCA held that Southern Cleaning’s contract with Winn-Dixie did not create a nondelegable duty on Southern Cleaning to Garcia, a non-party to the contract.
The First DCA noted that Garcia argued on appeal that the type of work involved entailed a peculiar risk, which created a duty, but the DCA did not reach that issue because it was not preserved. Notably, CHIEF JUDGE ROWE CONCURRED IN RESULT ONLY.
https://supremecourt.flcourts.gov/content/download/868437/opinion/download%3FdocumentV ersionID=94a42bdd-b1b0-4a35-880d-39b1c8bd6362
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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