Opinion
No. 1D22-164.
05-10-2023
Jodi GARCIA, Appellant, v. SOUTHERN CLEANING SERVICE, INC., Appellee.
William D. Hall , Tallahassee, for Appellant. Diane M. Longoria and J. Andrew Talbert of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Appellee.
William D. Hall , Tallahassee, for Appellant.
Diane M. Longoria and J. Andrew Talbert of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Appellee.
Lewis, J.
Appellant, Jodi Garcia, appeals a final summary judgment entered in favor of Appellee, Southern Cleaning Service, Inc. Appellant argues that the existence of genuine issues of material fact arising from a contract to which she is not a party precludes summary judgment and that the trial court erred in adopting Appellee's proposed order. For the reasons that follow, we reject both arguments and affirm the final summary judgment.
Factual Background
As found by the trial court, Appellee entered into a contract with Winn-Dixie Stores, Inc. to provide it with floor cleaning and janitorial services. Appellee then subcontracted the work to PAM Cleaning Inc. ("PAM"), an independent contractor. After falling in the Winn-Dixie store at which she was employed, Appellant filed a negligence action against Appellee, alleging in part that it breached its duty of care to warn Winn-Dixie employees and invitees of the unreasonably slippery floors that caused her injuries.
Appellee moved for summary judgment, arguing that it was not liable for the acts of an independent contractor and relying upon the Third District's opinion in Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993). In support of its motion, Appellee submitted its contract with PAM, which provided that in no event would it be liable for any damages caused by PAM. In her response to the motion, Appellant asserted that Appellee had a nondelegable duty to ensure that the work performed at the Winn-Dixie store was done in a non-negligent fashion. Appellant filed Appellee's contract with Winn-Dixie in support of her opposition to the summary judgment motion. During the summary judgment hearing, Appellant's counsel argued, "The contract between Winn-Dixie and [Appellee] is the lynchpin of the entire case." Appellee's counsel asserted, "What [Appellant] would suggest is that every time a landowner or any other contractor enters into a subcontract with an indemnity provision, then they have therefore made themselves subject to direct claims by people who are not parties to the contract. That is not Florida law."
Thereafter, the trial court stated that it would give "a little more thought and read over it again" and that the "prevailing person will prepare the order." Through an email that followed, the trial court stated its intent to grant the summary judgment motion, while noting that it had "reviewed the Defendant's MSJ along with affidavit and contract exhibit, Plaintiff's Notice of Filing in Response to the MSJ, and applicable case law, and considered argument of counsel." The trial court asked Appellee's counsel to prepare an order in accordance with its ruling.
Over Appellant's written objections, the trial court adopted Appellee's proposed order and entered the final summary judgment that is the subject of this appeal. Therein, the court noted the general rule that one is not responsible for the negligence of its independent contractors, and it rejected Appellant's argument that Appellee's contract with Winn-Dixie made the nondelegable duty exception to the general rule applicable in this case. The trial court distinguished the case law relied upon by Appellant on the basis that she was not a party to Appellee's contract with Winn-Dixie, and it found persuasive the Carrasquillo case cited by Appellee. Finding that Appellee had no duty to Appellant and that no genuine issues of material fact existed, the trial court granted Appellee's motion. This appeal followed.
Analysis
Addressing first Appellant's argument that the trial court erred in granting summary judgment, we review the issue de novo. Dudowicz v. Pearl on 63 Main, Ltd., 326 So.3d 715, 718 (Fla. 1st DCA 2021). Effective May 1, 2021, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510 to adopt the federal summary judgment standard. In re Amends. to Fla. Rule of Civil Proc. 1.510, 317 So.3d 72, 73-77 (Fla. 2021). Rule 1.510 now provides in part that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law."
Appellant contends that Appellee's contract with Winn-Dixie created a nondelegable duty by which it is liable for the injuries she sustained while in the store. As we have explained, a party that hires an independent contractor may be liable for the contractor's negligence where a nondelegable duty is involved. Tuong Vi Le v. Colonial Freight Sys., Inc., 291 So.3d 146, 149 (Fla. 1st DCA 2019). Such a duty may be imposed by statute, contract, or the common law. Id. 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. Id.
As the trial court found, Appellant relies upon cases that are distinguishable from this case because she was not a party to Appellee's contract with Winn-Dixie. For instance, in Mills v. Krauss, 114 So.2d 817, 820 (Fla. 2d DCA 1959), the Second District held that the duty of a general contractor to use due care in repairing the premises of another, insofar as it is applicable to the owner of the premises who was in contractual privity with the general contractor, is a nondelegable duty that may not be committed to an independent contractor. Similarly, in Shands Teaching Hospital and Clinic, Inc. v. Juliana, 863 So.2d 343, 344 (Fla. 1st DCA 2003), we affirmed a final judgment holding the appellant hospital vicariously liable for a perfusionist's negligence that injured the appellees' child. We noted that the possibility that the perfusionist's employer could be found to be an independent contractor did not alter the fact that the appellant breached the contractual undertaking it made to the appellees. Id. at 350; see also Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 189 (Fla. 5th DCA 2006) (noting that Juliana "offers an example of a hospital's liability based on its contract with the patient").
We agree with the trial court that the facts of this case are more closely aligned with the Third District's Carrasquillo opinion. The appellant in that case appealed a summary final judgment entered in favor of the appellee, a carpet installation service. See 615 So. 2d at 862. The appellant, who was employed by the Grand Bay Hotel ("Grand Bay"), alleged that he tripped and fell over a bulge in a hotel carpet that had recently been installed by an installer employed by the appellee under an agreement with Grand Bay. Id. The appellee successfully moved for summary judgment, relying on the rule that it, as a general contractor, lacked control over the subcontractor who installed the carpet. Id. In opposition to the motion, the appellant argued in part that the appellee's duties relating to the carpet installation were nondelegable. Id. Although the appellant cited Mills in support of his argument that "the contract between Grand Bay and [the appellee] created a nondelegable duty upon which [he] could seek recovery from [the appellee]," the Third District set forth, "Mills does not stand for the proposition that liability for breach of contractual duties automatically forms the basis of recovery in tort by parties not related to the contract, and [the appellant] cannot recover from [the appellee] on that basis." Id. at 863. In affirming, the Third District explained that the "mere existence of a contract does not create vicarious liability as to third persons for the negligent acts of the independent contractor." Id.; see also Gordon v. Sanders, 692 So.2d 939, 941 (Fla. 3d DCA 1997) ("[W[here the contracting party makes it her or his duty to perform a task, that party cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.") (emphasis in original); Holiday Carpet Serv. v. Butler, 669 So.2d 302, 303 (Fla. 3d DCA 1996) (reversing for entry of judgment in favor of the appellant on the authority of Carrasquillo and noting that "[i]n that case, we held, as a matter of law, that this very appellant's installers were independent contractors for whose negligence during their assigned work it was not liable"). Cf. Lillibridge Health Care Servs., Inc. v. Hunton Brady Architects, P.A., No. 6:08-cv-1028-Orl-28KRS, 2010 WL 3788859, at *18 (M.D. Fla. 2010) (distinguishing Carrasquillo from the case before it because "that case obviously involved personal injury by a third party rather than a dispute regarding quality of services provided as between contracting parties" and finding Mills to be "more on point").
Adopting the Third District's reasoning in Carrasquillo, we hold that Appellee's contract with Winn-Dixie did not create a nondelegable duty on Appellee's part to Appellant, a non-party to the contract. As such, the trial court properly granted summary judgment as to this issue. While Appellant also argues that a nondelegable duty was created because the type of work for which she was employed entails a peculiar risk, that argument was not raised below and, thus, was not preserved for appeal. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (explaining that in order to be preserved for appeal, an issue must be presented to the lower court and the specific legal argument must be made below).
In her last issue, Appellant asserts that there is no indication in the record that the trial court reviewed Appellee's contract with Winn-Dixie before adopting Appellee's proposed order. Yet, in the trial court's email to the parties, it explained that it had reviewed Appellant's response to the summary judgment motion and considered argument of counsel. Both Appellant's response and her counsel's argument centered around Appellee's contract with Winn-Dixie. Indeed, her counsel characterized the contract as "the lynchpin" of the case. Therefore, this argument is meritless. Accordingly, we affirm the final summary judgment.
AFFIRMED.
Long, J., concurs; Rowe, C.J., concurs in result only.