Dealing with Wrongful Death Issues in Slip and Fall Claims

Seary Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida are frequently underestimated because the term “slip and fall” sounds relatively minor. Our minds tend to create images of slipping, falling onto our floor, and standing back up, albeit a bit more slowly, with a few curse words and maybe a bruise for our clumsiness.

And, quite frequently, this, or something similar to this, is what actually happens. Occasionally, however, a slip and fall accident is anything but minor. These types of accidents can be severe, costly, and expensive, with injuries that are complicated and painful, often requiring extended medical care.

About Slip and Fall Accidents and Premises Liability

When slip and fall accidents occur on someone else’s property and are caused by some type of unsafe condition, you may be able to hold the property owner liable for your injuries under a premises liability claim. Particularly tragic are slip and fall accidents that result in the death of a loved one. If you’re experiencing this type of heartbreaking devastation, you’re usually buried in the necessary legwork of putting your loved one to rest and grieving. Financial compensation may be the last thing on your mind.

However, the financial compensation you’re entitled to will become very important as you begin to deal with the loss of income, medical bills, and other types of expenses. A Florida wrongful death attorney at Searcy Denney understands the suffering you’re experiencing and can handle your insurance and legal claims for you, allowing you to deal with your other tragic responsibilities.

About Wrongful Death Claims

A wrongful death claim is a claim resulting from another person’s negligence or direct act, in this case, by unsafe conditions on another’s property, which causes the death of a family member. In Florida, wrongful death claims are governed by the “Florida Wrongful Death Act,” Florida Statutes Sections 768.16-768.26. The Act, in Section 768.19, states that surviving members of the family may file a lawsuit if the loss is due to:

  • A wrongful act
  • Negligence
  • Default
  • Breach or of contract or warranty

There’s also a statute of limitations regarding wrongful death claims, which is two years from the time of death. Under certain circumstances, the attorney or personal representative for the family may be granted an extension for the claim.

Who Can Recover for Wrongful Death?

Under Florida law, a personal representative for the deceased person can bring a wrongful death claim on behalf of the deceased person’s survivors. “Survivors” include “the [deceased person’s] spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.”

In addition, certain specific survivors can recover other specified damages. A Florida wrongful death attorney can help with these.

Expansion of Premises Liability for Construction Owners

Marcus Miller and Ryan T. Kinder | Bradley Arant Boult Cummings

A property owner is generally liable for hazards on the property that injure others. On construction projects, this presents a significant risk for owners because there are always multiple hazards present, and the owner, generally, has very little control or knowledge of all the work being performed. Chapter 95 of the Texas Civil Practice and Remedies Code alleviates some of this risk by limiting a commercial property owner’s liability for personal injury claims by contractors and subcontractors under specific circumstances. The Texas Supreme Court’s recent decision in Los Compadres Pescadores, L.L.C. v. Juan G. Valdez and Alfredo Teran expands the applicability of Chapter 95 for the benefit of owners.

Chapter 95 requires an injured contractor or subcontractor to prove the owner had control over the work and actual knowledge of the hazardous condition causing the injury. This is a greater burden than under Texas common law, which imposes liability on a property owner who “reasonably should have known” of a condition or danger. However, Chapter 95 is limited in scope and only applies to claims that “arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.”

The purpose of Chapter 95 is to shift risk back to the contractor for hazards that would normally be encountered during its work unless the owner exercises control and has knowledge of the hazard. However, Texas courts have grappled with determining the scope of Chapter 95 over the years. The Texas Supreme Court previously held the contractor’s injury must result “from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs.” Courts then had difficulty determining the breadth of the term “improvement.” One court held Chapter 95 did not apply to a repairman who was injured when he fell through a roof while working on an air conditioner unit because the roof was not part of the air conditioner (i.e., the “improvement”) on which the repairman was hired to work. In another case, Chapter 95 applied to a contractor hired to repair a furnace in a petrochemical plant even though he was injured when a valve burst in a different furnace nearby. Even though there were separate furnaces, the court stated that they were all connected as part of a single process system within the plant and, as such, were part of the same improvement.

In Los Compadres Pescadores, the Texas Supreme Court provided further clarification to Chapter 95’s application. In that case, the owner was building a condominium in South Padre Island. The owner hired a contractor to construct the pilings for the foundation. The pilings were drilled and pumped full of concrete using a crane. The contractor would then insert 20′ pieces of rebar into the pilings. The contractor notified the owner that there was a high-voltage powerline running about 20′ above the property line. The owner told the contractor that the line could not be de-energized or moved and instructed the contractor to finish the work. While working on a piling about 10′ from the powerline, the plaintiffs were electrocuted when the rebar they were installing touched the powerline.

The court first sought to define the “improvement” in this situation. The court rejected the owner’s argument that the entire condominium project was the improvement because “a workplace may include several different improvements, and each improvement may possess numerous conditions.” While the pilings were part of the foundation, which was in turn part of the condominium building, the court held that the “improvement” in this case should be defined narrowly to just the pilings, since that is all the contractor was hired to perform.

Under prior decisions, since the powerline was not part of the pilings (i.e., the “improvement”) Chapter 95 should not have been applicable. But the court expanded the scope of Chapter 95 in this case by focusing on whether the powerline could be a “condition… of an improvement.” If the dangerous condition “creates a probability of harm” due to its proximity to the improvement, then it is a “condition of the improvement” for purposes of Chapter 95. The court noted that if the building were on a large tract and the powerline were hundreds of yards away, then it wouldn’t be a “condition” of the pilings. Since it was nearby, its proximity made it a condition of the work being done such that Chapter 95 would apply.

The decision in Los Compadres Pescadores provides some clarification and gives courts the flexibility to apply Chapter 95 as it was intended. It certainly broadens the current scope of Chapter 95 to limit an owner’s liability for hazards that are likely to be encountered by the contractor. Even so, owners in Texas must still be aware that they could face liability despite the limitation in Chapter 95 if they exert control over the work being performed.

Expansion of Premises Liability for Construction Owners

Ryan T. Kinder and Marcus Miller | Buildsmart

A property owner is generally liable for hazards on the property that injure others. On construction projects, this presents a significant risk for owners because there are always multiple hazards present, and the owner, generally, has very little control or knowledge of all the work being performed. Chapter 95 of the Texas Civil Practice and Remedies Code alleviates some of this risk by limiting a commercial property owner’s liability for personal injury claims by contractors and subcontractors under specific circumstances. The Texas Supreme Court’s recent decision in Los Compadres Pescadores, L.L.C. v. Juan G. Valdez and Alfredo Teran expands the applicability of Chapter 95 for the benefit of owners.

Chapter 95 requires an injured contractor or subcontractor to prove the owner had control over the work and actual knowledge of the hazardous condition causing the injury. This is a greater burden than under Texas common law, which imposes liability on a property owner who “reasonably should have known” of a condition or danger. However, Chapter 95 is limited in scope and only applies to claims that “arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.”

The purpose of Chapter 95 is to shift risk back to the contractor for hazards that would normally be encountered during its work unless the owner exercises control and has knowledge of the hazard. However, Texas courts have grappled with determining the scope of Chapter 95 over the years. The Texas Supreme Court previously held the contractor’s injury must result “from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs.” Courts then had difficulty determining the breadth of the term “improvement.” One court held Chapter 95 did not apply to a repairman who was injured when he fell through a roof while working on an air conditioner unit because the roof was not part of the air conditioner (i.e., the “improvement”) on which the repairman was hired to work. In another case, Chapter 95 applied to a contractor hired to repair a furnace in a petrochemical plant even though he was injured when a valve burst in a different furnace nearby. Even though there were separate furnaces, the court stated that they were all connected as part of a single process system within the plant and, as such, were part of the same improvement.

In Los Compadres Pescadores, the Texas Supreme Court provided further clarification to Chapter 95’s application. In that case, the owner was building a condominium in South Padre Island. The owner hired a contractor to construct the pilings for the foundation. The pilings were drilled and pumped full of concrete using a crane. The contractor would then insert 20’ pieces of rebar into the pilings. The contractor notified the owner that there was a high-voltage powerline running about 20’ above the property line. The owner told the contractor that the line could not be de-energized or moved and instructed the contractor to finish the work. While working on a piling about 10’ from the powerline, the plaintiffs were electrocuted when the rebar they were installing touched the powerline.

The court first sought to define the “improvement” in this situation. The court rejected the owner’s argument that the entire condominium project was the improvement because “a workplace may include several different improvements, and each improvement may possess numerous conditions.” While the pilings were part of the foundation, which was in turn part of the condominium building, the court held that the “improvement” in this case should be defined narrowly to just the pilings, since that is all the contractor was hired to perform.

Under prior decisions, since the powerline was not part of the pilings (i.e., the “improvement”) Chapter 95 should not have been applicable. But the court expanded the scope of Chapter 95 in this case by focusing on whether the powerline could be a “condition… of an improvement.” If the dangerous condition “creates a probability of harm” due to its proximity to the improvement, then it is a “condition of the improvement” for purposes of Chapter 95. The court noted that if the building were on a large tract and the powerline were hundreds of yards away, then it wouldn’t be a “condition” of the pilings. Since it was nearby, its proximity made it a condition of the work being done such that Chapter 95 would apply.

The decision in Los Compadres Pescadores provides some clarification and gives courts the flexibility to apply Chapter 95 as it was intended. It certainly broadens the current scope of Chapter 95 to limit an owner’s liability for hazards that are likely to be encountered by the contractor. Even so, owners in Texas must still be aware that they could face liability despite the limitation in Chapter 95 if they exert control over the work being performed.

Premises Liability

Elizabeth I. Stewart | Low, Ball & Lynch | October 2016

Victor M. Regalado v. Jeffrey M. Callaghan

Court of Appeal, Fourth Appellate District (September 22, 2016)

Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work, but are instead limited to workers’ compensation as their sole remedy. An exception is when the hiring party retains control of workplace safety and “affirmatively contributes to the employee’s injuries.” See Hooker v. Department of Transportation (2002) 27 Cal.4th 198. This case considered whether the hiring party’s failure to act was sufficient “affirmative contribution” for the imposition of liability.

Jeffrey Callaghan (“Callaghan”), a licensed concrete subcontractor, acted as an owner-builder for a home he built in the Coachella Valley. Callaghan hired licensed subcontractors to complete the work but was responsible himself for obtaining all permits and keeping track of the progress daily. Callaghan purchased a pre-engineered underground vault where the pool equipment would be located and connected to a propane line. Callaghan obtained permits for the pool and the site plan submitted depicted the underground vault. Callaghan did not obtain separate permits for the vault and propane line and did not have the County inspect the vault. The vault was installed by Callaghan with the help of another contractor, and he hired someone else to run a propane line to the back yard.

Callaghan hired Dunn’s Designer Pools (“Dunn’s”) to build the pool and spa. Dunn’s designed the layout of the equipment in the vault including where the propane line would enter the vault. Dunn’s employee, Victor Regalado (“Regalado”), installed the pool equipment in the vault. Neither Regalado nor his supervisor read the instruction manuals for the spa heater or the propane conversion kit which warned of a risk of explosion if a propane heater is installed in a pit or low spot where propane gas can collect. After the work was completed, Regalado turned on the propane line, the filter pump, and the heater in preparation for the County’s inspection. An explosion occurred while Regalado was exiting the vault. Regalado was severely burned, injured his back and suffered other substantial injuries.

Regalado sued Callaghan for negligence and premises liability, arguing that Callaghan was liable because he retained control over the project by submitting plans, pulling permits and calling for inspections, furnishing the vault and propane line, asking Dunn’s to install the pool equipment in the vault, and for his failure to obtain separate permits for the vault and propane line.

At trial, all parties had agreed to use the approved jury instruction CACI 1009B, which required a showing that (1) Callaghan owned the property; (2) he retained control over safety conditions; (3) he negligently exercised control over safety conditions; (4) plaintiff was harmed; and (5) Callaghan’s negligent exercise of control was a substantial factor in causing plaintiff’s harm. Callaghan agreed that this was the law, but had argued unsuccessfully that there should be additional instructions given to show that he “affirmatively contributed” to Regalado’s injury. Callaghan sought to amplify CACI 1009B with a special instruction that an owner-builder can only be held liable if they “affirmatively contributed” to the injuries by “direction, induced reliance, or other affirmative conduct.” He had also sought to instruct the jury that “passively permitting an unsafe condition to occur rather than directing it to occur” did not constitute “affirmative contribution.”

The jury found Callaghan was 40 % at fault, compared to 5% for Regalado and 55% for Dunn’s, and judgment was entered against Callaghan in the amount of approximately $3 million. Callaghan appealed.

The Appellate Court upheld the trial court’s ruling and found that CACI 1009B adequately instructed on the applicable law set forth in Hooker, and properly refused Callaghan’s requested special instructions. The Appellate Court found that while drawn directly from case law, Callaghan’s proposed special instructions were misleading in that they suggested that in order for the hirer to “affirmatively contribute” to the plaintiff’s injuries, the hirer must have engaged in some form of active direction or conduct. The Appellate Court found that the instructions had the potential of misleading the jury and did not provide a clear statement of the law. Furthermore, the use notes for CACI 1009B showed that “affirmative contribution” may be found by omission or failure to act.

Here, there was testimony at trial that the vault and propane line installations required a permit, and the reason for the permit was to ensure that the work was done safely. Callaghan was responsible for obtaining permits and calling for inspections, so he clearly retained control over safety conditions. There was testimony that if Callaghan had gone through the appropriate permitting and inspection process, he would not have had a design that included an underground vault with propane piped into it without a proper ventilation system. Based on this evidence, a reasonable trier of fact could conclude that Callaghan negligently exercised his retained control over safety conditions in a manner that affirmatively contributed to Regalado’s injuries.

On a side note, the Appellate Court also upheld the trial court’s finding that payments made to Regalado by his employer were intended to be gifts as his employer was not obligated to make the payments and they were properly excluded from evidence under the collateral source rule.

COMMENT

This case clarified the Hooker exception to the Exclusive Remedy defense regarding “affirmative contribution” to the plaintiff’s injuries. A hirer of an independent contractor, if it retains control of safety for the project, will be found responsible not only for its negligent actions, but for its negligent omissions as well.

For a copy of the complete decision, see: Victor M. Regalado v. Jeffrey M. Callaghan