Opinion
Case No. 4D01-671.
Opinion filed January 2, 2002.
Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patricia W. Cocalis, Judge; L.T. Case No. 99-19735 (04).
Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, J. William Webb and Michael P. Rudd of Hightower Rudd, P.A., Miami, for appellant.
Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, Jeffrey M. Fenster and Stacie L. Cohen of Fenster and Faerber, P.A., Plantation, for appellee.
Nury M. Suarez appeals from a jury verdict finding her 55% negligent for injuries to the plaintiff, Jose Gonzalez, a tenant living in Suarez's garage apartment, and awarding Gonzalez $2,728,559.90 in compensatory damages. Gonzalez sustained a spinal cord injury, resulting in partial paralysis of his arms and legs, when a kitchen cabinet fell from the wall and struck Gonzalez on the head. Suarez did not know the name of the contractor who installed the cabinets. A relative had hired him off the street and Suarez paid him in cash.
We affirm all issues on the appeal and the cross-appeal and write to address two matters.
First, Suarez argues that because the kitchen cabinet was installed by an independent contractor, she cannot be held liable for Gonzalez's injuries as a matter of law.
Generally, the employer of an independent contractor is not liable for the negligence of the independent contractor because the employer has no control over the manner in which the work is done. 2A Fla. Jur.2dAgency Employment § 138 (1998); see St. John's Halifax R.R. Co. v. Shalley, 14 So. 890, 892 (Fla. 1894); Singer v. Star, 510 So.2d 637, 639-40 (Fla. 4th DCA 1987). However, "the general rule is riddled with exceptions." City of Coral Gables v. Prats, 502 So.2d 969, 971 (Fla. 3d DCA 1987).
One such exception to the general rule is where the employer is negligent "in selecting, instructing, or supervising the contractor."McCall v. Alabama Bruno's, Inc., 647 So.2d 175, 177 (Fla. 1st DCA 1994);see Restatement (Second) Of Torts § 409 (1965); W. Page Keeton Et Al., Prosser And Keeton On The Law Of Torts § 71 at 510 (5th ed. 1984). A theory of liability that Gonzalez successfully argued in the trial court was that Suarez negligently selected the anonymous "phantom" contractor who installed the cabinets. There was evidence at trial to support this theory. We adopt the rule set forth in McCall and the Restatement (Second) of Torts that where there is a foreseeable risk of harm to others, it is the duty of an employer of an independent contractor "to exercise reasonable care to employ only contractors competent to do the work with reasonable assurance of safety to others." Restatement (Second) of Torts Ch. 15, Topic 1, Introductory Note (1965).
Secondly, Suarez contends that the trial court erred in excluding the anonymous independent contractor from the verdict form as a nonparty so that the jury could assess comparative fault pursuant to section 768.81, Florida Statutes (2000), and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). However, section 768.81 and Fabre apply to incidents involving joint tortfeasors. See Beverly Enterprises- Florida, Inc. v. McVey, 739 So.2d 646, 650 (Fla. 2d DCA 1999); J.R. Brooks Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998). Here, because Suarez negligently hired the "phantom" contractor, she is vicariously liable for his negligence. This is not a situation where there were joint tortfeasors, so the comparative fault statute and Fabre do not apply.
Even assuming that Fabre did apply to the other theory of negligence raised at trial, the two issue rule would preclude reversal, since both theories were presented to the jury in a general verdict form and there was no error in the way the case was presented to the jury on negligent hiring. See Zimmer, Inc. v. Birnbaum, 758 So.2d 714, 715 (Fla. 4th DCA 2000).
AFFIRMED.
STONE and HAZOURI, JJ., concur.