Work that Creates Exceptional Risk and Causes Death in Florida

tractor-923855-m.jpgUsually a Florida landowner or an employer of an independent contractor is not liable for negligent acts of the independent contractor. There are exceptions, among them an exception for work that creates exceptional risks.

In a wrongful death case earlier this year, a large tractor was moving along the interstate in the fast lane at less than 30 miles per hour in the dark. A driver was one of several cars in a group driving close together in the fast lane. The fourth or fifth car of the group was a state trooper. The trooper observed that the first car hit the brakes and a pickup pushed the second or third car into the right lane.

This second or third car was a car operated by a man named Smyth. He crashed into a tank truck carrying fuel–the driver of the truck didn’t realize Smyth had hit him and traveled with the car. The fuel tank caught fire and Smyth died.


In front of the car that hit the brakes there was a giant mower tractor. The tractor operator had turned on the lights required for use, but was going only about 25 miles per hour in the fast lane in the dark. It was owned by Titan Law Service and operated by Titan’s owner.
Titan had been given a subcontract by ICA. The primary contract was a highway asset management contract between ICA and DOT that also involved bridge maintenance, maintenance of rest stops and other activities in addition to mowing. The ICA was required to use adequate and competent staff and allowed them to use subcontractors who were approved. However, ICA did not get consent from DOT to use Titan.

There were no photographs of the accident. No investigating officer was deposed. The only report in the record was a report created by a retired DOT safety manager. The report found that the contract mower was operating in violation of hours permitted by the contract and that the operator did not know he wasn’t permitted to mow at night.

A family member filed a wrongful death action through the Estate against the owner and driver of the pickup truck, as well as against Titan, Titan’s owner, ICA and DOT. The claim against Titan was discharged in bankruptcy and the case with respect to the driver of the pickup was resolved. The claims against DOT and ICA were that they negligently failed to supervise or instruct the mower operator in the safe operation of the mower and that they had a nondelegable duty to maintain the right-of-way in a reasonably safe manner for motorists.

The Estate unsuccessfully moved for summary judgment. DOT and ICA also moved for summary judgment, which was granted. Among other things, the trial court ruled that the duty to use reasonable care in the operation of a mower tractor is delegable and had been delegated.

The Estate appealed. On appeal, the issue was whether the duty was nondelegable. The appellate court found that the case was not ripe for summary judgment. DOT and ICA hadn’t presented sufficient evidence to win their motion.

The appellate court explained that an activity is inherently dangerous (and nondelegable) if danger inheres in the performance of the work such that injury is probable when precautions are not taken. It also explained that ICA appeared to have breached its contract by permitting Titan to perform the dangerous work. If ICA had followed the contractual terms, DOT would have gotten insurance to cover the subcontractor. ICA did not establish that it successfully delegated its responsibilities to Titan. The appellate court reversed the summary judgment.

If you’ve lost a loved one unexpectedly due to somebody else’s negligence, call the experienced wrongful death attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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Proving Wage Loss in Florida Personal Injury Cases, July 12, 2013

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