       Third District Court of Appeal
                                State of Florida

                           Opinion filed March 23, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-3007
                          Lower Tribunal No. 13-19279
                              ________________


      Caridad Blanco Fuentes, individually and as Personal
Representative of the Estate of Edelberto Escalera Perez, Deceased,
      for the Benefit of the Estate and Statutory survivors,
                                     Appellant,

                                         vs.

                   Sandel, Inc. and Rolling Shield, Inc.,
                                     Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,
Judge.

     Barbara Green, P.A., and Barbara Green; Rubenstein Law P.A., and
Anthony J. Soto, for appellant.


      Conroy Simberg, and Hinda Klein and Elizabeth A. Izquierdo (Hollywood),
for appellee Sandel, Inc.; Clarke Silverglate, P.A., and Karen H. Curtis and Mercer
K. Clarke, for appellee Rolling Shield, Inc.
Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

      ROTHENBERG, J.

      After Edelberto Escalera Perez (“Escalera”) fell to his death through a

warehouse skylight while painting the warehouse roof, his widow, Caridad Blanco

Fuentes (“Fuentes”), sued Rolling Shield, Inc. (“Rolling Shield”) and Sandel, Inc.

(“Sandel”), alleging that they were negligent by failing to keep the premises safe.

Fuentes now appeals the trial court’s entry of final summary judgment in favor of

Rolling Shield and Sandel, and appeals the trial court’s entry of an order granting

Rolling Shield’s motion to strike the affidavit of Fuentes’s witness, George W.

Zimmerman (“Zimmerman”). Because the undisputed facts demonstrate that

neither Rolling Shield nor Sandel owed a duty to Escalera, an employee of an

independent contractor hired to paint the warehouse roof, Fuentes’s negligence

claim fails as a matter of law. Based on this finding and our finding that the trial

court did not abuse its discretion by striking Zimmerman’s affidavit on the grounds

that the affidavit contained only legal conclusions, we affirm.

                                 BACKGROUND

      Rolling Shield is a hurricane shutters and awnings manufacturer which

leased a warehouse from Sandel. Jose Delgado (“Delgado”) was the president of

Rolling Shield and Sandel during and prior to 2012. In April 2012, Rolling Shield

hired Shade Technology, Inc. (“Shade”) to paint the warehouse roof. Aureliano



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Echevarria (“Echevarria”), the owner of Shade, was working as an installation

manager for Rolling Shield in 2012. Shade subcontracted the work to Edelesca

Services, Inc. (“Edelesca”), which was owned by Escalera. Escalera had been in

the warehouse dozens of times and knew that its roof had skylights that let in

ambient light. He also had experience working on high altitude jobs. Escalera’s

friend, Luis Perez (“Perez”), agreed to assist Escalera with the warehouse roof-

painting job.

      On the day of the accident, Delgado (the president of Sandel and Rolling

Shield) and Echevarria (the owner of Shade) met with Escalera and Perez for thirty

minutes before the men began to paint the roof. Delgado and Echevarria

specifically warned the men about the danger of the skylights, about the need to

stay fastened to the safety rope that was installed on the roof to protect them while

on the roof, and not to paint the skylights or step on the skylights. Delgado and

Echevarria further warned that if the men stepped on the skylights, they would fall

through the roof. Perez confirmed these admonitions were given.

      Escalera and Perez started to paint the roof at approximately 4:30 p.m., and

they continued to work until it started to get dark. Echevarria testified that he had

been on the roof with the workers almost the entire time they were painting, and

that he came down from the roof at the end of the day to get some water. When

Echevarria left the roof, both Escalera and Perez were in their safety harnesses and



                                         3
connected to the safety rope on the roof. Perez testified that he was talking to

Escalera as they were collecting their supplies for the night when he heard a noise

and realized that Escalera had fallen through a skylight on the roof and that

Escalera had not been connected to the safety rope when he fell. Escalera died in

the fall.

       Fuentes filed a complaint against Rolling Shield and Sandel, alleging that

both were responsible for Escalera’s death because they controlled, managed, and

maintained the warehouse premises, and because Sandel owned and Rolling Shield

leased the premises. The complaint alleged that Sandel and Rolling Shield were

negligent by failing to comply with the building code, maintain the skylight,

provide for a guard or screen around the skylight to prevent Escalera from stepping

on the skylight, and warn Escalera of the danger.

       Rolling Shield moved for summary judgment as to the negligence claim,

arguing that it could not be held liable because Escalera was an independent

contractor, and that, at most, Rolling Shield had a duty to warn—which was fully

discharged. Sandel also moved for summary judgment and joined in Rolling

Shield’s motion for summary judgment, adopting the arguments made by Rolling

Shield. In response, Fuentes argued that Rolling Shield had a duty to maintain the

premises in a safe condition, Rolling Shield exercised control over Escalera’s work

and actively participated in the work, and Escalera died as a result of a dangerous



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condition that was not related to the work he was hired to perform. Fuentes also

argued that the warnings given to Escalera did not insulate Rolling Shield from

liability, but instead created an issue of comparative negligence for the jury.

      Fuentes filed a sworn affidavit signed by Zimmerman, a registered architect

and licensed building inspector. Rolling Shield moved to strike the affidavit on the

grounds that the affidavit set forth legal conclusions and provided an opinion on

how to apply a legal standard. The trial court granted Rolling Shield’s motion to

strike after finding that the affidavit impermissibly attempted to instruct the trial

court on how to decide questions of law.

      The trial court also granted Rolling Shield’s motion for summary judgment,

finding that “the duty to invitees to maintain the premises in a reasonably safe

condition does not apply to contractors hired to perform dangerous work,” and that

the danger posed by the skylights was inherent in, or at least incidental to, the work

Escalera was hired to do. The trial court additionally found that whether Rolling

Shield had exercised control over the work was not a factual issue in dispute

because Fuentes failed to plead control or present evidence that there was

someone, acting on behalf of Rolling Shield, who was present or was directing the

work. Although Echevarria observed the work being performed, he did so as the

owner of Shade, the company that was hired to paint the roof. Lastly, the trial court

noted that it was undisputed that Escalera knew about the skylights and was



                                           5
warned not to step on them and to remain harnessed and tied to the safety line

when on the roof.

      Thereafter, the trial court also granted Sandel’s motion for summary

judgment. In its order granting Sandel’s motion for summary judgment, it

incorporated the findings from its ruling on Rolling Shield’s motion for summary

judgment and additionally found that there was no evidence that Sandel supervised

the work or was negligent. The trial court entered final judgments with respect to

both orders granting summary judgment, and Fuentes filed the instant appeal.

                                   ANALYSIS

      A trial court’s entry of final summary judgment is reviewed de novo.

Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 864 (Fla. 3d DCA 2011).

“Summary judgment is proper if there is no genuine issue of material fact and if

the moving party is entitled to a judgment as a matter of law.” Volusia Cty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “In negligence

actions, the question of the duty owed to a plaintiff is always one of law and never

one for the jury,” and the trial court may grant summary judgment “where a

defendant establishes as a matter of law, that no duty is owed to the plaintiff.”

Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA

2011).

A. Independent Contractors



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      As a general rule, “a property owner who employs an independent

contractor to perform work on his property will not be held liable for injuries

sustained by the employee of an independent contractor during the performance of

that work.” Strickland, 66 So. 3d at 1006. There are two exceptions to this rule.

First, a property owner may be held liable for an independent contractor’s

employee’s injuries if the owner actively participated in the work or exercised

direct control over the work, and failed to exercise that control with reasonable

care. Id.; Armenteros v. Baptist Hosp. of Miami, Inc., 714 So. 2d 518, 521 (Fla. 3d

DCA 1998). The second exception applies where the property owner fails to warn

the contractor about concealed dangers not inherent in the work of which the

owner had actual or constructive knowledge and which were unknown to the

contractor or could not have been discovered through due care. Id.

      (1) The direct control exception

      This exception requires more than the “general right” to control when the

work begins or ends, to inspect the work, to make suggestions about how the work

should be performed, or to require deviations in the course of the work.

Armenteros, 714 So. 2d at 522. As the Fourth District Court of Appeal recognized

in Morales v. Weil, 44 So. 3d 173, 176 (Fla. 4th DCA 2010), “[a]n owner may

retain various controls over the independent contractor’s work without usurping




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the shield of liability. Indeed, the amount of control needed to pierce the shield of

liability must be extensive.”

       The employer must actually exercise control over the manner in which the

independent contractor’s work was performed. Sterling & Mgmt., Inc. v. Gitenis,

117 So. 3d 790, 794 (Fla. 4th DCA 2013). And “[m]erely exercising a general right

to recommend a safe manner for the independent contractor’s employees to

perform their work is insufficient to subject a party to liability.” Id. (internal

quotation marks and citations omitted).

      In addition to requiring the exercise of sufficient control over the manner in

which the work was performed, the plaintiff must allege and offer proof that the

defendant was negligent in the exercise of that control.

      One who entrusts work to an independent contractor, but who retains
      the control of any part of the work, is subject to liability for physical
      harm to others for whose safety the employer owes a duty to exercise
      reasonable care which is caused by his failure to exercise his control
      with reasonable care.

Armenteros, 714 So. 2d at 521 (quoting Restatement (Second) of Torts § 414).

See also Conklin v. Cohen, 287 So. 2d 56, 60 (Fla. 1973) (holding that to impose

liability on the owner based on his control “one or more specific identifiable acts

of negligence, . . . resulting in the injury or death to an employee, must be

established”).




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      Fuentes did not allege in her complaint that either Rolling Shield or Sandel

controlled or directly influenced the manner in which the work was performed, and

Fuentes never pled how either defendant was negligent in the exercise of such

control. See Mather v. Northcutt, 598 So. 2d 101, 102 (Fla. 2d DCA 1992) (“To

state a cause of action in negligence, a complaint must allege ultimate facts which

establish a relationship between the parties giving rise to a legal duty in the

defendant to protect the plaintiff from the injury of which he now complains.”).

The failure to allege how the control was exercised and specifically how the duty

of reasonable care created by the alleged control was breached precludes Fuentes

from relying on the control exception.1

      Although the control exception was not properly pled, even if it had been,

summary judgment was properly granted because the undisputed record evidence

does not support the level of control necessary to invoke the control exception. At

most, the undisputed evidence shows that Delgado and Echevarria supplied

painting materials and safety equipment to Escalera and Perez and fully explained

to Escalera and Perez that if they stepped on any of the skylights they would fall

through the skylight, and Echevarria remained on sight to observe the work as it

was being performed. This evidence was insufficient to establish that either


1 The trial court correctly notes that the control exception does not create strict
liability for any injury to a contractor’s employee. The plaintiff must sufficiently
allege that the owner was somehow negligent in exercising that control.

                                          9
defendant controlled “the methods of work and operative details.” Armenteros, 714

So. 2d at 523; see also Strickland, 66 So. 3d at 1006-07 (stating that neither the

fact that the owners provided the safety harnesses to the independent contractor’s

employees nor the “mere inspection by a property owner of an independent

contractor’s work” is sufficient to prove that the owner controlled the work or

actively participated in it); St. Lucie Harvesting & Caretaking Corp. v. Cervantes,

639 So. 2d 37, 39-40 (Fla. 4th DCA 1994) (holding that directing the independent

contractor to harvest a specific amount of fruit from a specific grove was

insufficient to prove that the owner exercised the necessary degree of control to

satisfy the control exception).

      (2) The duty to warn exception

      The second exception allows an employee of an independent contractor to

hold a property owner liable if the owner fails to warn the contractor about

concealed dangers not inherent in the work of which the owner had actual or

constructive knowledge and which were unknown to the contractor or could not

have been discovered through due care. Strickland, 66 So. 3d at 1006. However,

“where the danger is open and apparent or readily ascertainable, the property

owner is under no duty to warn and will not be held liable for injuries sustained by

the employee of an independent contractor in performing work under the contract.”

Id. (citing Roberts v. Dacra Design Assocs., Ltd., 766 So. 2d 1184, 1185 (Fla. 3d



                                        10
DCA 2000)) (holding that a property owner was not liable when a repairman fell

on a piece of pipe lying on the ground because the repairman could have

discovered the dangers of construction materials lying on the ground with the

exercise of due care); Morales, 44 So. 3d at 178-79.

      The undisputed evidence in the instant case is that the danger posed by the

skylights was open and apparent and Escalera actually knew about the danger that

they posed. Escalera had visited the warehouse on numerous occasions and was

aware of the skylights. When on the roof, the skylights were easily identifiable.

The evidence established that they were placed in a pattern on the roof, a different

color and material than the roof, and marked with a black border. Delgado, Perez,

and Echevarria all testified that there was a distinct difference between the

skylights and the roof. Regarding the danger these skylights posed to Escalera,

Escalera was specifically warned and the defendants provided the safety equipment

to protect Escalera while working on the roof and near the skylights. Both Delgado

and Eschevarria warned Escalera several times in their thirty-minute discussion

with Escalera and Perez before they began working on the roof not to step on the

skylights, the skylights would not withstand his weight and he would fall through

them, and he must stay harnessed and tethered to the safety rope while on the roof.

      We therefore find that summary judgment was properly granted in this case.

Fuentes failed to plead or prove the requisite control or any negligence by the



                                        11
defendants to pierce the shield of liability under the first exception or that the

defendants failed to warn Escalera about a concealed danger not inherent in the

work and which was unknown to Escalera under the second exception. Thus, the

general rule that property owners owe no duty to employees of independent

contractors who are injured during the course of the work the contractors were

hired to perform applies, and Fuentes’s negligence claim fails as a matter of law.

B. The Zimmerman Affidavit

      We next turn to the issue of whether the trial court properly excluded

Zimmerman’s affidavit discussing Rolling Shield’s alleged liability under the

South Florida Building Code (“the Code”). We review the trial court’s evidentiary

rulings for an abuse of discretion. Johnson v. State, 969 So. 2d 938, 949 (Fla.

2007). “[D]iscretion is abused only where no reasonable man would take the view

adopted by the trial court.” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.

1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

      We find that the trial court did not abuse its discretion when it struck

Zimmerman’s affidavit because it was permeated by improper legal conclusions.

See Kayfetz v. A.M. Best Roofing, Inc., 832 So. 2d 784, 786 (Fla. 3d DCA 2002)

(reversing a final judgment where a trial court allowed an expert to testify as to his

opinions regarding the “Plaintiffs responsibilities under [the Code], essentially

instructing the jury on the issue of legal liability in this case”). As stated earlier,



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whether a defendant owes a duty to a plaintiff is always a question of law. Volusia

Cty., 760 So. 2d at 130. Nevertheless, paragraphs 6 and 7 of Zimmerman’s

affidavit, the only substantive sections in the affidavit, contain a discussion of the

purpose behind the Code, and the legal conclusions that “Rolling Shield, the

tenant, had an equitable interest in the premises and had a duty to ensure the

safety of the premises, and it’s [sic] compliance with Code mandated structural

standards.” (emphasis added). Zimmerman’s affidavit went on to interpret the

scope of Rolling Shield’s duty and concluded that Rolling Shield breached its legal

duty when it “failed to ensure the structural loading capability of the plastic roof

panels, as required by the [Code].”

                                  CONCLUSION

      We affirm the trial court’s entry of final summary judgment as to both

Rolling Shield and Sandel because Fuentes could not, as a matter of law, prevail

against either defendant where neither party owed a duty of care under the

undisputed facts, and it is undisputed that Rolling Shield and Sandel warned

Escalera not to step on the skylights because he would fall through the roof,

specifically provided a harness and safety rope to protect Escalera from any

potential fall, and instructed Escalera to wear his harness and stay fastened to the

safety rope when on the roof. We also affirm the trial court’s reasonable decision

to strike Zimmerman’s affidavit on the grounds that it was pure legal conclusion.



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Affirmed.




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