871 So.2d 906, 29 Fla. L. Weekly
D511
District Court of Appeal of Florida,
Fifth District.
FORELINE SECURITY CORPORATION, Appellant,
v.
Marishia SCOTT, Appellee.
No. 5D02-1210.
Feb. 27, 2004.
Rehearing Denied May 10, 2004.
Background: Bank teller who was injured during bank robbery brought
negligence action against installer of security system. The Circuit Court,
Lake County, John W. Booth, S.J., entered judgment on jury verdict for
teller and held installer liable for the full amount of damages. Installer
appealed.
Holdings: The District Court of Appeal, Peterson, J., held that:
(1) installer was entitled to a jury instruction that a contractor was not
liable for injuries to third parties after the owner accepted the work
unless the defect at issue was latent and could not have been discovered by
the owner or unless the contractor was dealing with inherently dangerous
elements, and
(2) trial court could not hold security system installer liable for full
amount of damages.
Reversed and remanded.
West Headnotes
[1] KeyCite Notes
272 Negligence
272XVII Premises Liability
272XVII(G) Liabilities Relating to Construction, Demolition and Repair
272k1205 Liabilities of Particular Persons Other Than Owners
272k1205(6) Contractors
272k1205(8) k. Accepted Work Doctrine. Most Cited Cases
Under the "Slavin doctrine," also known as the "completed and accepted
rule," a contractor is not liable for injuries to third parties after the
owner has accepted the work unless the defect at issue was latent and could
not have been discovered by the owner or unless the contractor was dealing
with inherently dangerous elements.
[2] KeyCite Notes
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1067 k. Failure or Refusal to Charge. Most Cited Cases
388 Trial KeyCite Notes
388VII Instructions to Jury
388VII(D) Applicability to Pleadings and Evidence
388k249 Application of Instructions to Case
388k252 Facts and Evidence
388k252(1) k. In General. Most Cited Cases
388 Trial KeyCite Notes
388VII Instructions to Jury
388VII(E) Requests or Prayers
388k263 k. Presentation and Allowance in General. Most Cited Cases
A trial court commits reversible error when it refuses to give a requested
jury instruction which accurately states the law, if: a) there is evidence
supporting the instruction; and b) the instruction was necessary to allow
the jury to properly resolve all issues in the case.
[3] KeyCite Notes
388 Trial
388VII Instructions to Jury
388VII(B) Necessity and Subject-Matter
388k203 Issues and Theories of Case in General
388k203(1) k. In General. Most Cited Cases
Litigants have a right to have the court instruct the jury on the law
applicable to the evidence under the issues presented.
[4] KeyCite Notes
372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases
Security system installer was entitled to a jury instruction in negligence
action brought by bank teller on the completed and accepted rule, also known
as the Slavin doctrine, that a contractor was not liable for injuries to
third parties after the owner accepted the work unless the defect at issue
was latent and could not have been discovered by the owner or unless the
contractor was dealing with inherently dangerous elements; installer
presented evidence that bank had accepted the security system as designed
and installed, and that any defects in the system were patent and were known
or should have been known by bank.
[5] KeyCite Notes
184 Fraud
184II Actions
184II(D) Evidence
184k58 Weight and Sufficiency
184k58(4) k. Reliance on Representations and Inducement to Act. Most
Cited Cases
There was insufficient evidence to support fraudulent and negligent
misrepresentation claims by bank teller, who was injured during bank
robbery, that security system installer represented that its system was UL
listed or approved; there was no evidence in the record that installer
communicated any misrepresentation of fact to teller or that teller relied
on any misrepresentation of fact.
[6] KeyCite Notes
115 Damages
115X Proceedings for Assessment
115k219 Verdict and Findings
115k221 Special Interrogatories and Findings by Jury
115k221(8) k. Construction and Operation. Most Cited Cases
Trial court could not ignore allocation of fault determined by the jury and
rule that bank teller was entitled to judgment against security system
installer for 100% of the award of damages, after court told the jury that
the jury's allocation of fault would be considered, and jury allocated
fifty-percent of fault to bank; installer pursued a comparative negligence
theory of liability, and jury may have reached a different verdict on
damages had it known that installer would bear the entire amount.
Sylvia H. Walbolt and Robert E. Biasotti of Carlton Fields, P.A., St.
Petersburg, for Appellant.
Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Crews & Bodiford, P.A.,
Orlando, for Appellee.
PETERSON, J.
Foreline Security Corporation ("Foreline") appeals a final judgment in favor
of Marishia Scott ("Scott"). Foreline contends that the trial court: erred
by refusing to instruct the jury under the Slavin doctrine derived from
Slavin v. Kay, 108 So.2d 462 (Fla.1959); erred in refusing to enter a
directed verdict in favor of Foreline for fraudulent and negligent
misrepresentation; and erred in holding Foreline liable for the full amount
of damages. We agree.
Foreline installed a bank security system at the Mount Dora branch of the
United Southern Bank ("USB") in 1993. The installation during the
construction of the branch facility included system wiring, panic buttons
that triggered a silent alarm, cash drawers equipped with wireless "bait
money clips" that would also trigger a silent alarm and placement of a
security camera, monitor and VCR. Foreline's original design required
placement of the monitor and VCR in a location out of sight of the public,
but both were placed in a manager's glassed-in office in full view of the
public after a USB officer instructed Foreline to place the monitor in that
office. After the installation, USB operated the system without mishap until
the tragic events of March 20, 1999.
On that date, Fred Anderson, a parolee who had visited USB on previous days
while posing as a college student doing research on a career in banking and
who knew the head teller from church, entered the branch facility shortly
after 10:00 a.m. Anderson brought with him orange juice and doughnuts for
the two female tellers on duty, Scott and Heather Young. Inexplicably, USB
had no other employees or security officer on duty that morning. Anderson
visited with the tellers until the bank was empty of customers, left briefly
to retrieve a gun from his car and returned. He then pointed the gun at
Scott, fired a shot and said "[D]o not set off any alarms, go straight to
the vault." Once in the vault, he asked the two tellers "who wants to die
first?" Then Anderson shot and killed Heather Young and then shot Scott in
the neck, rendering her a quadriplegic. Anderson was caught as he exited the
bank and was later tried and convicted for the murder of Heather Young.
Scott sued Foreline adopting several theories of liability: 1) Foreline
negligently installed the security video monitor and VCR at the bank in an
area accessible to a potential bank robber, causing the robber to select
that particular bank to rob; 2) Foreline failed to provide panic buttons at
the bank's teller station and in the bank's vault; and 3) Foreline
fraudulently and negligently represented to USB that the security system was
a "UL listed burglary and holdup alarm system." [FN1] Foreline denied
liability and asserted various affirmative defenses including the Slavin
doctrine. At trial, Scott's security alarm expert opined that readily
accessible panic alarm devices should have been installed at the teller
stations, at the drawer containing the keys to the day gate, in the locking
mechanism for the day gate and in the bank vault itself. In addition, the
expert testified that Foreline had not installed a "UL listed hold-up and
alarm system." In sum, the alarm expert testified that the system Foreline
installed fell short of industry standards for such a system.
FN1. Scott alleged seven causes of action: strict liability; negligence;
breach of implied warranty of fitness; breach of an implied warranty of
merchantability; breach of contract; intentional misrepresentation; and
negligent misrepresentation.
The jury returned a verdict in favor of Scott on all of her claims except
the breach of contract claim. In addition to finding negligence on the part
of Foreline, the jury found USB was also negligent and apportioned fifty
percent fault to USB and fifty percent fault to Foreline. After the damages
phase of the bifurcated trial, the jury awarded Scott $26,917,000 in total
damages, including $11,917,000 in economic damages and $15,000,000 in
non-economic damages. The trial court entered judgment against Foreline for
the full amount of the verdict ($26,917,000) ruling that allocation of
damages for comparative negligence pursuant to section 768.81, Florida
Statutes, did not apply.
I. THE SLAVIN DOCTRINE
Foreline contends that it was entitled to an instruction based on Slavin
because it contracted with USB to provide and install a security and video
surveillance system and USB accepted the system as installed, and operated
it for six years before Anderson's robbery.
[1] Florida follows the Slavin rule, also known as the "completed and
accepted rule," [FN2] although a majority of states have adopted the "modern
rule." [FN3] In Slavin, the plaintiff sued a motel owner and a plumbing
contractor for negligence when a wash basin installed by the contractor on a
wall in the owner's motel room fell from the wall and injured the plaintiff.
Slavin, 108 So.2d at 463. The trial court directed a verdict in favor of the
hotel owner because the defect was not discoverable by ordinary inspection.
The trial court also directed a verdict in favor of the contractor because
of a lack of privity between the contractor and the plaintiff. The Florida
Supreme Court affirmed both judgments but on rehearing, reversed the
contractor's judgment, discarded the privity requirement and announced the
doctrine now known as the Slavin doctrine: a contractor is not liable for
injuries to third parties after the owner has accepted the work unless the
defect at issue was latent and could not have been discovered by the owner
or unless the contractor was dealing with inherently dangerous elements. Id.
at 466-67.
FN2. "The 'completed and accepted' rule applies so as to free the contractor
from liability where the contractor did not owe a duty of care to a third
person, the contractor did not breach a duty of care to a third person, and
the contractor is not negligent or the contractor's negligence, if any, is a
remote cause of the injury and the negligence of the owner or another person
is the proximate cause of the injury." 74 A.L.R. 544-45 (1999).
FN3. "The 'modern rule' or the 'forseeability doctrine' provides that a
building or construction contractor is liable for injury or damage to a
third person as a result of the condition of the work, even after completion
of the work and acceptance by the owner where it was reasonably foreseeable
that a third person would be injured by such work due to the contractor's
negligence or failure to disclose a dangerous condition known to such
contractor." 74 A.L.R. 5th, § 2[a] 543-44 (1999).
The Slavin doctrine extinguishes the liability of a contractor for a defect
by shifting the duty of care originally owed to others by the contractor to
the accepting owner as long as any defects are patent. [FN4] Under Slavin, a
patent defect prevents a claim of liability on the part of the contractor
after acceptance by the owner.
FN4. Patent defects are defects which are apparent to a normally observant
person, especially a buyer on a reasonable inspection. Black's Law
Dictionary 429 (1999).
In the instant case, Foreline presented evidence that it had completed the
installation of USB's security system six years before the robbery, that USB
had accepted the security system in 1993, and that USB and its head of
security were required by federal law to "select, test, operate and properly
maintain" their security system. Foreline also asserted that USB and its
head of security were in a superior position to observe the system on a
day-to-day basis and could discover any patent defects in the system, such
as the danger alleged by Scott of placing the VCR and monitor in the
public's view and the danger posed by any alleged lack of panic buttons in
various locations in the branch even though some of those locations had been
wired for panic devices with USB's knowledge. [FN5]
FN5. Evidence was presented that USB elected to not install some panic
buttons in order to reduce the cost of the system.
[2] [3] [4] A trial court commits reversible error when it refuses to give
a requested jury instruction which accurately states the law, if: a) there
is evidence supporting the instruction; and b) the instruction was necessary
to allow the jury to properly resolve all issues in the case. E.g., Cornette
v. Spalding & Evenflo Cos., 608 So.2d 144, 145 (Fla. 4th DCA 1992); Orange
County v. Piper, 523 So.2d 196, 197 (Fla. 5th DCA 1988). Litigants have a
"right to have the court instruct the jury on the law applicable to the
evidence under the issues presented." Ruiz v. Cold Storage & Insulation
Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975). In the instant
case, Foreline, having presented evidence that USB had accepted the security
systems as designed and installed, and that any defects in the system were
patent and were known or should have been known by USB, was entitled to a
jury instruction based on Slavin. Scott argues that a jury instruction based
on Slavin is not necessary as this is a "products liability" case and the
security and video surveillance systems were products, not structural
improvements to the real property. We find no merit in Scott's argument.
See, e.g., Equibank v. U.S. I.R.S., 749 F.2d 1176, 1179 (5th Cir.1985)
(holding that alarm systems from the societal viewpoint, are not movable;
they are electrical installations which become a component part of the
building or construction to which they are attached). See also Travelers
Ins. Co. v. Guardian Alarm Co., 231 Mich.App. 473, 586 N.W.2d 760, 762-63
(1998) (holding that a fire alarm system constituted an improvement to real
property); Qualitex, Inc. v. Coventry Realty Corp., 557 A.2d 850, 852
(R.I.1989), and Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225
N.W.2d 454 (1975) (each holding that fire protection sprinkler systems and
high-pressure water pipes designed for fire protection are improvements to
real property for the purpose of a statute of repose).
II. FRAUDULENT AND NEGLIGENT MISREPRESENTATION
[5] Foreline also contends on appeal that the trial court erred in failing
to grant its motion for a directed verdict on Scott's fraudulent and
negligent misrepresentation claims that Foreline represented that its system
was UL listed or approved. [FN6] In order for Scott to recover on her claim
of fraudulent misrepresentation, Scott must prove, inter alia, reliance on a
fraudulent misrepresentation. E.g., Johnson v. Davis, 480 So.2d 625, 627
(Fla.1985). This same requirement pertains to Scott's negligent
misrepresentation claim. E.g., Baggett v. Electricians Local 915 Credit
Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993). Reliance means that Scott must
show that Foreline made a misrepresentation that she personally relied upon.
See, e.g., Lance v. Wade, 457 So.2d 1008, 1010-11 (Fla.1984). There is no
evidence in the record that Foreline communicated any misrepresentation of
fact to Scott or that Scott relied on any misrepresentation of fact. In
order to prevail, Scott must have known about and relied upon a
misrepresentation of fact; she cannot rely on any statement made to USB
about which she had no knowledge. Accordingly, the trial court erred when it
failed to grant Foreline's motion for directed verdict on Scott's fraudulent
and negligent misrepresentation counts. Scott neither knew of any
misrepresentations of fact, nor could she have relied on any such
statements.
FN6. The significance of the security system not being "UL listed" is not
clear from the record. There is no indication that any security system is UL
listed although some components of a system may be UL approved.
III. COMPARATIVE NEGLIGENCE
Finally, Foreline contends that the trial court erred when it determined
post-verdict that Foreline was solely responsible for the full amount of
Scott's damages. In its answer and affirmative defenses, Foreline raised
several defenses including comparative fault. At trial, Foreline's theory of
liability was that USB, not Foreline, was responsible for Scott's injuries,
or at least a part of those injuries. After Foreline pursued a comparative
negligence theory of liability throughout the trial, the jury was then
instructed by the trial court that "[t]he court in entering judgment will
take into account your allocation of fault." The jury then found USB 50%
liable and Foreline 50% liable. The trial court then ignored the allocation
of fault determined by the jury and ruled that Scott was entitled to
judgment against Foreline for 100% of the award of damages.
[6] We conclude that the trial court erred by not applying the comparative
negligence statute when it misled the jury into believing that it was
allocating fault fifty-fifty between Foreline and USB. The jury may have
reached a different verdict on damages had it known that Foreline would bear
the entire amount.
IV. CONCLUSION
We find that the trial court committed reversible error when it failed to
instruct the jury on Foreline's Slavin rule defense. In addition, the trial
court erred in refusing to enter a directed verdict in favor of Foreline for
fraudulent and negligent misrepresentation because Scott did not show
reliance. The trial court also erred in holding Foreline liable for the full
amount of damages when it misled the jury into thinking that the jury's
allocation of fault would be considered, and it was not.
We remand to the trial court for retrial.
REVERSED AND REMANDED.
SHARP, W. and TORPY, JJ., concur.
Fla.App. 5 Dist.,2004.
Foreline Security Corp. v. Scott
871 So.2d 906, 29 Fla. L. Weekly D511