Does a truck parked on the shoulder of the road loaded with a utility pole constitute an inherently dangerous activity as a matter of law? Florida’s Second District Court of Appeal weighed in on this question in a recent wrongful death case.
The case arose from a horrific accident that resulted in the death of a motorist. After stopping about 75 feet before a worksite where large utility poles were being installed, the decedent was rear-ended by another motorist, who had been driving more than 90 miles per hour. The impact threw the decedent’s car into the back of a tractor trailer parked on the shoulder of the road along the worksite. The truck’s back left tire was sitting on the white line and slightly over.
The decedent was severely injured and eventually died of his injuries. His estate brought a wrongful death claim against the reckless driver, the general contractor, and other defendants.
In the pretrial phase of litigation, the general contractor defendant moved for summary judgment on the basis that it should be entitled to setoffs for the negligence of other defendants and its subcontractors, including the trucking company who owned the tractor trailer and a crane company hired to move utility poles. The estate argued that the general contractor was engaged in an inherently dangerous activity and therefore not entitled to setoffs.
In Florida, general contractors are entitled to a set off of damages if a subcontractor’s negligence contributed to the plaintiff’s injuries. But Florida generally follows the Second Restatement of Torts, which provides an exception to this rule. The Second Restatement and Florida case law hold an independent contractor liable for the negligence of its subcontractors if the independent contractor is engaged in an “inherently dangerous activity.” This term of art is clarified as activities that, unless the contractor takes special precautions, would likely create a risk of physical harm to others.
The question before the Second District was whether the truck parked on the shoulder of the road constituted an inherently dangerous activity.
Based on Florida case law, the court held that, in its view, it was not an inherently dangerous activity. However, since the plaintiff presented evidence that there may have been aggravating circumstances, including the facts that the truck’s tire was over the white line and the corner of the trailer may have interfered with the flow of traffic, there was a genuine question of material fact. Thus, summary judgment was not appropriate, and the issue should go to the jury as a factual question.
Floridians who lose loved ones because of the negligence of a contractor or subcontractor can hold these parties responsible for their injuries by bringing a wrongful death action in Florida state court. Many times, Florida law governing the liability of general contractors and subcontractors is complex, as the recent case before the Second District illustrates. The Southwest Florida injury attorneys at Lusk, Drasites, & Tolisano have the knowledge necessary to help you seek compensation for your injuries from any party that may be liable under Florida law. To learn about your rights, call (800) 283-7442.