Smyth ex rel. Estate of Smyth v. Infrastructure Corp. of Am., 113 So. 3d 904, 906 (Fla. Dist. Ct. App. 2013)

This negligence action involved a fatal auto accident on I-75.

On November 15, 2006, at approximately 9:00 p.m., Edward E. Smyth was driving south on I–75 near Riverview. He was traveling among a group of closely grouped cars in the fast lane. The 4th or 5th car in the group happened to be a state trooper, who attested to the entire chain of events. The trooper testified that the first car slammed on its brakes and that the second or third car veered into the right-hand lane.

Unfortunately Mr. Smyth was not so fortunate to avoid a collision and slammed into a slower moving fuel tanker truck. The incredible force of the impact intertwined Mr. Smyth’s car to the tanker truck and ripped a gash into the fuel tank. Oblivious to the collision, the truck driver continued to drive down the interstate with Smyth’s car trapped to the rear of his trailer. The truck’s large fuel tank caught fire and Smyth was engulfed in the flames. The trooper stated that immediately in front of the lead car that slammed on its brakes was a giant tractor mower on the interstate. The mower had its lights on for the operation of the mower but was not mowing on the right of way and was in the fast lane traveling about 25 miles per hour in the pitch black of night. The mower was owned by Titan Lawn Service and operated by Titan’s owner Mr. Williamson. The accident recreation indicated that the pickup truck behind Smyth was unable to stop when the brake slamming suddenly occurred and hit Smyth’s car on the left rear bumper which launched him into the lane where he hit the fuel tanker.

Kay Smyth, the personal representative of Mr. Smyth’s estate, filed a wrongful death action against the owner of the pickup truck, Mr. Williamson, Titan Lawn service, Infrastructure Corp. of America and the Department of Transportation. The suit against ICA and DOT are the same alleging that the defendants negligently failed to supervise or instruct the operator in safe operation of the mower rig near a highway and that both DOT and ICA have no delegable duty to maintain the right of way so that motorists are reasonably safe to travel on the interstate. DOT and ICA argued that they are not legally responsible for the actions of its subcontractor. The trial court granted summary judgment to ICA and DOT on the issue that they were not liable for the actions of the subcontractor.

On appeal the Second District Court found that the summary judgment was not warranted based on the testimony of the trooper and that of even ICA’s own safety expert that the cars too evasive maneuvers to avoid the mower. The court reasoned that generally the employer is not liable for the negligent acts of the independent contractor, that rule is subject to many exceptions. When the circumstances allow it, the court can determine whether a particular risk creates a non-delegable duty. According to the facts of this case all highway maintenance involving large mowers do not create non-delegable duties. However, the operation of these mowers arguably falls within the scope of an inherently dangerous activity. An activity is inherently dangerous if the “danger inherits in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken. The court concluded that it was unable to find that operating a mower was inherently dangerous. The court concluded that since DOT’s contract with ICA included insurance coverage, DOT had paid to for protection for non-delegable duty risks. ICA had breached the contract by failing to notify DOT of Titan doing the actual mowing and if ICA had notified DOT then they would have made sure the Titan was fully insured. Therefore ICA could be held liable for the negligent acts of the independent contractor and remanded the case for further proceedings.

If you are involved in an accident and are not sure about who is at fault, you should contact an attorney and tell them about your incident. The Fort Lauderdale accident attorneys of Madalon Law will gladly go over your case with you and answer any questions you may have.