[CLC-Discussion] Jury Instructions in a Construction Case involving Common-Law Negligence of a Qualifying Agent

Thu Sep 1 11:22:09 PDT 2016

Use the following below to create one:
COMMON LAW NEGLIGENT SUPERVISION

·         "[A]n owner may recover from a negligent qualifying agent, but only under a common law theory of negligence or through the administrative remedies available pursuant to chapter 489." Murthy v. N. Sinha Corp.  644 So.2d 983, 987 (Fla. 1994)

·          We hold that the negligent performance of the qualifying agent's statutorily-imposed duty of supervision may support a cause of action for damages sustained by subsequent purchasers, such as the appellees, as a result of latent construction defects. We further hold that the qualifying agent's duty of supervision is nondelegable in the sense that such agent will not be allowed to evade responsibility for negligent supervision by relying upon one who, even though apparently a competent builder, has not been certified as a qualifying agent for the company pursuant to Chapter 489. That is to say, the qualifying agent will still be responsible for the negligence of his surrogate regardless of the care which may have been exercised in selecting the latter and regardless of whether the latter is an independent contractor or employee of the qualifying agent's firm. See Mills v. Krauss, 114 So.2d 817 (Fla. 2nd DCA 1959); Bialcowicz v. Pan-American Condominium No. 3, Inc., 215 So.2d 767 (Fla. 3rd DCA 1968), cert. den. 222 So.2d 751 (Fla.1969); 57 C.J.S. Master & Servant § 591; 38 Fla.Jur. 2nd Negligence § 11; 57 Am.Jur. 2nd Negligence §§ 35, 50. Lest there be any doubt, we would emphasize that the cause of action with which we are involved is based upon negligence, not implied warranty or contract. A qualifying agent is not an insurer against construction defects unless he is obligated therefor by contract or warranty. Moreover, under the rationale upon which we rely, the appellees/plaintiffs would not be entitled to recover simply by proving that Gatwood improperly delegated his responsibility of supervision. It must be shown that, by the qualifying agent's exercise of due care in carrying out his statutorily-imposed duty of construction supervision, the construction defects could reasonably have been avoided. As we previously mentioned, there was evidence presented supporting a finding that the exercise of *724 due care would have disclosed the conditions which resulted in the construction defects. Gatwood v. McGee,  475 So.2d 720, 723 -724 (Fla. 1st DCA 1985), disapproved in part on other grounds by Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994) (disapproved only to the extent that Gatwood held that liability could be based on Chapter 489)
·         "Negligent supervision occurs when [1] during the course of employment, [2] the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and [3] the employer fails to take further actions such as investigation, discharge, or reassignment. The plaintiff must allege facts sufficient to show that once an employer received actual or constructive notice of problems with an employee's fitness, it was unreasonable for the employer not to investigate or take corrective action. The employer's liability for negligent supervision is not, however, unlimited; not only must [4] the employer owe a duty to the plaintiff, but [5] the breach of that duty must be the proximate cause of the plaintiff's harm. There must be a connection and foreseeability between the employee's employment history and the current tort committed by the employee." Department of Environmental Protection v. Hardy  907 So.2d 655, 660 -661 (Fla. 5th DCA 2005)

Sincerely yours,

Address:    1720 Harrison Street, Penthouse B

                   Hollywood, FL 33020

Office:       (954) 620-5000

Fax:           (954) 620-5105

Web#1:      www.TheConstructionLawyers.com<http://www.theconstructionlawyers.com/>

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.com<http://www.thetitlelawyers.com/>

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.com<http://www.thecorporatelawyers.com/>

[Randall Gilbert][cid:image003.gif at 01CD3F4A.EF94F960]

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Thursday, September 01, 2016 9:53 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Jury Instructions in a Construction Case involving Common-Law Negligence of a Qualifying Agent

Does anyone have a sample jury instruction on the above issue that they would be willing to share?

I am more focused on how the damages are presented than anything else.

I have the common-law negligence standard jury instructions promulgated by the Florida Supreme Court.

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Sean A. Mickley
Attorney at Law
Gould Cooksey Fennell
979 Beachland Boulevard
Vero Beach, Florida 32963
Telephone: (772) 231-1100
Direct Line: (772) 316-1062
Facsimile: (772) 231-2020
smickley at gouldcooksey.com<mailto:smickley at gouldcooksey.com>

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