Wrongful
death — Premises liability — Action against owner and lessee of warehouse by
widow of decedent who fell to his death through a warehouse skylight while
painting the warehouse roof — Trial court did not err in entering summary
judgment for defendants on basis that defendants did not owe a duty to
decedent, an employee of an independent contractor hired to paint the warehouse
roof — 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 an employee of the independent contractor during the performance of
that work — Exception to general rule where property owner exercises direct
control of the work was not applicable where defendants did not exercise
control of the manner in which the work was performed — Exception to general
rule where property owner fails to warn contractor about concealed dangers not
inherent in the work was not applicable where the danger posed by the skylights
was open and apparent and the contractor had been specifically warned about the
danger — Evidence — Trial court did not abuse discretion by striking the
affidavit of a registered architect and licensed building inspector discussing
liability under the South Florida Building Code on the basis that it contained
legal conclusions

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. 3rd District. Case No. 3D14-3007. L.T. Case
No. 13-19279. Opinion filed March 23, 2016. An Appeal from the Circuit Court
for Miami-Dade County, Diane V. Ward, Judge. Counsel: 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, Judge.) 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 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 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 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 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

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 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”).

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 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 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 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, 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.

Affirmed.

__________________

1The 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.

* *
*