author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. John MATERA, Appellee.
    No. 80-1181.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Sept. 1, 1981.

      Janet Reno, State Atty., and Ira N. Lo-ewy, Asst. State Atty., for appellant.
    Milton E. Grusmark and Robert Kalter, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The trial court, because of a “totality of circumstances,” granted Matera’s Rule 3.850 motion and vacated his thirteen-year-old robbery conviction. We have examined the record before the trial court and find no circumstances which would warrant a finding that Matera’s conviction was obtained in violation of the Constitution or laws of the United States or the State of Florida. We therefore reverse with directions that Matera’s conviction be reinstated.

Matera’s motion for relief was based on four grounds. He complained that (1) several phone calls he made from a public telephone booth at the Dade County Jail in April 1966, shortly after his arrest and a year before his trial, were illegally intercepted; (2) his conversations in a New York club before the robbery were bugged; (3) he was identified at trial because of a preceding suggestive show-up of which he was not aware; and (4) he was deprived by State conduct of the testimony of a witness who would have impeached a key State witness, Braverman.

We devote only so much space and time as is required to demonstrate that Matera’s claim for relief, facially impressive, is more sound and fury than substance.

At Matera’s trial the simple issue was the identification of Matera as one of the participants in the morning holdup of the' Harbor Island Spa in Miami. Matera was identified by a single witness, one Jesse Lee Lamons, a driver for a Miami laundry. La-mons testified that he went to the Spa to deliver laundry. As he unloaded the laundry, he observed a man, whom he later identified as John Matera, standing just inside the door of the hotel. Matera then walked out onto the porch, and Lamons said “good morning” to him. Lamons brought three blankets inside the door and returned to his truck for more. As he came back with a second set of blankets, Matera grabbed him by his arm and told Lamons that he wanted to show him something. When Lamons resisted him, Matera shoved Lamons. When Lamons shoved back, another' person, a big man wearing a mask, came up with a gun. Matera and the other man subdued Lamons and took him into a bathroom in the hotel, where he was handcuffed and locked up with a Mr. Appleton. During this period, Lamons saw Matera come to the door of the bathroom twice.

Lamons testified that on April 1, 1966, the morning following the robbery, he identified Matera in a live line-up at Public Safety Department Headquarters. Photographs depicting the line-up were admitted into evidence. Lamons identified the man he selected as the number four man in the photos, John Matera.

Lamons testified that about a month after the robbery, in May 1966, he and another witness, Yerby, went to New York. While in New York, Lamons, Yerby, and a third man, Bruce Braverman, spent some time at the office of the New York District Attorney looking at pictures. Lamons stated that he did not have a chance to identify anyone in the courtroom in New York. Matera’s counsel extensively cross-examined Lamons in an effort to impeach the reliability of his identification of Matera.

I.

The Dade County Phone Tap.

A State investigator recorded three telephone calls made by Matera from the jail after his arrest. One was to a telephone information operator; one to a person assumed to be a member of Matera’s family; and one to the office of the lawyer who represented Matera immediately after arrest, but not at trial. The conversation with an unidentified party at the lawyer’s office lasted about forty to ninety seconds and consisted of Matera inquiring about obtaining a bondsman. No overheard conversations were introduced at Matera’s trial, and no evidence, as must be obvious, was shown to be derived therefrom. Indeed, the prosecutors for the State testified that when Matera was tried, they were unaware that a tap had occurred. Thus, even if, arguendo, Matera’s Fourth or Sixth Amendment rights were violated by the tap in question, the violation produced nothing that affected Matera’s trial.

II.

The New York Surveillance.

In early 1966, before the robbery, electronic surveillance was in effect on the phones and premises of the Embe Club in New York. Matera was overheard saying that he was going to Florida with another person and later overheard, on the phone, saying that he was in Florida. Neither of these conversations was introduced in Mat-era’s trial. When Michael Metzger, an Assistant District Attorney in New York instrumental in and familiar with the Embe surveillance, read about the Harbor Island Spa robbery, he called the Dade County Sheriff’s Office to find out if they had Matera’s picture. When they said they did not, he sent them a picture, which Matera argues was used by the police to help them identify and arrest Matera.

Presumably, it is Matera’s position that were it not for the Embe Club electronic surveillance, Metzger would not have sent the police Matera’s picture; were it not for the police having his picture, Matera would not have been arrested; and, of course, if Matera had never been arrested, he would never have been identified by Lamons in a line-up and at trial and never have been convicted.

Matera makes no claim, and has never made any claim, that his arrest was unlawful as being not supported by probable cause. He makes no claim, and indeed the evidence is to the contrary, that his picture forwarded by Metzger to Dade County was the product of a former illegal arrest. He makes no claim that Lamons ever saw or identified him from the picture. He makes no effort to show that the picture was ever used by the police. He baldly asserts that his conviction is somehow tainted by the Embe Club electronic surveillance which led to the forwarding of the picture.

While it is doubtful that this record demonstrates the slightest causal connection between the electronic surveillance and the evidence leading to Matera’s conviction, if it could arguably be said that one exists, it is so clearly attenuated as to dissipate any possible illegality. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Shayne v. State, 384 So.2d 711 (Fla. 3d DCA 1980); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1980). Accordingly, this claim by Matera cannot be a basis for relief.

III.

Suggestive Identification.

The record affirmatively and abundantly shows that Matera’s trial counsel knew before trial that Lamons and other witnesses had gone to New York together and that they were shown photos of the defendants. The decision of Matera’s trial counsel not to attack Lamons’ identification of Matera on the theory that Lamons’ viewing of Matera’s picture in New York affected the in-trial identification (understandable in light of the fact that months before he went to New York, and on the heels of the crime, Lamons had picked Matera out of a line-up that itself was never attacked as suggestive) precludes Matera from having such an issue, available to have been litigated at trial, considered on a Rule 3.850 motion thirteen years later. Carillo v. State, 382 So.2d 429 (Fla. 3d DCA 1980); State v. Gomez, 363 So.2d 624 (Fla. 3d DCA 1978); Hughes v. State, 354 So.2d 130 (Fla. 3d DCA 1978); Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975).

Moreover, as the earlier factual recitation of the crime reveals, even if there had been a suggestive show-up of Matera in New York observed by Lamons some months after Lamons’ unchallenged earlier identification of Matera, there is not, under the totality of the circumstances, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), any substantial likelihood that the New York show-up led to Lamons misidentifying Matera, see Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978); Bittner v. State, 330 So.2d 855 (Fla. 3d DCA 1976); Johnson v. Wainwright, 523 F.2d 1253 (5th Cir. 1975); United States v. Rodriguez, 510 F.2d 1 (5th Cir. 1975). Indeed, Lamons’ identification of Matera in a nonsuggestive line-up within hours of the robbery obviates the necessity of considering the constitutionality of a suggestive show-up in New York months later if, arguendo, one had occurred, Johnson v. Wainwright, supra; United States v. Rodriguez, supra.

IV.

The State’s Suppression of A Witness To Impeach Braverman.

Matera contended that the State prosecutors suppressed material evidence favorable to Matera in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when they told Michael Metzger, a New York District Attorney (who could impeach Braverman, a State witness, by testimony that Braverman lied and admitted lying), to go back to New York. It is enough to say that this claim was disposed of earlier by the Supreme Court of Florida, which held in State v. Matera, 266 So.2d 661, 665 (Fla.1972):

“Braverman was so extensively impeached by both the prosecution and the defense, covering hundreds of pages of transcript, that little, if anything, remained of his credibility. But even if the jury chose to rely on his testimony that one of the defendants said in March of 1966 that he was going to Miami to make a ‘score’ and infer therefrom that the Harbor Island Spa robbery was the intended ‘score’, the evidence is of little significance in the case. ...”

See also Galtieri v. Wainwright, 582 F.2d 348, 362-64 (5th Cir. 1978). This holding is quite clearly the law of the case and is dispositive of Matera’s claim. There simply is no reasonable likelihood that further impeachment of Braverman could have altered the jury’s verdict.

We close this latest chapter of Matera’s quest for relief from his valid conviction. Whatever else Matera may have shown, he has shown no cognizable damage to himself and, accordingly, is not entitled to have his conviction vacated.

Reversed and remanded with directions to reinstate Matera’s conviction.

      . For those who are interested in Matera’s pri- or efforts to be relieved from his conviction, we refer them to Matera v. State, 218 So.2d 180 (Fla. 3d DCA 1969); Matera v. State, 254 So.2d 843 (Fla. 3d DCA 1971); State v. Matera, 266 So.2d 661 (Fla. 1972); State ex rel. Matera v. Wainwright, 277 So.2d 611 (Fla. 3d DCA 1973); Matera v. Florida, No. 73-2-Civ-JE (S.D.Fla. March 8, 1973); Galtieri v. Wainwright, 545 F.2d 942 (5th Cir. 1977); Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc); State v. Matera, 378 So.2d 1283 (Fla. 3d DCA 1980).

      . A tap of a public phone booth in 1966 was not violative of the Fourth Amendment, which at that time was held to exclude wiretap evidence only where there was “an actual physical invasion of the defendant’s house ‘or curtilage’ for the purpose of making a seizure.” Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). In 1967, the Supreme Court, in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), shifted the emphasis to the privacy expectations of the individual whose conversation is seized, but Katz’s applicability was later held to be limited to electronic surveillance conducted after December 18, 1967. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). As previously stated, the tap in Matera’s case occurred in 1966.
      Moreover, as to Matera’s conversations with other than his counsel’s office, Matera, as a prisoner in jail, even post-Katz, had no protect-able expectation of privacy. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); Brown v. State, 349 So.2d 1196 (Fla. 4th DCA 1977); Williams v. Nelson, 457 F.2d 376 (9th Cir. 1972); United States v. Hearst, 412 F.Supp. 888 (N.D.Cal.1976); North v. Superior Court of Riverside County, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305 (1972).

      . A governmental intrusion into the attorney-client relationship, while not condoned, is not ipso facto a violation of the Sixth Amendment right to counsel. Absent proof that the substance of the overhead conversation was of benefit to the prosecutor, the constitutional right is not impinged. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); United States v. Sander, 615 F.2d 215 (5th Cir. 1980); United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980); United States v. Franklin, 598 F.2d 954 (5th Cir. 1979); Mastrian v. McManus, 554 F.2d 813 (8th Cir. 1977); United States v. Meinster, 478 F.Supp. 1131 (S.D.Fla.1979).

      .Once again, as in the tap of the phone booth, see n. 2, supra, the 1966 electronic surveillance of the Embe Club was not violative of Matera’s Fourth Amendment rights. At the time the surveillance was in effect, it was valid under New York law. Evidence validly procured under the laws of a sister state is admissible in Florida provided only that the issuance and execution of the warrant is not constitutionally infirm. See McClellan v. State, 359 So.2d 869 (Fla. 1st DCA 1978). It was not until June 12, 1967 (a year after the electronic surveillance of the Embe Club and months after Matera’s trial), that the New York electronic surveillance statute was struck down in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and not until later in 1967 that Olmstead v. United States, supra, and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), were overturned in Katz v. United States, supra. See n. 2, supra. Katz was held prospective only in Desist v. United States, n. 2, supra, and Berger held prospective only in Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969). Thus, given that Matera had no proprietary interest in the Embe Club, but was a mere customer, under the law applicable in 1966 (the then valid New York statute, Olmstead and Goldman), no Fourth Amendment right of Matera was offended.

      . Even if Matera’s arrest were illegal, Lamons’ trial testimony and in-court identification of Matera would clearly be admissible. United States v. Crews, supra; State v. Maier, supra; United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980); United States ex rel. Moore v. Lane, 612 F.2d 1046 (7th Cir. 1980); United States v. Carsello, 578 F.2d 199 (7th Cir. 1978); Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974); Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973); United States v. Balistrieri, 403 F.2d 472 (7th Cir. 1968), vacated and remanded on other grounds, 395 U.S. 710, 89 S.Ct. 2032, 23 L.Ed.2d 654 (1969).

      . Matera presented evidence of a suggestive show-up, not of himself, but of Galtieri, his co-defendant.

      . We add, however, that the defense was aware of Metzger’s ability to impeach Braverman; aware that Metzger was returning to New York; indicated that if they wanted to call Metzger as a witness, they would subpoena him. Additionally, this ground for relief was abandoned below and specifically not considered by the trial court.

      . Braverman’s testimony as it related to Mat-era is even less significant, since Braverman testified that it was Galtieri who made this statement to him.


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

license: Public Domain

text:
    Alfred E. REICHENBACH and Thia Reichenbach, Appellant, v. DAYS INN OF AMERICA, INC., and Sentry Indemnity Company, Appellees.
    No. 80-300 & 80-603.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Aug. 18, 1981.

      Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellants.
    Mary Patricia C. Fawsett of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a summary final judgment holding a motel not liable for an assault on one of its guests. We affirm.

Appellant, Alfred E. Reichenbach, was a guest at appellee’s motel. At approximately 10:00 p. m., he parked his car in the parking lot and proceeded to step out of the car. At this point, an assailant came up and stated: “Don’t do anything foolish.” Reichenbach responded, “what” and was immediately shot twice. The assailant fled. The incident occurred so quickly that appellant could not identify or describe the assailant. A bus driver, the only eyewitness, was present with a charter group as a guest of the motel. Just before the shooting he had noticed a security guard making his rounds in the area where the event took place. Another employee was also patrolling. A few minutes after seeing the guard he saw a young, white male on the walkway. They greeted each other and he noticed “nothing unusual whatever” about the man and nothing to indicate he was armed. The bus driver walked upstairs onto the breezeway overlooking the parking lot. He then noticed appellant drive into the parking lot. As appellant got out of the car, the young man ran up to him, shot twice, ran to another car in the parking lot and left.

An innkeeper may be liable if he fails to take reasonable precautions to deter the type of criminal activity which resulted in a guest’s injury. See Orlando Executive Park v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981). In the case before us, there was no evidence that the innkeeper could have deterred or prevented appellant’s injury by reasonable precautions which were not taken. There was no evidence that this incident was foreseeable or that the motel had any practical or reasonable method to protect its guest from or prevent this unprovoked hit and run attack.

AFFIRMED.

COBB, J., concurs.

COWART, J., concurs specially.

COWART, Judge,

concurring specially:

I specially concur with the majority opinion but write to point up what I perceive as an aberration of existing tort principles.

A registered guest of a motel is entitled to receive from the innkeeper the degree of care owed a business invitee. Generally, an innkeeper stands in such a special relation to guests that the innkeeper has a duty to take reasonable action to protect them against unreasonable risks of physical harm and this duty can include the obligation to exercise control over the conduct of third persons and to prevent a third person from criminally assaulting a guest.

The duty of an innkeeper to protect guests from the danger of a criminal assault by a third person presents an interesting problem relating to the concept of foreseeability. Appellants maintain that the location or particular character of a specific motel business, or past experience, should cause the innkeeper to reasonably anticipate that criminal assaults are likely to endanger the safety of guests. It is contended that ability to generally foresee such danger creates a duty on the innkeeper to take affirmative action to deter persons intent on such wrongful conduct and to warn guests of prior criminal activity. From these broad premises it is argued that a specific criminal assault on a guest by a third person was the proximate cause of, or resulted from, the failure of the innkeeper to meet this duty.

That motel guests will be criminally assaulted in the future is not only foreseeable — it is a certainty. This will occur not because innkeepers do not protect guests but because crime will continue and citizens generally will continue to be criminally assaulted and motel guests will be no exception. However, the general foreseeability of the risk of a criminal assault upon a guest by a third person only permits such precautionary measures as will deter crime generally. Employing security guards, and installing closed circuit video cameras and lights may deter crime generally, but can not reasonably be expected to prevent all crime or any one specific criminal act. This is evident from the fact that, although society takes action to deter crime generally, law enforcement rarely prevents a crime and then only when, by chance or by specific information relating to a threatened or planned crime, there is opportunity to take specific action to prevent a particular crime. Innkeepers should not be legally required to do that which organized society cannot do. No reasonable standard of care should require one to be ever on guard, ever present, ready and able, to prevent an unforeseeable personal criminal attack upon another. Although crime is foreseeable, generally an innkeeper, as well as others, may, under ordinary circumstances, reasonably assume that third persons will not violate the criminal law and will not intentionally cause harm to guests. Since the innkeeper is not an insurer of the guest’s safety and is not liable, strictly or otherwise, for the acts of third persons, he is under no duty to exercise any care to warn or to take preventive action until he knows, or has reason to believe, that a third person is acting, or is about to act, in a manner as will, or is likely to, cause harm to a guest. By their very nature assaults usually occur suddenly and without warning and without giving an opportunity to defend. Therefore, to prevent an assault by one person upon another requires an opportunity arising from some specific knowledge, notice or warning.

Additionally, even where an innkeeper has reason to believe a third person is likely to assault a guest, an innkeeper’s duty should be coextensive with his ability to meet that duty. This means the innkeeper should not be held responsible for an assault by a third party on a guest unless the innkeeper, acting reasonably, could have feasibly prevented it. There are severe limitations on the capability of anyone to prevent an assault on another person by a third party. First, it is in the nature of things that mobile or free moving objects are difficult to protect and secure. It is for this reason that more vehicles are stolen than other less mobile chattels and that valuable objects are kept in vaults, safety boxes and other various stationary places. Motel guests, like other free citizens, go and come at their pleasure. Also, persons intent on making a criminal assault, especially those not acting on impulse or merely upon an opportunity or perceived necessity, have the advantage of surprise and select the time, place, method and circumstances, rarely giving the victim, the police or an innkeeper an opportunity to prevent the particular assault. Additionally, in earlier times innkeepers were required to accept the public generally but could with some impunity reject or eject persons considered disorderly, intoxicated, dangerous or undesirable. However, now in Florida, motels are not entirely free to exclude guests or persons who visit guests or other members of the public who come to use facilities and services which are customarily available to the public. Thus, the character of a motel is essentially that of a public place and innkeepers lack the usual possessor’s peculiar ability to exercise control over third persons using his property. This “open door policy” extends to all public areas and, while it impairs security, it is a necessary consequence of a free society and of motels and other public and semi-public places. Considering these circumstances, even when there is reason to be apprehensive of potential risk of harm to guests from an assault by a particular individual, the innkeeper must act reasonably and lawfully toward everyone, including third persons who may appear to be suspicious. Unless the circumstances not only give reasonable opportunity but also demand immediate action, when criminal acts are threatened the reasonable prudent present-day innkeeper can normally only call the police.

Lastly, even if the innkeeper realizes, or should realize, that an assault is probable and circumstances do not permit police to be summoned, yet give the innkeeper a reasonable opportunity to act, the innkeeper should have a reasonable ability and method to prevent the assault before he is held liable for not doing so. An innkeeper who personally resorts to physical force risks harm to himself and legal consequences in the form of compensation and punitive damages. Even where physical force is justified, the innkeeper and his employees may not be able to physically restrain a strong, violent or dangerous third person. What if, as here, the assailant is armed? An unarmed innkeeper is no match for an armed assailant. If the innkeeper had been standing at alert beside Dr. Reich-enbach when this assault with a firearm occurred, as a practical matter exactly what could the innkeeper have done to have protected his guest? There are no limitations on the assailant, but the innkeeper’s right to arm himself is severely limited, and there is great penalty if the legal restrictions are disregarded.

This is not a case where an innkeeper or an employee or other person within the control of the innkeeper commits an assault on a guest. Nor does this case involve an innkeeper who neglected to take action after learning of the potential need of a particular guest for protection from some threatened harm. Nor does this case involve a cause of action based on express or implied contract. Neither does this case involve locking devices or other security measures relating to a private room which not only deter crime but, under some circumstances, might be capable of physically preventing access by members of the public generally, thereby preventing an assault. This case involves an alleged neglect of a duty of the innkeeper to prevent a third person from doing intentional harm to a guest in a public area where there was only general knowledge of the possibility of criminal assault but nothing is claimed to have given the innkeeper foresight that a particular person might assault some guest or that a particular guest might be assaulted by someone.

In order for an innkeeper to be liable for breach of his duty to take affirmative action to protect guests from the unlawful assaults of third parties, I would require that specific facts be alleged and proved that would put a reasonable innkeeper on notice that a particular person was likely to assault some guest or that a particular guest was likely to be assaulted by some assailant and, also, specific facts would be required to detail circumstances that afforded the innkeeper a reasonable and feasible opportunity and ability to prevent the particular attack. I would hold here that an innkeeper is not responsible to a guest for a sudden violent criminal assault by a third person which occurred in a public area without warning and under circumstances giving the innkeeper no reason to anticipate the particular assault, no opportunity to act and no reasonable way to prevent it.

      . See Steinberg v. Irwin Operating Co., 90 So.2d 460 (Fla.1956).

      . W. Prosser, The Law of Torts, 349 n. 39 (4th Ed. 1971).

      .Restatement (Second) of Torts § 314A(2) (1965).

      . The motel in the instant case was undisputedly the location of prior criminal acts. Prior to this assault there had been one rape complaint, two armed robberies of motel guests in their rooms, two robberies of the gas station on the premises, and numerous instances of police response to complaints of unidentified activity in and around the motel. However, the innkeeper had no prior warning or notice that Dr. Rei-chenbach might be harmed or that the assailant might harm any guest.

      . It is hard to envision just what type of warning would be appropriate. Must the prudent innkeeper maintain highway signs and placards at the registration desk warning potential customers that if they become guests of his motel they may be criminally assaulted by unknown third persons?

      . To deter is to inhibit, to turn aside or to discourage and the success of efforts to deter depends on the person sought to be deterred. To prevent is to stop, to obstruct or to deprive another of the power to act regardless of his will or desire to act. The success of an effort to prevent depends largely on the opportunity, means and ability of the one who seeks to prevent an act or result. The difference in these terms illustrates the innkeeper’s plight and the fallacy in the argument that a failure to deter criminal acts generally is evidence of the breach of a duty to prevent a threatened assault. Only law-abiding citizens and timid would-be offenders are deterred. Bold determined robbers, rapists, murderers, and other criminal assailants are not deterred and are rarely thwarted. As a practical matter their failures result from the inadequacy of their own abilities and efforts and not from the intervention of others. This unhappy truth should be obvious to all who are experienced in the criminal justice system, or who have contemplated the history of assassinations, or who observed Jack Ruby shoot Lee Harvey Oswald. Indeed, since the oral argument in this case, two staggering events have occurred. First, on March 30, 1981, a man attempted to assassinate President Ronald Reagan, possibly the most intensely protected individual in the United States. Barely a month and a half later, a similar assassination attempt was made on the life of Pope John Paul II. Although no one would contend these events resulted from the negligence of the property owner, it is interesting to note that President Reagan’s assassination attempt occurred as he was exiting from a hotel, the entity involved in both this case and Orlando Executive Park v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981).

      . It should also be noted that, in the performance of its duties, law enforcement has certain immunities and rights to use force that citizens do not have.

      . The Florida Crime Index released by the Florida Department of Law Enforcement on November 13, 1980, shows that violent assaultive crimes (murder, rape, robbery and aggravated assault) comprised 11.7 percent of all reported index offenses for the first nine months of 1980 and reflected a 28.9 percent increase over the same period in 1979. Certainly bank robbery is the one assaultive crime most easy to anticipate and to prevent, yet in the 10 years following the Bank Protection Act of 1968, bank robberies increased fourfold and last year reached 7,037 nationwide. Employees of motels, along with those of convenience stores and service stations, are themselves prime victims of robberies and other assaults.

      . W. Prosser, The Law of Torts, 282 n. 97 (4th Ed. 1971).

      . Perspective requires one to bear constantly in mind that the assaultive act of the criminal assailant is the legal efficient, or proximate cause of a victim’s injuries. This is not a case where the assailant’s acts and the innkeeper’s acts join together to contribute to a guest’s injuries. We are here only concerned with an innkeeper’s duty to take steps to prevent an injury which he in no way affirmatively causes or to which he contributes.

      . The argument will be made that the failure to impose liability on the innkeeper under the facts of this case will result in motels foregoing all precautions to protect their guests. 1 do not believe this will result. There is an economic incentive to provide general deterrent measures. With a growing concern for crime, a traveler will choose the safest accommodations available. In an industry peculiarly dependent upon goodwill, it is in an innkeeper’s own interest to employ general deterrent measures to enhance its good name and reputation. Secondly, the innkeeper must be reasonably prepared to meet his duty to prevent assaults on guests when he has an adequate opportunity and it is reasonably possible for him to do so.

      . See Restatement (Second) of Torts § 344, Comment f (1965).

      .Generally, criminal acts have been found foreseeable, creating a duty to prevent them, only when a defendant with a duty knew or should have known that a specific person was likely to assault someone. See Sabatelli v. Omni International Hotels, Inc., 379 So.2d 444 (Fla. 3d DCA 1980); Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla. 2d DCA 1978); A Trysting Place, Inc. v. Kelly, 245 So.2d 875 (Fla. 3d DCA 1971); Sparks v. Ober, 192 So.2d 81 (Fla. 3d DCA 1966); Nance v. Ball, 134 So.2d 35 (Fla. 2d DCA 1961). Cf. Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980) (no liability was found when the wrongdoers were complete strangers to the landowner and to the victims, and where the incident occurred precipitously). In the absence of actual or constructive knowledge of the particular risk and a reasonable opportunity to protect from that harm by preventing the act, duties have not been imposed. See, e. g., Abblett v. The First Nat. Bank & Trust Co., 392 So.2d 331 (Fla. 4th DCA 1981) [1981 F.L.W. 169]; Drake v. Sun Bank & Trust Co. Inc., 377 So.2d 1013 (Fla. 2d DCA 1979); Gottschalk v. Smith, 334 So.2d 102 (Fla. 3d DCA), cert. denied, 341 So.2d 1085 (Fla. 1976); Nance v. James Archer Smith Hospital, 329 So.2d 377 (Fla. 3d DCA), cert. denied, 339 So.2d 1171 (Fla.1976); Warner v. Fla. Jai Alai, 221 So.2d 777 (Fla. 4th DCA 1969), cert. denied, 235 So.2d 294 (Fla. 1970). Accord, Ellis v. Safeway Stores, Inc., 410 A.2d 1381 (D.C. 1979). See also Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980) [1980 F.L.W. 1804] (holding that a tavemkeeper having no knowledge of the violent character of the patron who assaulted another patron had no duty to take action because he had inadequate notice of the need and an inadequate opportunity to act to prevent the harm).

      . Man’s best efforts to control a potential assailant are impotent. On July 16, 1980, Richard Sherman “Bush Ax” Williams, a Florida State Prison inmate, fatally stabbed a fellow inmate through the bars of his cell. Since then, Thomas Knight, a death row inmate, fatally stabbed his prison guard, Richard Burke.

      . See § 509.092, Fla.Stat. (1979). See also Annot., 7 A.L.R. Fed. 450 (1971).

      . “[B]y the very nature of the business, the operator of the hotel is bound to anticipate that a registered guest is apt to have business and social callers.” Steinberg v. Irwin Operating Co., 90 So.2d 460, 461 (Fla.1956).

      . Restatement (Second) of Torts §§ 318, 866 (1965).

      . This reasonable and proper action creates police reports suggesting criminal activity in the area which, as here, is used as evidence against the innkeeper.

      . See § 790.25(3)(n), Fla.Stat. (1979); Brevard County v. Bagwell, 388 So.2d 645 (Fla. 5th DCA 1980).

      . Herring v. State, 393 So.2d 67 (Fla. 5th DCA 1981).

      . Of course in such event the innkeeper would be liable not for negligence but for the intentional tort.

      . See Restatement (Second) of Torts § 302B, Comment e.D., Illustration 9, and § 317 (1965).

      . See Restatement (Second) of Torts § 302B, Comment e.B., Illustration 4 (1965). See also Burnsed v. ABC Liquors, Inc., 393 So.2d 7 (Fla. 1st DCA 1980). Accord, Rahmel v. Lehndorff, 142 Cal. 681, 76 P. 659, 65 L.R.A. 88, (1904); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928).

      . See Ten Associates v. McCutcheon, 398 So.2d 860 (Fla. 3d DCA 1981).

      . See Whelan v. Dacoma Enterprises, Inc., 394 So.2d 506 (Fla. 5th DCA 1981); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980); Rosier v. Gainesville Inn’s Association, Inc., 347 So.2d 1100 (Fla. 1st DCA 1977). Accord, Fortney v. Hotel Rancroft, 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).


author: PER CURIAM.

text:
    Michael James WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1555.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Michael James Ward, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY,. NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: SHARP, Judge.

text:
    Mary M. MAHAFFEY, Appellant, v. James W. MAHAFFEY, Appellee.
    No. 80-781.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    D. Arthur Yergey of Yergey & Yergey, Orlando, for appellant.
    George E. Adams of Adams & Hill, Orlando, for appellee.
   SHARP, Judge.

The parties appeal from a final judgment of dissolution. The former husband urges the trial court erred in awarding the wife: (1) $200,000 lump sum alimony, (2) the use and possession of the marital home during the minority of the two children in the wife’s custody and allowing her to recoup on sale of the home, one-half of the mortgage, taxes, insurance, maintenance and upkeep on the house, (3) $1,100 per month permanent alimony, and (4) $15,000 towards payment of the wife’s attorney’s fees. The wife argues the trial court erred by: (1) failing to award a larger amount of lump sum alimony and in not making it payable at a definite time and in definite amounts, and (2) failing to grant her a $20,000 special equity in the marital home. We affirm the judgment in all respects except the provisions for payment of the lump sum alimony, and we remand this proceeding to the trial court for reconsideration consistent with the views expressed in this opinion.

At the time of the dissolution the parties were in their early forties, and had been married for twenty years. They had four children and two were still minors: a boy eleven years old and a girl thirteen years old. The wife had been primarily a housewife during the marriage. Recently she began a small clothing business, which produced a small net income. From her family the wife inherited some funds and properties, and she owned one-half the marital home, which had been appraised at $225,-000. Some $20,000 of her inherited funds were used to make part of the down payment on the marital home, and to remodel and furnish it. Her net assets totaled approximately $200,000.

She testified she needed in excess of $5,000 per month to maintain herself and the children in the lifestyle they enjoyed during the marriage. The husband had paid most of their living expenses, so she was uncertain about the accuracy of her financial affidavit. He testified their needs were only $2,090.00 per month.

The husband agreed there was no question he could pay a reasonable amount of alimony. He is a wealthy, successful apartment and real estate owner and developer. His net worth statement for 1979 totaled $1,441,782. Over the years, his net worth had steadily increased and the assets had been acquired during the marriage. In 1978 he paid $36,350 in federal income taxes and in 1979 he expected to pay $91,500. He estimated $72,000 as his tax bill for 1980.

Most of the husband’s property consisted of his interests in some eighteen to twenty partnerships which owned, developed or managed apartments. In each case he held a minority percentage or interest in the partnership, and each partnership had restrictions on his right to sell or transfer his partnership interest. Three projects which were generating heavy taxes had been sold in the past two years. The husband testified that the forced sale of his business interests would cause him financial disaster. If forced to liquidate them, the taxes would reduce his net worth to only $472,000. At the trial the attorneys for both parties and a witness who was a C.P.A. agreed that the award of lump sum alimony to the wife of an interest in the partnership assets, would be a “taxable event” or “sale” to the husband. I.R.C. § 71(a) and (c)(1).

The lower court originally awarded the wife $800 per month in child support and $800 per month permanent periodic alimony. It also awarded her $400,000 in lump sum alimony payable in increments of one-half the net profit obtained by the husband on sale or liquidation of any partnership interest shown in his financial statement, or upon his death, whichever occurred first. On rehearing the court increased the permanent periodic alimony to $1,100 per month and reduced the lump sum alimony to $200,000. As did the prior judgment, the amended judgment required payment of the lump sum alimony in increments of one-half the net profit obtained by the husband upon sale or liquidation of a partnership interest or upon his death, whichever occurred first. In any event, $100,000 of the $200,000 must be paid within five years.

The trial court’s judgment should be upheld unless the conflicting party shows an abuse of discretion or lack of substantial evidence to support the ruling, or an error of law. Most of this judgment accordingly must be affirmed:

(1) We find no error in awarding the wife exclusive possession and use of the marital home during the minority of the children in her custody or until she dies or remarries. This is a frequent provision is dissolution judgments and is generally deemed to be in part a discharge of the child support obligation of the non-custodial parent. Alford v. Alford, 364 So.2d 1255 (Fla. 2d DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 424 (Fla. 1977). The requirement that the wife be given credit on sale of the house for one-half of the mortgage payments, taxes, insurance, maintenance and upkeep on the home is also a standard provision, perhaps required by the law of joint tenancy. Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979). See Power v. Power, 387 So.2d 546 (Fla. 5th DCA 1980). The inclusion of unlimited sums for “maintenance” and “upkeep” goes further than may be normally appropriate. However, in this case where the court chose not to recognize the wife’s “special equity” in her $20,000 contribution to the home under circumstances where such an award may have been permissible, this broader award is within the lower court’s discretion.

(2) The amount set for permanent periodic alimony and its award are well within the trial court’s discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).

(3) The record supports the award of attorney’s fees to the wife. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Cummings v. Cummings, 330 So.2d 134 (Fla.1976). The wife has no cash or liquid assets and her primary source of income is the periodic alimony awarded in this judgment.

(4) The amount of lump sum alimony awarded ($200,000) appears to us as also well within the trial court’s discretion considering the nature of the husband’s assets and the apparent tax consequences of their sale or other disposition. Further, it is augmented by the award of substantial periodic alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The concept of “equitable distribution” does not require an equal division of the assets acquired during the marriage between the parties although that is a good starting point in most cases.

Having determined that lump sum alimony of $200,000 is appropriate, the lower court should then have set a definite time and manner for its payment. Lump sum alimony may be payable in installments over a time period and it can be made up in whole or in part by cash or property. However in this case, the provisions of the judgment are so contingent and vague as to when the payments are due, and the amount of the payments, it is entirely possible the wife will never receive the final $100,000 and she will probably have to wait the full five years to receive the first $100,-000. Clearly it is unreasonable to require her to wait until her former husband dies to receive equitable distribution of her share of the marital assets. 27B C.J.S. Divorce § 250 (1959); See Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980).

We therefore remand this proceeding to the trial court to set a definite payment schedule for the lump sum alimony award. Codie v. Codie, 328 So.2d 863 (Fla. 2d DCA 1976). In all other respects the judgment is affirmed.

AFFIRMED in part, REVERSED in part and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . The judgment provides:
      6. The Husband shall pay to the Wife lump sum alimony of $200,000 payable in the following manner:
      a. The said $200,000 is to be paid in increments of one-half (V2) of any net profit obtained by the Husband on any sale, transfer or liquidation or any partnership interest shown in the Financial Statement of the Husband dated October 22, 1979 and filed herein on March 7, 1980, or on the death of the Husband, whichever occurs first.

      . Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978); Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976); Ortiz v. Ortiz, 211 So.2d 243 (Fla. 3d DCA 1968).

      . Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981).

      . Yandell v. Yandell, 39 So.2d 554 (Fla.1949).

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

        . Haiberstadt v. Halberstadt, 72 So.2d 810 (Fla.1954); Reid v. Reid, 68 So.2d 821 (Fla.1953); Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978); Oritz v. Oritz, 211 So.2d 243 (Fla. 3d DCA 1968); Pollak v. Pollak, 196 So.2d 771 (Fla. 3d DCA 1967); Katz v. Katz, 159 So.2d 241 (Fla. 3d DCA), cert. denied, 166 So.2d 594 (Fla.1964).


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    Ben C. PADILLA, Appellant, v. GULF POWER COMPANY, Appellee.
    No. SS-24.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Jack Chisolm, of Hipsh & Chisolm, P. A., Pensacola, for appellant.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Padilla appeals from a summary final judgment for Gulf Power in this action for personal injury damages. Factual issues as yet unresolved require reversal.

Padilla, an employee of Foster-Wheeler Energy Corp., a maintenance contractor, was injured while working for Foster-Wheeler on Gulf Power’s premises. Foster-Wheeler was replacing a motor on a coal crusher at Gulf Power’s steam electric generating plant, using a fork lift truck and extensible boom owned by Gulf Power and supplied to Foster-Wheeler for precisely the kind of heavy lifting operation Foster-Wheeler’s employees, including Padilla, were engaged in when he was injured. Padilla’s hand was crushed by a falling motor when the boom in its extended position broke under the motor’s excessive weight. The manufacturer warned of the extended boom’s limited lifting capacity on a decal that was attached to the boom when Gulf Power purchased the truck, but that warning was obliterated at the time Padilla or his co-workers overloaded the extended boom on this occasion. Previously the boom had broken due to an overload, and Foster-Wheeler, at Gulf Power’s request, made the repairs. When it added steel reinforcement to the boom base, Foster-Wheeler covered up the warning decal that listed the lifting capacities of the extensible boom in its extended and retracted positions. There is no evidence that Gulf Power knew this before the accident.

Padilla’s remedy against Foster-Wheeler was of course under the Workers’ Compensation Act, Chapter 440, Florida Statutes. Against Gulf Power, Padilla’s allegation was that Gulf Power negligently failed to maintain the forklift and boom assembly in a reasonably safe condition and failed “to label said extensible boom with its maximum capacity so as to put employees on notice of said capacity.”

In reviewing the summary judgment record, we hold preliminarily that a jury well could have found Foster-Wheeler negligent in covering up the manufacturer’s weight capacity warning decal. The manufacturer affixed the decal to the machine for a purpose, that being to notify users who were otherwise unwarned that the extensible boom could collapse if loaded beyond its stated design limits. By analogy to decisions finding actionable negligence in conduct by the owner of machinery nullifying the manufacturer’s safety device in potentially dangerous machinery, we think a jury well could have found negligence in Foster-Wheeler’s obliteration of the manufacturer’s warning decal. While not disputing Foster-Wheeler’s negligence, the trial court exonerated Gulf Power on the ground that Foster-Wheeler was an independent contractor for whose negligence Gulf Power was not responsible.

Because the parties assume it, we too assume that the relationship between Foster-Wheeler and Gulf Power was generally that of independent contractor and contrac-tee, and that the contractor, Foster-Wheeler, was typically autonomous in its right to control the manner of its performance of the contracted maintenance services. This record does not reveal the actual contract between the parties, and the other evidence is sparse on the issues of control and the right to control maintenance activities. Within the assumed relationship of independent contractor and contractee, then, Gulf Power purchased a fork lift machine necessary for the maintenance of its plant and turned that machine over to Foster-Wheeler.

Green v. Sansom, 41 Fla. 94, 103, 25 So. 332, 335 (1899), fixes Gulf Power’s responsibility in undertaking to furnish machinery for use by Padilla, an independent contractor’s employee. The Court there held that the injured Sansom was shown to be Green’s servant, not the servant of an independent contractor engaged by Green, so (in those days before workers’ compensation) Sansom was held entitled to recover for any negligence by his master, Green, in furnishing him a defective rope. Yet the Court held also that Green, having undertaken to furnish the tools necessary for the work, would have had the same duty toward Sansom had he been found, instead, to be the employee of an independent contractor engaged to do the work:

Where the employer undertakes to furnish his own employee, or those of an independent contractor, some of the implements or instrumentalities for executing the required work, he thereby assumes a duty to exercise ordinary and reasonable care, measured by the surrounding circumstances, to provide such instrumentalities as will be reasonably safe and suitable, (citations omitted)

Green further illustrates how the contrac-tee such as Green or Gulf Power may satisfy its undertaken duty “to provide such instrumentalities as will be reasonably safe and suitable” for use by affected employees. The Court reversed Sansom’s judgment against Green, holding that the rope selected by Sansom from among those supplied by Green was apparently sound, containing no discoverable defect when supplied, but that such ropes rotted after long use. Judging the conduct of Green as of the time he initially supplied the rope, the Court found no negligence. The decision thus suggests that a contractee may be liable for negligently supplying his contractor’s employee an unfit tool or machine, but not liable for failure to monitor its continued suitability while in the use and control of the independent contractor’s employees. This rule is in accord with authorities reasoning that a contractee supplying machinery to an independent contractor has, under such an arrangement, no effective control over its maintenance and repair.

This record contains no comparable showing that Gulf Power simply bought and furnished the forklift boom assembly to Foster-Wheeler, surrendering with the machine all power to control what, when, how and by whom repairs to the machine were to be made. Gulf Power’s answers to interrogatories revealed that in purchasing the machine Gulf Power required the manufacturer to modify the boom to receive the forks, and that Gulf Power later contracted with Randolph Yale Industrial Truck Company to replace and repair various components of the forklift. Gulf Power’s plant manager Lee testified that “we performed some electrical maintenance on the forklift, Gulf Power did,” and Foster-Wheeler’s superintendent Miller testified that Gulf Power had and exercised control by authorizing repairs and specifying who should make them:

A. We have sent the forklift out and had it repaired before.
Q. Foster-Wheeler did this?
A. Well, no sir. Gulf Power was the one that paid for having it repaired. The forklift belongs to them.
Q. Did you get some sort of authorization before sending it out?
A. Yes. Well, they generally send it out theirselves when it has to be repaired.

And before Foster-Wheeler made the repairs that covered up the manufacturer’s warning decal, Mr. Miller testified, he checked first with Gulf Power’s manager:

Q. All right. Did you have Gulf Power’s authorization to repair- this thing or did you just go ahead and repair it?
A. We just went ahead and repaired it, I presume. I did talk to them about it and he asked me if we could fix it and I told him yes, so we went ahead and fixed it. Anything like this, I always talk over with Mr. Lee out there.

Far from showing adequately for summary judgment that Gulf Power relinquished to its contractor the power to decide by whom and how Gulf Power equipment should be repaired, this record suggests the basis for a contrary jury finding: that Gulf Power, choosing to own the machines required for its regular plant maintenance by a contractor who used those machines for that purpose and no other, saw to their repair in one way or another — sometimes sending machines out for repair, sometimes allowing Foster-Wheeler to repair, but always retaining and being understood as retaining power to decide all significant questions pertaining to the repair of its equipment. Thus did Gulf Power penetrate and occupy some of the realm of its putative independent contractor. Having thus retained significant control over Foster-Wheeler’s employees in the activity that contributed (so a jury might find) to Padilla’s injury, Gulf Power’s responsibility for the negligence of those employees is the same as if Gulf Power’s own employees had obliterated the warning decal, or if Gulf Power sent the machine out to an independent welder who obliterated the warning decal, in consequence that Gulf Power, furnishing the machine anew to Foster-Wheeler’s employees, negligently failed “to provide such instrumentalities as will be safe and suitable” for their use. Green, supra.

A contractee’s true relinquishment of power to control the details of his contractor’s work is not to be mistaken for its counterfeit, a contractee’s negligent failure to exercise his retained power to control. Several evidentiary factors converge to present a jury question on this issue: Gulf Power’s purchase and adaptation of the machine to do its particular maintenance; Gulf Power’s need for the maintenance, and for the machine, in its regular business of operating the plant from day to day; the machine’s exclusive use for that purpose by a contractor’s employees who went daily to work at Gulf Power’s premises to maintain Gulf Power’s plant with Gulf Power’s equipment; and Gulf Power’s retention of the power to control the repair of its equipment. The last mentioned element is the indispensable one; the preceding list both points to and derives its significance from Gulf Power’s retention of the power to control. See F. Harper and F. James, Law of Torts, § 26.11:

If we are looking for risks fairly alloca-ble to an enterprise then there is much significance in the question “whether or not the work is a part of the regular business of the employer.” The real question in all independent contractor cases is whether a man may “farm out” or “lop off” some of his affairs and escape liabilities in connection with them. No general policy forbids this. .. .
Now this privilege to farm out has its limits, . . . but within those limits the primary question is whether the task which caused the injury was actually and in good faith farmed out to another.. . . As a generalization it may be said that an employer has farmed out or turned over a task to another where he has relinquished control over it.

We do not proceed on the idea that Gulf Power, owner and contractee of maintenance work requiring the operation of a forklift crane assembly, is liable to Padilla for any negligence of another Foster-Wheeler employee in performing that inherently dangerous work. If that were the case, the negligence of Foster-Wheeler’s employee who operated and overloaded the extended boom, without semblance of participation by Gulf Power, would be more obviously significant than the antecedent negligence of Foster-Wheeler’s employee who, acting as well for Gulf Power (so we posit on this record), negligently covered up the weight warning decal mounted on the machine. This case is not so simply resolved, because Florida Power and Light Co. v. Price, 170 So.2d 293 (Fla.1964), held that the owner of premises requiring inherently dangerous maintenance work — there, construction of an electrical distribution system — is not liable through respondeat superior to the injured employee of the independent contractor who negligently performed the work. The Court held, 170 So.2d at 297:

We do not believe the law respecting dangerous instrumentalities or inherently dangerous work ipso facto renders defendant [FP&L] liable under the particular circumstances of this case.

The Court thus reaffirmed that the owner/contractee has nondelegable duties “to third party members of the public” in contracting for the performance of inherently dangerous work and the operation of dangerous instrumentalities, see also General Portland Land Development Co. v. Stevens, 395 So.2d 1296 (Fla. 4th DCA 1981); but the Court declined to apply that doctrine against the owner/contractee in favor of the independent contractor’s employee who was injured as the result of fellow servant negligence in performing the work. The owner/contractee is not liable, said the Court,

. . . absent any allegation or showing of an act of negligence or omission of duty or proper care on the part of [the owner/contractee] .... [170 So.2d at 298]

We intend no contradiction of or lack of deference to Price. Fully acknowledging the authority of that decision, we simply recognize that Price is predicated on a factual premise that in the nature of things is subject to dispute, is disputed here, and must be established without dispute if a summary judgment is to be sustained on the principle that the owner/contractee of inherently dangerous work is not “ipso fac-to” liable to an independent contractor’s employee injured by a negligent fellow employee. The factual premise of that principle is that in the activity causing the injury the putative independent contractor was truly that, which is to say, he acted and was empowered to act independently of the owner/contractee under the contractual arrangement between them. Price expressed that factual premise this way, 170 So.2d at 298:

The independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies ....

Our judgment, as we have said, is that there exists a genuine factual dispute over whether Gulf Power, ceding Foster-Wheeler independence of judgment in the detailed performance of the required maintenance, ceded also the same measure of independence in the matter of repairing Gulf Power’s maintenance equipment. Given the test for determining the existence of an independent contract relationship, text at note 2 supra, and the realities of a permanent business relationship such as exists in this case, it is not at all impossible to conceive that Foster-Wheeler’s employees were in certain functions independent of control by Gulf Power and in others directly responsive as veritable agents. The relationship between contracting parties in regard to the activity complained of is to be determined by the contract and by the parties’ operations in fact under the contract; inquiry cannot be shut off by simple interposition of the term “independent contractor.” We are much persuaded by the reasoning of Toomey v. Donovan, 158 Mass. 232, 236-37, 33 N.E. 396, 398 (1893), in which the Massachusetts Supreme Judicial Court found a jury issue on the question of whether Toomey, clearly an independent contractor in operating a stock fitting room in the owners’ factory, acted instead as their agent in keeping the stock-fitting machines in safe repair, thus making the owners vicariously liable for his negligence:

[Tjhere was evidence which would have warranted the jury in finding that Too-mey was intrusted by the [owners] with the duty of seeing that the machine was in proper condition. The fact that he also occupied towards them the relation of a contractor would not relieve the [owners] from liability for his negligence in seeing that the machine was in proper condition. One person may sustain different relations to another, as well as different relations to different persons.

Because unresolved factual issues precluded entry of the summary judgment, the judgment is

REVERSED.

SHAW, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

I would affirm the judgment below.

The complaint alleges negligence on the part of Gulf Power Company in: (1) failing to maintain the boom in good condition; (2) improperly modifying the boom; (3) failing to test the boom for load capacity; and (4) failing to label the boom as to load capacity. All of the foregoing alleged negligent acts were those of Foster Wheeler, Inc., an independent contractor. Under the law of Florida, Gulf Power is not vicariously liable to Foster Wheeler’s employee for the negligence of Foster Wheeler. Florida Power and Light Company v. Price, 170 So.2d 293 (Fla.1964).

Nor is there a basis for holding Gulf Power directly liable to the employee of Foster Wheeler for actual negligence. The complaint does not allege that the forklift and boom, as purchased by Gulf Power and turned over to Foster Wheeler several years before the accident, were defective. The complaint does not allege that Gulf Power had a duty to furnish and maintain equipment fit and suitable for the particular work in progress or that Gulf Power undertook to supervise the use of the forklift or boom. The evidence on motion for summary judgment failed to show actual negligence on the part of Gulf Power.

The boom in question was only one piece of lifting equipment available at the job site. Other equipment capable of lifting various weights up to 30 tons was also available. It is uncontradicted that Foster Wheeler knew the limitations on the boom used in its extended position and knew that the boom was capable of lifting heavier loads if the forklift was driven closer to the object to be lifted so that the extension portion of the boom remained inside the modified “sleeve.” Since Foster Wheeler’s knowledge of the dangers of overloading was equal, if not superior, to that of the owner, the duty to warn was not breached. The owner/contractee does not have a duty to warn the employees of the independent contractor where the contractor’s supervisory personnel are aware of the danger.

At the time of the accident, Foster Wheeler’s personnel made the decision to lift a motor weighing approximately 3,000 pounds with the boom extended and to have a man (plaintiff) manually remove the shims beneath the motor while the motor was thus suspended. The motor could have been safely lifted either with the boom extension inside the sleeve or by using the prongs of the forklift itself without the boom. However, extra time and effort by the Foster Wheeler crew would have been required to remove objects blocking the way which prevented the forklift from being driven close enough to lift the motor without the boom extension. The decision to use the boom extension, rather than to clear away the objects blocking the pathway to the motor, was made by Foster Wheeler without the knowledge or participation of Gulf Power.

The break in the boom occurred in the extensible portion near, or approximately at, the same spot as the prior break, which had been welded back together by Foster Wheeler’s millwrights. There was testimony of modification or “beefing up” of the stationary part of the boom and that a new boom extension had been purchased. At the time of the accident, however, the stationary portion did not fail, and the new boom was not in use. The boom modifications were not a factor in the accident.

The controlling law is stated by the Florida Supreme Court in Florida Power and Light Company v. Price, supra, which dismissed the complaint of the employee of an independent contractor in a suit for personal injuries against the owner/contractee. Plaintiff, the employee of Harlen Electric Company, independent contractor, was working on a power pole when a co-employee allowed a “jumper” wire to come close enough to cause an electrical arc which energized the wire on plaintiff’s pole, causing his injuries. The Complaint in that case alleged actual negligence on the part of the owner/contractee in failing to supervise the work, failing to insulate wires and de-energize terminal points, failing to insulate certain switches on the wires on plaintiff’s pole, and failing to provide a safe place to work. The complaint also alleged vicarious liability for the negligence of the independent contractor under the dangerous instrumentality and the inherently dangerous work doctrines. The District Court held that the allegations of actual negligence were insufficient but that a cause of action was stated based on vicarious liability under the dangerous instrumentality and the inherently dangerous work doctrines.

The Florida Supreme Court in Price, supra, held that the owner is not vicariously liable to the employees of the independent contractor for the negligence of the contractor. The Supreme Court ruled that neither respondeat superior, the dangerous instrumentality or dangerous work doctrines were applicable to make an owner/contrac-tee vicariously liable for the negligence of the independent contractor in a suit by the employees of the contractor. The Supreme Court expressly disapproved the District Court’s holding that the owner/contractee owed the same duty to the employees of the independent contractor as to third parties. Concerning the basis for the rule precluding the owner’s liability for the contractor’s negligence, the court held (170 So.2d at 298):

The independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies and is aware or presumed to be aware of the usual hazards incident to the performance of his contract. Unless and until it is shown the contracting owner by positive act of negligence or negligent omission on his part causes injury to the independent contractor or to the latter’s employee or employees, such owner will not be held liable. The employees of the independent contractor do not become the employees of the contracting owner within the contemplation of Chapter 769 F.S., nor are they under his direction and control. Their negligent acts do not become his responsibility under the doctrine respondeat superior. Thus it may be said the exception to the doctrines grows out of the relationship created by the independent contract and the assumption of risks that are necessarily concomitant. Such an exception would not be applicable where members of the general public are injured since they are not embraced in the relationship created by the independent contract.

The Price case, supra, remains the law, and there is no case in this state imposing the duty on the owner sought to be imposed here. In the absence of a special undertaking not alleged or shown in the instant case, the owner does not have a duty to continually maintain a chattel furnished, to supervise its use, or to ensure the safety of those using it. The duty of the owner is not that of a manufacturer and clearly can be no greater than that of one who leases a chattel for use in the business of another or one who leaves his automobile with an independent contractor for repair. In both cases, the lessor/bailor, even of a dangerous instrumentality, is not liable to the employee of the lessee/bailee due to the negligent use of the chattel by a co-employee. Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla.2d DCA 1963); Petitte v. Welch, 167 So.2d 20 (Fla.3d DCA 1964); Iglesia v. Floran, 394 So.2d 994 (Fla.1981); Zenchak v. Ryder Truck Rentals, 150 So.2d 727, 728 (Fla.3d DCA 1963), cert discharged, 164 So.2d 200 (Fla.1964). A chattel which is leased to one for use in his business or is turned over to a repairman is under the control of the lessee or repairman. Under those circumstances and in the instant case, there is no liability on the part of the owner to the employees of the independent contractor who are injured due to the negligence of the contractor.

The majority rule is well stated in a number of federal decisions: Cady v. E. I. DuPont de Nemours and Company, 437 F.Supp. 1030 (D.C.Tex.1977), affirmed, 618 F.2d 782 (5th Cir. 1980); Lowe v. United States, 466 F.Supp. 895 (M.D.Fla.1979), affirmed, 611 F.2d 76 (5th Cir. 1980); and Gulf Oil Corporation v. Bivins, 276 F.2d 753 (5th Cir. 1960).

In Cady v. E. I. DuPont, etc., supra, the court granted a directed verdict in favor of the owner of a structure in a suit by an employee of an independent contractor. In that case, the owner both designed and supplied the engineering specifications to the independent contractor who did the construction. During the course of the construction, the independent contractor altered the specifications for the setting of the steel columns, and this resulted in the tilting of a column, causing injuries to an employee of the contractor. Plaintiff proved that DuPont had general supervisory responsibility over the structure and knew of the altered specifications. The Federal Court held, however, that DuPont did not know the independent contractor would fail to supply the additional support for the column during construction that would have made the altered procedures safe, holding (437 F.Supp. at 1033):

There is no evidence that DuPont [owner] knew or should have known that Zackary [independent contractor] would not use independent support during construction. . . . DuPont has a right to expect that Zackary will perform its responsibilities in a safe and workmanlike manner and take proper care to assure the safety of its employees. The instability without guy wires or the “cherry picker” is, according to the undisputed testimony, as readily apparent to Zackary and its engineers as to DuPont and its engineers. (emphasis supplied)

In the Cady case, supra, plaintiff contended the owner’s knowledge of the alteration, coupled with the owner’s failure to object or to waive specifications “created a hazardous condition.” The court rejected this basis for liability, holding (437 F.Supp. at 1034):

The foundation of any duty to warn is in a determination of which party is in the best position to be aware of the risk and issue the warning, [citations omitted] Under circumstances where the danger is not open and obvious and is not known to the invitee, a duty to warn is imposed on the owner-occupier. However, the facts presented by the plaintiff do not create such a duty. It is undisputed that the invitee H. B. Zackary created the dangerous condition either by not following the specifications or by failing to use independent means of support for column C-3 during erection....
The construction . .. and the manner in which DuPont’s design was implemented was under the direct supervision and control of Zackary. The danger having arisen out of that construction, the duty to warn the plaintiff is that of his employer and not that of the owner-occupier. [citations omitted]

In the Cady case, supra, the owner supplied non-defective engineering specifications to the contractor, who then altered those specifications with the knowledge of the owner. The alteration created a hazard only if the contractor failed to take certain precautions in performing the work. Here, the owner supplied a piece of nondefective equipment to be used by the contractor. The contractor broke the equipment, welded it back, and, in the course of the repair, covered the weight limit sticker. Neither the repairs nor the covering of the weight limit sticker created a hazard so long as the contractor knew the weight limitations and took precautions not to exceed the capacity of the equipment. To paraphrase the holding of Cady, supra, the owner “has a right to expect” that the independent contractor “will perform its responsibilities in a safe and workmanlike manner and take care to assure the safety of its employees.” In both cases, the contractor created a condition which subsequently caused the accident.

In Lowe v. United States, supra, the Federal Court, applying Florida law, held the owner not liable to the employee of the independent contractor who fell on defective steps erected on the owner’s premises by the independent contractor. In that case, the contract gave the owner the right to conduct safety inspections. The court held (466 F.Supp. at 898-899):

The court perceives no absolute duty on the part of the defendant to provide a safe place for the plaintiff to work. Plaintiff was not the defendant’s employee. Had plaintiff been an employee of the defendant, then the government could have purchased workmen’s compensation insurance to protect itself against the plaintiff’s claim for the job injuries.
Even though under the contract between the government and the plaintiff’s employer the government had a right to conduct safety inspections, this did not constitute an undertaking by the government to prevent all accidents that might occur due to the independent contractor’s negligence. The defendant government may not be held liable merely because it gained knowledge of a dangerous condition on the job site, yet failed to affirmatively rectify it.

On appeal in the Lowe case, the United States Court of Appeal, Fifth Circuit, affirmed, citing Lake Parker Mall, Inc. v. Carson and Florida Power and Light Co. v. Robinson, supra, for the rule that the duty of the landowner to warn of a dangerous condition is satisfied by notice to the independent contractor and that the owner “may not be held liable just because it retains the right to require adherence to safety regulations.”

In view of the foregoing authorities, I respectfully dissent from reversal of the judgment below.

      . E. g., Trail Builders Supply Co. v. Reagan, 235 So.2d 482 (Fla.1970) (employer/owner who removed safety bar from truss roll press liable for . indemnity to manufacturer sued by injured employee); Fort Lauderdale Country Club, Inc. v. Winnemore, 189 So.2d 222 (Fla. 4th DCA 1966) (golf club found negligent in supplying injured golfer cart after removing manufacturer’s rubber cover from brake pedal); Smith v. Hobart Mfg. Co., 302 F.2d 570 (3d Cir. 1962) (employer’s negligent removal of handguard on meat grinder held superseding cause of employee’s injury, barring manufacturer’s liability).

      . E. g., Cawthon v. Phillips Petroleum Co., 124 So.2d 517 (Fla.2d DCA 1960); Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (Fla.1927).

      . See, e. g., 57 C.J.S. Master and Servant § 604 at p. 377 (1948):
      [I]t has generally been held that if reasonably safe appliances are furnished, and they afterward become defective, the contractee is not liable unless the contract requires continued supervision of the appliances and the keeping of them in repair, in which event a breach of duty by the contractee will render him liable for injury to the contractor’s servant resulting therefrom.
      Among the decisions cited by the Corpus Juris Secundum are Kiser v. Suppe, 133 Mo.App. 19, 29, 112 S.W. 1005, 1009 (1908), (exonerating the mineowner who provided a cable to his independent contractor who then failed to “keep it safe,” resulting in an employee’s injury: “Without any right to inspect and repair [the cable] it would be most unjust to call him [the mineowner] to account for the neglect of the contractor to perform that duty.”); Toomey v. Donovan, 158 Mass. 232, 33 N.E. 396 (1893) (holding there was a jury question of whether the defendant owner of the supplied machines “engaged with Toomey [the contractor] to keep them in repair for use by his workmen” and agreed in that manner to “keep them in repair,” so exposing the owner to liability for neglect to repair.); Moore v. Rawls, 196 N.C. 125, 144 S.E. 552 (1928) (holding that the defendant/owner, furnishing a log skidding machine for the contractor’s use in logging operations on the owner’s property, had a duty to use reasonable care in furnishing equipment that it should be safe and suitable, and “to keep such appliances in safe condition,” and finding no neglect of duty); and Johnson v. Spear, 76 Mich. 139, 42 N.W. 1092 (1889) (holding that the defendant dock owner, not the independent contractor unloading coal at the dock, retained responsibility for repairs of chains for a hoisting appliance and was thus liable to the contractor’s servant for injury caused by a defective chain.)

      . See generally 5 Am.Jur. Proof of Facts 2d, Employers’ Retention of Control over Independent Contractor, § 18 at 251 (1975).

      . That the negligence of the repairer of the forklift may have been less a causative factor than the negligence of the operator is inconsequential for summary judgment purposes. Compare Hethcoat v. Chevron Oil Co., 364 So.2d 1243, 1245 (Fla. 1st DCA 1978) (concurring and dissenting opinion), rev’d, 380 So.2d 1035 (Fla.1980), on remand, 383 So.2d 931 (Fla. 1st DCA 1980).

      . Compare Tillery v. Standard Sand & Silica Co., 226 So.2d 842 (Fla.2d DCA 1969), where owner supplied a latently defective welding machine to an employee of an independent contractor to weld something located high above floor level without warning that, as owner knew, the machine had previously shocked those using it.

      . Superior knowledge of the owner/contractee is basis of his duty to warn: Rist v. Florida Power & Light Company, 254 So.2d 540 (Fla.1971); Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979); Wendland v. Akers, 356 So.2d 368 (Fla. 4th DCA 1978), cert. denied, 378 So.2d 342 (Fla.1979); Ayala v. J. M. Fields, 390 So.2d 166 (Fla. 5th DCA 1980).

        . Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla.2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977); Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla.1953). Compare, Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229 (2d Cir. 1973), where owner’s knowledge of danger was found to be superior.

      . Price v. Florida Power and Light Co., 159 So.2d 654 (Fla.2d DCA 1963).

      . The power company was owner of the poles and wires where the work was being performed as well as the dangerous instrumentality, electricity, which caused the plaintiff’s injuries.

      . Florida Power and Light Co. v. Price, 170 So.2d 293, 297 (Fla.1964):
      [T]he duties which a contractee owes to employees of the independent contractor are less than those owing to third persons; and consequently his liability to such employees is not as extensive as his liability to third persons, that is, the act may be such as to render the contractee liable to third persons although it would not make him liable to a servant of the contractor. [57 C.J.S. Master and Servant § 600]

        Compare, Maldonado v. Jack M. Berry Grove Corporation, 351 So.2d 967 (Fla.1977), third parties (minor children of employees) injured on owner/contractee’s premises.

      . Texas, like Florida, follows the rule of Storm v. New York Telephone Co., 270 N.Y. 103, 200 N.E. 659, as is well stated in Gulf Oil Corporation v. Bivins, 276 F.2d at 758:
      We are persuaded by both precedent and principle that the owner or occupier of particular property has a duty to warn the employees of an independent contractor who has undertaken to do work on the property, of dangers that are hidden on or inhere in that property, and that this duty is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger.

      . Accord, Horton v. Gulf Power, 401 So.2d 1384 (Fla. 1st DCA 1981).


author: BOOTH, Judge. ROBERT P. SMITH, Jr., Chief Judge,

text:
    John HORTON and Angela Horton; Joe H. Gilley and Betty Gilley, Appellants, v. GULF POWER COMPANY, Appellee.
    Nos. SS-191, SS-192.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Norton Bond, Pensacola, for appellants.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from final summary judgment entered in favor of Gulf Power, appellee, in a suit for personal injuries sustained by Horton and Gil-ley, employees of Foster Wheeler, an independent contractor. The accident occurred on the premises of Gulf Power when a scaffold owned by Gulf Power fell. Foster Wheeler was using Gulf Power’s scaffold in connection with its repair and maintenance work on a unit of the Gulf Power Generating Plant. Foster Wheeler had built the unit in question and regularly performed repair and maintenance service on the unit for Gulf Power. Gulf Power purchased the scaffold new and turned it over to Foster Wheeler. Foster Wheeler was responsible for assembling and testing the scaffold and knew that the load limit was two men. There were sticker markings on the scaffold stating the load limit. At the time of the accident there were six men, employees of Foster Wheeler, on the scaffold.

Foster Wheeler’s foreman testified he had modified the scaffold to make it support more weight by having a device referred to as a “come-along” attached to the center of the scaffold which could be secured at each elevation where work was being done. At the time of the accident, however, the come-along was not in use. Further testimony was that Foster Wheeler’s employees had damaged the scaffold bolts by over tightening, requiring that the bolts be replaced, and that there was a “home-made” piece welded at one end of the scaffold where it was fastened to the scaffold motor and air coil. The accident occurred when the two bolts in the homemade piece sheered off, causing the scaffold end to fall away from the motor.

Suit was filed against Gulf Power and the scaffold manufacturer, Spider Staging. As to the latter, the trial court denied summary judgment. Summary judgment was entered in favor of Gulf Power, the trial court holding:

Since Gulf Power Company furnished the scaffold, it had a duty to use reasonable care for the safety of the independent contractor’s employees, but this duty was discharged by full and adequate warning to the independent contractor’s superintendent. It had no duty to seek out and give individual warning to each employee of Foster Wheeler. It had no way of knowing which employees would be working on the scaffold, and it is common business practice to deal only with supervisory personnel when repair work is performed by independent contractors. It is generally held that the duty to warn employees of an independent contractor is satisfied by notice to the contractor or supervisory personnel. See Fla. Power and Light Co. v. Robinson, 68 So.2d 406 (Fla. 1953), which cited with approval Storm v. New York Tel. Co., 270 N.Y. 103, 200 N.E. 659. The reasons for this rule are clearly set forth in the Storm case. This was also recognized as being the law of Florida in Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla.2d DCA 1976).

We agree with the trial court’s statement of the law and determination that summary judgment be granted.

The duty of Gulf Power, as owner of the premises and of the scaffold, was to use reasonable care for the safety of the employees of the independent contractor, by giving notice of a dangerous condition known to the owner but unknown to the independent contractor and its employees. In Florida Power and Light Company v. Robinson, 68 So.2d 406, 411 (Fla. 1953), the Florida Supreme Court held that the owner’s duty to warn is discharged by notice given to the supervisory personnel of the independent contractor, holding:

The case of Storm v. New York Telephone Co., 270 N.Y. 103, 200 N.E. 659, 661, is an excellent illustration of the application of the rule as to the duty of the owner of property to warn of danger . . . The telephone company was held to have fulfilled its “duty * * * to use reasonable care to give warning” upon a showing that it had notified plaintiff’s foreman [foreman of independent contractor] “to be sure to pike or rope the poles * * * because we know and you know that those poles are not sound. . . . ”

In the Robinson case, the Florida Supreme Court ruled in favor of an employee of an independent contractor in his suit against the owner of the electric poles which were being repaired at the time of the accident. The basis for the holding in that case was the failure of the owner of the poles, who had knowledge of latent defects in certain poles that were to be climbed by the employees of the contractor, to give notice of those defects. The Florida Supreme Court contrasted the facts of the Storm case, supra, finding that, in the case before it, “the Power Company negligently failed to notify the independent contractor of the condition of Pole 35-L — 7.” 68 So.2d at 413.

In Storm v. New York Telephone Company, supra, the court held that the duty of the telephone company to warn of unsafe conditions of telephone poles was satisfied by the notification of supervisory officials of the independent contractor engaged in repairing the poles. The court expressly rejected the contention that the telephone company, as owner of the poles, had the duty to warn every employee of the lighting company or that placards should have been placed on the poles so that they would be visible to lineman about to climb the pole. In rejecting these contentions, the court held (200 N.E. at 661 — 662):

Warning of danger was thus given to all men in charge of the work and to all supervisory officials of the decedent. . . . To require the defendant to bring notice home to every employee of the lighting company who might possibly be involved on this job on penalty of otherwise failing in duty would result in imposing a standard of duty exceeding reasonable bounds. . . . [T]he employee has placed himself in a relationship whereby it may be reasonably assumed that notice to his supervisory officials will be communicated in the ordinary course to all employees on the work.

In Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.2d DCA 1976), cert. denied, 344 So.2d 323 (Fla. 1977), both the property owner and the independent contractor had knowledge of a defective main disconnect switch, but the employee of the independent contractor injured as a result of that defect was not warned. The opinion states the following rule (327 So.2d at 123, 125):

One who hires an independent contractor is not ordinarily liable for injuries sustained by that contractor’s employees in their work.... There is a duty to warn employees of a independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition of his premises. . . . However, it is generally held that the duty is satisfied by notice to the contractor or supervisory personnel, [citations omitted]
It is inconceivable to us that the Mall [owner] should then become liable to the employees of the very expert contractor it relied upon when the contractor had been completely aware of the dangerous condition but nevertheless elected to proceed.

The evidence here was that the supervisory personnel of the independent contractor who were in control of the scaffold and the operations being performed were aware of the load limitations and the danger of overloading the scaffold and that their knowledge was equal, if not superior to that of the owner. Nor is the owner vicariously liable to the contractor’s employee under the dangerous or hazardous work doctrine for the negligence of the contractor and its employees. This case is to be distinguished from suits by third parties (non-employees) injured by dangerous conditions created on the premises by the contractor for which the owner may be held liable.

A party moving for summary judgment must meet the requirements of Rule 1.510(c), Fla.R.Civ.P., by showing unequivocally that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. In the instant case, the rule of Storm v. New York Telephone Company, supra, adopted in Florida in Florida Power & Light Company v. Robinson, supra, and Lake Parker Mall, Inc. v. Carson, supra, establishes the duty of the owner/contrac-tee to the employees of the independent contractor. The record before the lower court on motion for summary judgment fails to show any basis on which a jury could find a breach of that duty.

Accordingly, the judgment below is affirmed.

WOODIE A. LILES (Retired), Associate Judge, concurs.

ROBERT P. SMITH, Jr., C. J., specially concurs with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

concurring:

I agree that the trial court properly granted Gulf Power summary judgment in this ease, but I should prefer not to adopt its rationale that Gulf Power

had a duty to use reasonable care for the safety of the independent contractor’s employees, but this duty was discharged by full and adequate warning to the independent contractor’s superintendent.

A summary judgment finding that Gulf Power gave “full and adequate warning to [Foster-Wheeler’s] superintendent” is made problematic by conflicting record evidence: ironically, Foster-Wheeler’s superintendent says Gulf Power’s manager, Mr. Lee, warned him about overloading the scaffold, but Lee denies having done so.

Because the majority finds that Foster-Wheeler’s superintendent knew this scaffold had weight limitations and could fail if overloaded, and that his knowledge rendered Gulf Power’s verbal warning unnecessary, both the possible conflict in the evidence and the warning theory itself — that the contractee as supplier of the scaffold had a duty to warn the contractor’s supervisory personnel about overloading it — may become inconsequential. But to the extent this reasoning may imply either that Gulf Power had a duty to warn if (incredibly) Foster-Wheeler’s supervisory personnel were ignorant of overloading dangers, or that an owner/contractee supplying a defective tool discharges his duty to the contractor’s employees by giving “full and adequate warning” of its defects to the contractor’s supervisors (or by proving their equivalent knowledge), I disagree with those implications and suggest that concepts deriving from a duty to warn do not control Gulf Power’s liability or nonliability in this case.

Gulf Power is entitled to summary judgment simply because there is no evidence of any act or omission on its part that arguably was negligent. The scaffold Gulf Power supplied to Foster-Wheeler was perfectly sound in all respects. It bore legible decals stating its weight bearing limitations. The only danger pertinent to this case, associated with the scaffold, was a danger arising in the natural course of the work undertaken by Foster-Wheeler, the independent contractor: the danger of loading the scaffold, safe and suitable in itself, with too many men. In such a case, no defect in the scaffold can be blamed. In such a case, the contractee is no more required to warn the contractor and his employees, hired to perform the work that produced the danger at the place where it came to pass, than a householder is required to warn employees of his roofing contractor about the height of the roof and the dangers of falling. Florida Power & Light Co. v. Robinson, 68 So.2d 406, 412 (Fla. 1953):

[T]he rule requiring warning of danger does not require warning as to any dangers, latent or otherwise, arising in the course of the work being done, where the work itself makes the place and creates the danger — compare Mullin v. Genesee County Electric Light, Power & Gas Co., 202 N.Y. 275, 95 N.E. 689 ....

In this case, as in Mullin “the work itself makes the [work] place and creates the danger,” and the owner/contractee’s nonlia-bility to the contractor’s employees depends neither on his having given a verbal warning nor on the extent of equivalent actual knowledge had by the contractor’s supervisor.

This case is to be distinguished from Padilla v. Gulf Power Co., 401 So.2d 1375 (Fla. 1st DCA 1981), in which the record evidence did not foreclose Gulf Power’s possible liability for negligence, independent or vicarious, in supplying a potentially dangerous machine that was repaired in a way obliterating the manufacturer’s warning plate affixed to the machine.

I therefore concur in affirming the summary judgment.

      . Superior knowledge of the owner/contractee is basis of his duty to warn: Rist v. Florida Power and Light Company, 254 So.2d 540 (Fla. 1971); Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979); Wendland v. Akers, 356 So.2d 368 (Fla. 4th DCA 1978), cert. denied, 378 So.2d 342 (Fla. 1979); Ayala v. J. M. Fields, 390 So.2d 166 (Fla. 5th DCA 1980).

      . Florida Power and Light Company v. Price, 170 So.2d 293, 297-298 (Fla. 1964); Christy v. Florida Power Corporation, 232 So.2d 744, 745 (Fla. 1st DCA 1970), cert. dismissed, 243 So.2d 158 (Fla. 1971).

        . Florida Power and Light Company v. Price, 170 So.2d 293, 295-296 (Fla. 1964); Christy v. Florida Power Corporation, supra, Lowe v. U.S., 466 F.Supp. 895, 898, 899 (D.C. Fla. 1979), affirmed, 611 F.2d 76 (CA 5th 1980); compare, Maldonado v. Jack M. Berry Grove Corporation, 351 So.2d 967 (Fla. 1977), minor children of employees injured on owner/contractee’s premises; see Peairs v. Florida Publishing Company, 132 So.2d 561, 566 (Fla. 1st DCA 1961); Mauie Industries, Inc. v. Messana, 62 So.2d 737 (Fla. 1953).

        Mullin v. Genesee County Electric Light, Power and Gas Co., 202 N.Y. 275, 279, 95 N.E. 689, 690 (1911), was a common law claim by an injured lineman against his employer for failure “to furnish him a reasonably safe place in which to work,” which the Florida Supreme Court in Robinson correlated with the duty to warn of dangers. The New York court held:
      [T]he question is whether the general rule that it is the duty of the master to exercise reasonable care to provide a fairly safe working place for his servants, applies to a case like the one at bar. That rule does not apply “where the prosecution of the work itself makes the place and creates the danger.” . .. The reason for this exception to the general rule is that it would be manifestly absurd to hold a master to the duty of providing a safe place when the very work in which the servant is engaged makes it unsafe. If a man is engaged in tearing down a house he is constantly exposed to dangers of his own creation ....