HomeMy WebLinkAbout0582 cause of action. In this case, it is clear from the jury's
verdict that none of the Crossplaintiffs were vicariously or
technically liable because of Airquatic's negligence.
The question of whether there is constructive or de-
rivative liability for Airquatic's negligence presents a
difficult and close question. This is particularly so because
of the jury findings that the negligence of all three Cross-
plaintiffs was because they should have known of the defective
condition of the sand filter and not that these Crossplaintiffs
had actual knowledge of the defective condition of the sand
filter.
A property owner owes a duty to a business invitee to
maintain his premises in a reasonably safe condition and to
eliminate or warn the invitee of any dangerous condition of
which he knew or should have known. Schmidt v Bowl America
Florida, Inc., 358 Sold 1385 (4 DCA 1978). The landowner's
liability results from a violation of his own duty to exercise
reasonable care and thus, D ~ M was liable for its own negligence
and not because of the negligence of Airquatic.
In the Mims case, the Court stated:
~ Cyanamid's complaint did not allege that Mims
knew or should have known of the defective
condition of the equipment, which knowledge
could have the effect of making Mims' negli-
gence not secondary or passive, but primary
and active.
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Crossplaintiffs rely on the case of Goldberg v Straus,
45 Sold 883 (Fla 1950), and Britt's v LeBase, 258 Sold 811 (Fla.
1972) to contend that what you know and should have known is
constructive as distinguished from actual knowledge. Both of
~ these cases merely hold that as to an invitee as a social guest,
~ the landowner must have actual knowledge of the defect in order
to be liable and what you should have known is not sufficient
k knowledge to hold a landowner liable.
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s In Pender v Skillcraft Industries, Inc., 358 Sold 45
(4 DCA 1978), the Court found that a right to indemnity existed
because there was no evidence that the retailer knew or should
have known of the defect.
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B~ax332 PEE 581
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