DAMOORGIAN, J.
Appellants, Plaintiffs below, appeal the final judgment arising out of an order granting Appellees', Alan and Jill Miller's ("Millers"), motion for directed verdict. Appellants argue that the trial court erred in directing a verdict against them. We disagree and affirm.
This case arises out of a liquid propane gas explosion which occurred at the vacation home of the Millers. The explosion destroyed the Millers' residence and damaged several neighboring properties, including those owned by Joseph and Eva Gyongyosi and Arthur L. Carter. The Gyongyosis and Carter filed a complaint against multiple defendants, including the Millers, for damages sustained to their homes from the explosion. Lexington Insurance Company, as well as other insurance companies, also filed a complaint against multiple defendants including the Millers.
The evidence presented during Plaintiffs' case established that before the explosion, the Millers contracted Timothy Menzer to replace the floor tiles on the sun deck over their garage. Located below the concrete roof sun deck was a concealed gas line. This gas line was partially suspended from the garage ceiling by hangers, which were attached to the underside of the sun deck. Portions of the gas line were visible from the corners of the interior of the garage. There was no indication that any part of the gas line was located on top of the deck where Menzer was working. The Millers testified that they had no knowledge of the location or existence of the propane tank and no knowledge of the existence or location of the piping.
While working on the sun deck, Menzer used a chipping hammer to remove the existing floor tiles. The concrete roof deck was not damaged or penetrated during the process of removing the floor tile. Menzer did not come close to where the gas pipe was suspended. Sometime after Menzer finished removing the floor tile on the sun deck, an explosion occurred damaging the Millers' property as well as the
Plaintiffs presented two experts whose testimony supported the following explanation as to the cause of the explosion. Two of the five hangers, which were used to suspend the gas pipe from the garage ceiling (the underside of the sun deck), had detached from the ceiling, causing the gas pipe to sag. The sagging in turn caused additional tension on the system, initiating a fracture at an elbow joint of the piping system. This fracture allowed gas to leak. The leaking gas was likely ignited by a water heater pilot light located adjacent to the garage, resulting in the explosion. The cause of the hangers detaching was likely from vibrations created by Menzer's use of the chipping hammer above the garage.
In addition to the causation experts, Plaintiffs also presented the testimony of James McKay, a professional engineer and registered architect with experience in construction and demolition. His testimony related to certain safeguards promulgated by the National Fire Protection Association ("NFPA"), incorporated by the town's building codes. In particular, his testimony concerned NFPA 241 entitled "Standard for Safeguarding Construction, Alteration, and Demolition Operations."
In the presence of the jury, McKay was offered as an expert witness in the areas of standard of care of contractors performing alteration and demolition work. McKay was not allowed to testify concerning whether Menzer's work constituted demolition. However, he was allowed to testify that Menzer's work neither met the requirements of NFPA 241 nor met any reasonable standard of care for a contractor doing that type of work. McKay testified that before commencing the work, Menzer should have surveyed the area, both inside and adjacent to the work area, and identified potential hazards including utility lines. He also opined that the Millers failed to satisfy the requirements of NFPA 241.
At the close of the Plaintiffs' case, the Millers made multiple motions for directed verdict with respect to the vicarious liability and negligence counts. The trial court granted the Millers' motions and in an order concluded, as a matter of law, that the work performed by Menzer was not "demolition" under NFPA 241 and not an "ultra-hazardous activity." The court further
The standard of review applicable to a ruling on a motion for directed verdict is de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). "`When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Id. (quoting Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999)).
We first address whether the trial court erred in determining that the work performed by Menzer was not demolition as a matter of law. Our resolution of this issue necessarily requires us to decide whether Appellants' expert should have been permitted to testify that the work performed constituted a "demolition," making NFPA 241 applicable. Expert testimony may be presented in the form of an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue...." § 90.702, Fla. Stat. (2009). The admission of expert testimony has been allowed to explain the character of an object in order to determine if it complies with a statute, ordinance, or code. See Noa v. United Gas Pipeline Co., 305 So.2d 182 (Fla.1974) (allowing expert testimony regarding whether a spurline constituted a service line as defined in the relevant regulations); see also Chimeno v. Fontainebleau Hotel Corp., 251 So.2d 351 (Fla. 3d DCA 1971) (holding that expert testimony may be adduced to show the presence or absence of the elements which call a regulatory ordinance's application into play).
In Noa, upon which Appellants primarily rely, the trial court allowed expert witness testimony on the issue of whether a spurline was a "service line" as defined by the relevant statute. Noa, 305 So.2d at 183-84. The evidence was essential to the plaintiff's negligence claim against the defendant for failure to comply with the statute's requirement to odorize gas running through a service line. Id. There was conflicting expert testimony on the issue of whether the spurline constituted a "service line." Id. at 185-86. On appeal, the district court held that the expert should not have been permitted to testify as to the interpretation of a regulatory definition. Id. at 184. The Florida Supreme Court reversed the district court, holding that the issue of "whether the spurline leading from the main pipeline ... was a service line ... within the contemplation of the... regulations" was a factual question, which an expert engineer could properly testify about, and was "not readily answerable by the trial judge referring to the cold language of the regulations." Id. at 185. The Florida Supreme Court concluded that at the very least, the conflicting expert testimony as to the applicability of the regulations created a question of fact for the jury. Id. at 186.
Similarly, in Chimeno, plaintiff filed a negligence action against a hotel and elevator company for injuries sustained
This case is readily distinguishable from Noa and Chimeno. Here, McKay did not testify about the character of an object nor did he give testimony regarding disputed facts, which could determine the requirements of NFPA 241. Instead, Plaintiffs offered McKay's opinion that NFPA 241 applied to the work under contract in this case based on McKay's own definition of demolition. McKay's testimony was not necessary to determine whether removal of floor tile constituted demolition in order to apply NFPA 241 where demolition was not given a specific meaning in the regulation.
Instead, the question of what is meant by demolition in NFPA 241 is a question of law, subject to determination by the trial court. See Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) ("The determination of the meaning of a statute is a question of law and thus is subject to de novo review."); Edward J. Seibert, A.I.A., Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass'n, 573 So.2d 889, 891-92 (Fla. 2d DCA 1990) (holding that experts should not be allowed to testify concerning questions of law, and the interpretation of a building code presented a question of law); Devin v. City of Hollywood, 351 So.2d 1022, 1026 (Fla. 4th DCA 1976) ("We also hold that the trial court erred in relying upon expert testimony to determine the meaning of terms which were questions of law to be decided by the trial court."). Contrary to Appellants' position, the word demolition does not create any ambiguity requiring expert testimony to assist the trier of fact in applying the pertinent regulation because it is neither a technical term nor did the regulation provide a specific definition that was contrary to its ordinary meaning. Therefore, the trial court did not err in prohibiting an expert from defining the term demolition in NFPA 241 for the jury. See Lee County v. Barnett Banks, Inc., 711 So.2d 34, 34 (Fla. 2d DCA 1997) ("Statutory construction is a legal determination to be made by the trial judge, with the assistance of counsels' legal arguments, not by way of `expert opinion.'").
When a term is not defined, courts must look to its plain and ordinary meaning, which can be discerned from a dictionary. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 104 (Fla.2011). The American Heritage Dictionary defines demolition as "the act or process of wrecking or destroying, esp[ecially] destruction by explosives." American Heritage Dictionary 380 (2d Coll. ed. 1985). Although not defining demolition, Black's Law Dictionary defines the term "demolish" as "[t]o destroy totally or to commence the work of total destruction with the purpose of completing the same." Black's Law Dictionary 432 (6th ed. 1995). The act of removing floor tiles with a chipping hammer in a manner that does not affect the integrity of the structure—as was done here—cannot constitute demolition as contemplated by NFPA 241. Concluding otherwise would defy common sense. As such, we affirm the trial court's entry of a directed
Because we affirm the trial court's conclusion that the tile removal and replacement did not constitute demolition as the term is used in NFPA 241, we need not address whether Plaintiffs properly pled a claim for negligence based on a breach of the requirements of NFPA 241.
We next address whether the trial court erred in its determination, as a matter of law, that the removal and replacement of tile was not an ultrahazardous/inherently dangerous activity. Appellants argue that whether a particular activity is inherently dangerous is generally a question for the jury.
Florida courts allow for employers to be held vicariously liable for an independent contractor's negligence under the inherently dangerous activities doctrine. Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005). This doctrine provides that a party who "`employs an independent contractor to do work involving a special danger to others which the employer knows... to be inherent in or normal to the work ... is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.'" Id. (quoting Restatement (Second) of Torts § 427 (1965)). An activity is inherently dangerous if the "danger inheres in the performance of the work," such that "in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken." Fla. Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla.1964) (involving worker injured while working on wires charged with high voltage electricity). This doctrine includes activities where there is a recognizable and substantial danger inherent in the work, even though a major hazard is not involved. Id.
We hold that danger does not inhere in the removal of floor tiles from a roof deck. Tile removal is not of such a nature that in the ordinary course of events, its performance would probably, and not merely possibly, cause injury if proper precautions were not taken. This Court finds American Automobile Ass'n, Inc. v. Tehrani, 508 So.2d 365 (Fla. 1st DCA 1987), analogous to the case at bar. In Tehrani, the First District concluded that a jury should not have been permitted to consider whether operating a large wrecker was an inherently dangerous activity, and held that such activity was not inherently dangerous in the context of the case. Id. at 371. Similar to Tehrani, we hold that the trial court did not err in concluding, as a matter of law, that "in the context of this case," the activity of removing tile from a roof with a chipping hammer was not inherently dangerous. See id.
Finally, Appellants contend that the Millers had a common law duty to warn Menzer of the propane gas line existing below him, and that this issue should have been resolved by the jury. Thus, the trial court erred in directing a verdict on the direct negligence count based on its determination that the Millers had no duty to know the location or operation of the piping systems in their home. Appellants also allege that foreseeability in the context of proximate causation is a question of fact for the jury, and therefore, the trial court erred in ruling that "[t]he chain of events leading to Plaintiffs' damage was not foreseeable as a matter of law."
A cause of action based on negligence is comprised of four elements. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003). The first is a "duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks." Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 164-65 (5th ed., West 1984)). Whether a duty exists is a question of law for the court. Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). While the supreme court has identified four general sources from which a duty may arise, here, a duty must arise from the fourth category-general facts of the case. See Clay Elec. Coop., Inc., 873 So.2d at 1185.
The Florida Supreme Court has explained:
McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (internal citations omitted). In Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain
Under the facts of this case, if any foreseeable zone of risk was created by the Millers' conduct, it did not extend to cover the type of injury suffered by Plaintiffs in this instance—i.e., a massive liquid propane gas explosion which damaged their properties. As noted earlier, the Millers did not even know that the piping in the garage existed. Moreover, the sun deck where Menzer was working to remove the floor tile did not contain any piping. The trial court properly determined that the Millers had no duty to advise an independent contractor about gas piping, which they had no knowledge of due to the fact that it was concealed in the garage below. More importantly, in light of the scope of work that Menzer was to perform, it was not reasonable for the Millers to anticipate the damage that occurred as a result of floor tile removal. Cf. Morales v. Weil, 44 So.3d 173, 176 (Fla. 4th DCA 2010) (explaining that where a homeowner hires an independent contractor, he or she is not liable for injuries sustained by that contractor's employees in performing their work unless they actively participate in managing or performing the work). Because we conclude that there was no duty, we need not address the parties' arguments relating to proximate causation.
Affirmed.
CIKLIN and LEVINE, JJ., concur.