Conklin v. Cohen, 287 So. 2d 56 (Fla. 1973). · Go Syfert
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Conklin v. Cohen, 287 So. 2d 56 (Fla. 1973). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2008 · …engaged in acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee. at p. 60 ✓
cited 2× by 1 distinct case, last quoted 2009 · …has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed at p. 60 ✓
cited 2× by 1 distinct case, last quoted 2009 · …negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed. ✓
131 citation events (33 in the last 25 years) across 11 distinct courts.
Strongest positive: TEKI WILLIAMS v. JOHN WEAVER (fladistctapp, 2024-03-15)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) TEKI WILLIAMS v. JOHN WEAVER
Fla. Dist. Ct. App. · 2024 · confidence medium
Conklin v. Cohen, 287 So. 2d 56, 60 (Fla. 1973).
discussed Cited as authority (rule) Phillips v. Republic Financial Corp.
Fla. Dist. Ct. App. · 2015 · confidence medium
First, an “owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed.” Id. (quoting Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)).
cited Cited as authority (rule) Restoraton I of the Treasure Coast a/a/o Jay Dawley v. First Protective Insurance Company d/b/a Frontline Homeowners Insurance
Fla. Dist. Ct. App. · 2014 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).
discussed Cited as authority (rule) Strickland v. Timco Aviation Services, Inc.
Fla. Dist. Ct. App. · 2011 · confidence medium
Specific acts of negligence include “negligently creating or negligently approving the dangerous condition resulting in the injury ... to the contractor’s employee.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987) (citing Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)); accord Houk v. Monsanto Co., 609 So.2d 757, 759 (Fla. 1st DCA 1992).
discussed Cited as authority (rule) FABREGAS v. North Miami Bakeries, Inc. (2×)
Fla. Dist. Ct. App. · 2011 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).
discussed Cited as authority (rule) Morales v. Weil
Fla. Dist. Ct. App. · 2010 · confidence medium
An exception to the general rule exists if the owner has been “ ‘actively participating in the construction to the extent that he directly influences the manner in which the work is performed.’ ” Johnson, 985 So.2d at 595-96 (quoting Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)).
discussed Cited as authority (rule) WORTHINGTON COMMUNITIES, INC. v. Mejia (2×)
Fla. Dist. Ct. App. · 2009 · confidence medium
While an owner who hires an independent contractor is not generally liable for injuries sustained by that contractor's employees, an exception to this general rule exists when the owner "has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed" or has engaged in "acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee." Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973); see also Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593 , 595-96 (Fla…
discussed Cited as authority (rule) Johnson v. Boca Raton Community Hospital, Inc.
Fla. Dist. Ct. App. · 2008 · confidence medium
Exceptions to the general rule exist if the owner has been “actively participat ing in the construction to the extent that he directly influences the manner in which the work is performed” or has “engaged in acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee.” Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).
discussed Cited as authority (rule) Johnson v. BOCA RATON COMMUNITY HOSP., INC.
Fla. Dist. Ct. App. · 2008 · confidence medium
Exceptions to the general rule exist if the owner has been "actively participating *596 in the construction to the extent that he directly influences the manner in which the work is performed" or has "engaged in acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee." Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).
discussed Cited as authority (rule) Garrick v. Publix Super Markets, Inc.
Fla. Dist. Ct. App. · 2001 · confidence medium
In Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973), however, our supreme court held that there was an exception to this rule where the owner actively participates "to the extent that he directly influences the manner in which the work is performed" and negligently creates or allows a dangerous condition to exist resulting in injury to the employee of the independent contractor.
discussed Cited as authority (rule) Deen v. Quantum Resources, Inc.
Fla. · 1999 · confidence medium
Jones, 72 So.2d at 287 ; see also Ramos v. Univision Holdings, Inc., 655 So.2d 89, 90 (Fla.1995); Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587, 589 (Fla.1982); Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973); Smith v. Ussery, 261 So.2d 164, 165 (Fla.1972).
cited Cited as authority (rule) Cecile Resort, Ltd. v. Hokanson
Fla. Dist. Ct. App. · 1999 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973).
discussed Cited as authority (rule) Armenteros v. Baptist Hosp. of Miami
Fla. Dist. Ct. App. · 1998 · confidence medium
As the Supreme Court observed in Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973): the owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed.
discussed Cited as authority (rule) St. Lucie Harvesting v. Cervantes
Fla. Dist. Ct. App. · 1994 · confidence medium
In Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973), however, our supreme court *39 held that there was an exception to this rule where the owner actively participates "to the extent that he directly influences the manner in which the work is performed" and negligently creates or allows a dangerous condition to exist resulting in injury to the employee of the independent contractor.
cited Cited as authority (rule) Martin v. Venice Hosp.
Fla. Dist. Ct. App. · 1992 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973).
cited Cited as authority (rule) Harris v. Shelter Seagate Corp.
Fla. Cir. Ct. · 1990 · confidence medium
Conklin v Cohen, 287 So.2d 56, 59, 60 (Fla. 1973).
discussed Cited as authority (rule) Seals v. United States (2×)
S.D. Fla. · 1989 · confidence medium
See Jones v. Florida Power Corp., 72 So.2d 285, 287 (Fla.1954); Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973); Smith v. Ussery, 261 So.2d 164, 165 (Fla.1972); Moreno v. Universal Trusses, Inc., 416 So.2d 1221, 1222 (Fla. 3d DCA 1982).
discussed Cited as authority (rule) Clerkin v. Kendall Town & Country Associates, Ltd. (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1989 · confidence medium
The final summary judgment under review is reversed and the cause is remanded *289 for further proceedings upon a holding that genuine issues of material fact are presented on this record as to: (1) whether the defendant/owner Kendall Town & Country Associates, Ltd. was acting as its own general contractor on the construction project wherein the plaintiff Mark Clerkin was injured as an employee of an independent contractor, see, e.g., Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977); Smith v. Ussery, 261 So.2d 164 (Fla. 1972); Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966); Holl v. Tal…
discussed Cited as authority (rule) Florida Power & Light Co. v. Huwer
Fla. Dist. Ct. App. · 1987 · confidence medium
Corp. v. Wilkerson, 420 So.2d 587, 590 (Fla.1982); Conklin v. Cohen, 287 So.2d 56, 59-60 (Fla.1973); Smith v. Ussery, 261 So.2d 164 (Fla.1972); Toney Builders, Inc. v. Huddleston, 149 So.2d 38, 40 (Fla.1963).
discussed Cited as authority (rule) Legare v. MUSIC & WORTH CONST., INC.
Fla. Dist. Ct. App. · 1986 · confidence medium
Conklin v. Cowen, 287 So.2d 56, 60 (Fla. 1973); Seaboard Coastline Railroad Company v. Brummitt, 390 So.2d 170 (Fla. 5th DCA 1980); Parkway General Hospital v. Allstate Insurance Company, 393 So.2d 1171 (Fla. 3d DCA 1981). [6] Although the trial court does not purport to rely on this rule as a basis for his decision to grant Leon County's motion to dismiss, it is our conclusion that the rule would support the trial court's action.
discussed Cited as authority (rule) Skow v. Department of Transp.
Fla. Dist. Ct. App. · 1985 · confidence medium
Similarly, based on the foregoing testimony in the case at bar, there remain in my judgment unresolved genuine issues of material fact as to the liability of DOT; primarily the question of whether DOT retained control over Capelletti's method of performance on the job so as to constitute active participation "in the construction to the extent that ... [DOT] directly ... [influenced] the manner in which the work ... [was] performed." Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973).
cited Cited as authority (rule) Cadillac Fairview of Florida, Inc. v. Cespedes
Fla. Dist. Ct. App. · 1985 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 58 (Fla. 1973).
discussed Cited as authority (rule) Davis v. State, Dept. of Corrections
Fla. Dist. Ct. App. · 1984 · confidence medium
They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to do so." Conklin v. Cohen, 287 So.2d 56, 61 (Fla. 1973) (quoting with approval, Geer v. Bennett, 237 So.2d 311, 316 (Fla. 4th DCA 1970)).
discussed Cited as authority (rule) Stephens v. Stearns (2×)
Idaho · 1984 · confidence medium
They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by the failure to do so." Conklin v. Cohen, 287 So.2d 56, 61 (Fla. 1973) (quoting Geer v. Bennett, 237 So.2d *48 311 (Fla.App. 1970)) (emphasis added).
discussed Cited as authority (rule) Lingold v. Transamerica Ins. Co.
Fla. Dist. Ct. App. · 1982 · confidence medium
NOTES [1] § 440.11(1), Fla. Stat. (1981); Conklin v. Cohen, 287 So.2d 56, 59 (Fla. 1973); Smith v. Ussery, 261 So.2d 164, 165 (Fla. 1972); Jones v. Florida Power Corp., 72 So.2d 285, 287 (Fla. 1954). [2] § 440.10, Fla. Stat. (1979).
cited Cited as authority (rule) Carol A. Bartak, Special Administratrix for the Estate of John A. Bartak, Deceased v. Bell-Galyardt & Wells, Inc., Hammel-Green-Abrahamson, Inc. Reid Burton Construction, Inc., Leslie Koss, Curran Nielson, D/B/A Nielson Roofing A/K/A Curran v. Nielson Painting and Decorating, Inc., (Two Cases). Carol A. Bartak, Special Administratrix for the Estate of John A. Bartak, Deceased v. Rapid City Area School District No. 54 Bell-Galyardt & Wells, Inc. Hammel-Green-Abrahamson, Inc. Reid Burton Construction Co., Inc., Leslie Koss, Kinning and Reil, Inc. Curran Nielson, D/B/A Nielson Roofing A/K/A Curran v. Nielson Painting and Decorating, Inc., Carol A. Bartak, Special Administratrix for the Estate of John A. Bartak, Deceased v. Rapid City Area School District No. 54, Bell-Galyardt & Wells, Inc., Hammel-Green-Abrahamson, Inc. Reid Burton Construction, Inc., Leslie Koss, Kinning and Reil, Inc., Curran Nielson, D/B/A Nielson Roofing A/K/A Curran v. Nielson Painting and Decorating, Inc., Carol A. Bartak, Special Administratrix for the Estate of John A. Bartak, Deceased v. Rapid City Area School District No. 54 Bell-Galyardt & Wells, Inc. Hammel-Green-Abrahamson, Inc., Reid Burton Construction Co., Inc., Leslie Koss and Kinning and Reil, Inc., Curran Nielson, D/B/A Nielson Roofing A/K/A Curran v. Nielson Painting and Decorating, Inc.
8th Cir. · 1980 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 61 (Fla.1973), conformed, 291 So.2d 81 (1974).
cited Cited as authority (rule) Bartak v. Bell-Galyardt & Wells, Inc.
8th Cir. · 1980 · confidence medium
Conklin v. Cohen, 287 So.2d 56, 61 (Fla.1973), con formed, 291 So.2d 81 (1974).
discussed Cited as authority (rule) Bobby Joe Richardson v. United States
10th Cir. · 1978 · confidence medium
His immunity from suit is commensurate with his liability for securing compensation no more and no less. 17 See also Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973), 3 and Smith v. Ussery, 261 So.2d 164, 165 (Fla.1972). 18 The United States was not plaintiff's direct employer.
discussed Cited "see" Glen Garron, LLC v. Buchwald (2×)
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973) (determining “the better approach under the facts of this case would have been for the trial court to have dismissed the complaint with leave to amend, rather than to have dismissed the complaint with prejudice” (footnote omitted)); Carr v. Eslinger, 101 So.3d 423, 424 (Fla. 5th DCA 2012); Contractors Unlimited, Inc., 833 So.2d at 288 (reversing a final judgment in favor of the plaintiff for failure to attach the instrument sued upon to the complaint but permitting the plaintiff to file an amended complaint on remand).
discussed Cited "see" Rodriguez v. Bovis of Florida, Inc.
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973) (passive, non-participant owner not liable for general or subcontractor employee injuries); Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518 (Fla. 3d DCA 1998)(same); Reed v. Henry C.
discussed Cited "see" Thompson v. Jess
Utah · 1999 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973) (holding that under “active participation” standard, principal employer must directly influence manner in which work is performed; no duty arises from “passive nonparticipation”).
examined Cited "see" Ramos v. Univision Holdings, Inc. (3×) also: Cited "see, e.g."
Fla. · 1995 · signal: see · confidence high
See Conklin, 287 So.2d at 59 ; Jones v. Florida Power Corp., 72 So.2d at 287 .
discussed Cited "see" Juno Industries, Inc. v. HEERY INTERN.
Fla. Dist. Ct. App. · 1994 · signal: accord · confidence high
Id.; accord Conklin v. Cohen, 287 So.2d 56, 61 (Fla. 1973). *823 Although Disney did have employees on the job site, appellants did not present any evidence that Disney's employees supervised any of Irey's employees on the 2A project.
cited Cited "see" Mirabal v. Cachurra Corp.
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA), review denied, 479 So.2d 117 (Fla.1985).
cited Cited "see" Posigian v. American Reliance Ins. Co.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973).
cited Cited "see" EC Goldman, Inc. v. A/R/C ASSOC., INC.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla. 1973); Parliament Towers Condominium v. Parliament House Realty, Inc .; Navajo Circle, Inc. Development Concepts Corporation; Luciani v. High .
cited Cited "see" Hewett v. Travelers Insurance Co.
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973).
cited Cited "see" Garcia v. Biltmore Court Villas, Inc.
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA), rev. denied, 479 So.2d 117 (Fla.1985); City of Mt.
cited Cited "see" Schwab v. United States
M.D. Fla. · 1986 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973).
cited Cited "see" Curran v. Cedars of Lebanon Hospital Corp.
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954).
cited Cited "see" Gulfstream Land & Development Corp. v. Wilkerson
Fla. · 1982 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla. 1973); Smith v. Ussery, 261 So.2d 164 (Fla. 1972).
cited Cited "see" Matthews ex rel. Harler v. GSP Corp.
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Conklin v. Cohen, 287 So.2d 56 (Fla.1973).
discussed Cited "see, e.g." Endurance American Specialty Insurance Company v. L. Pellinen Construction, Inc.
11th Cir. · 2021 · signal: see also · confidence low
Ct. App. 2019); Cuero, 849 So. 2d at 328–30; see also Conklin v. Cohen, 287 So. 2d 56 , 59–60 (Fla. 1973) (owner with no primary contractual obliga- tion was not a “contractor” entitled to workers’ compensation im- munity merely because it was alleged to have worked in concert USCA11 Case: 21-10256 Date Filed: 11/12/2021 Page: 13 of 17 21-10256 Opinion of the Court 13 with its general contractor, and the owner could therefore be held liable for its negligence if it was actively involved in the project).
discussed Cited "see, e.g." Fuentes v. Sandel, Inc.
Fla. Dist. Ct. App. · 2016 · signal: see also · confidence medium
See also Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973) (holding that to impose liability on the owner based on his control “one or more specific identifiable acts of negligence, ... resulting in the injury or death to an employee, must be established”).
discussed Cited "see, e.g." Umile v. Volpe
Fla. Dist. Ct. App. · 2013 · signal: see also · confidence medium
However, “[liability may be imposed if the owner actively participates and controls the manner in which the work is performed, or if the owner performs one or more specific acts of negligence.” Ahl v. Stone Sw., Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995); see also Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973). 1 In the present case, disputed issues of material fact exist as to whether appel-lee agreed to hold the ladder.
discussed Cited "see, e.g." Cannon v. Fournier
Fla. Dist. Ct. App. · 2011 · signal: see, e.g. · confidence medium
See, e.g., Conklin v. Cohen, 287 So.2d 56, 60-61 (Fla.1973) (architect); Juno Indus., Inc. v. Heery Int'l, 646 So.2d 818, 824-26 (Fla. 5th DCA 1994) (engineer); Moore, 565 So.2d at 820 (engineer); Geer v. Bennett, 237 So.2d 311, 315-16 (Fla. 4th DCA 1970) (architect); Hammond v. Bechtel Inc., 606 P.2d 1269, 1276 (Alaska 1980) (construction manager); Riggins v. Bechtel Power Corp., 44 Wash.App. 244 , 722 P.2d 819, 823-24 (1986) (construction engineer).
discussed Cited "see, e.g." Batmasian v. Ballachino
Fla. Dist. Ct. App. · 2000 · signal: see also · confidence medium
It was not then, a ‘contractor’ within the meaning of the Act.” 72 So.2d at 289 ; see also Conklin v. Cohen, 287 So.2d 56, 59 (Fla.1973) (“By granting the owners immunity from third-party tort suit, merely because ‘they were acting in concert with the general contractor,’ the ...
discussed Cited "see, e.g." Moransais v. Heathman
Fla. · 1999 · signal: see, e.g. · confidence low
See, e.g., Conklin v. Cohen, 287 So.2d 56 (Fla. 1973) (noting that privity of contract is not a prerequisite to liability; architect and engineer may be liable in negligence to third parties for personal injuries for failing to exercise ordinary skill of profession despite lack of contractual privity); A.R.
discussed Cited "see, e.g." Bovis v. 7-Eleven, Inc.
Fla. Dist. Ct. App. · 1987 · signal: see also · confidence low
See also Conklin v. Cohen, 287 So.2d 56 (Fla. 1973). [6] See generally Restatement (Second) of Torts § 344 (1965); Prosser & Keeton, The Law of Torts § 61, at 419-28 (1984). [7] See generally Restatement (Second) of Torts § 358 (1965); Prosser & Keeton, The Law of Torts § 63, at 436 (1984).
cited Cited "see, e.g." Crawford v. Florida Steel Corp.
Fla. Dist. Ct. App. · 1985 · signal: compare · confidence medium
City of Mount Dora v. Voorhees, supra ; compare Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973).
Retrieving the full opinion text from the archive…
Joan CONKLIN, As Widow of and As Administratrix of the Estate of the Deceased, Edward Donald Conklin, Petitioner,
v.
Arthur COHEN et al., Respondents.
42536.
Supreme Court of Florida.
Dec 5, 1973.
287 So. 2d 56
Boyd.
Cited by 92 opinions  |  Published

[*57] Donald Feldman of Feldman & Abramson, Miami, for petitioner.

Steven R. Berger, of Carey, Dwyer, Austin, Cole & Selwood, Miami, for respondent, Morris Lapidus, and Richard M. Gale,[*58] Preddy, Haddad, Kutner & Hardy, for respondents, Arthur Cohen, et al.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 262 So.2d 717. Our jurisdiction is based on conflict between the decision sought to be reviewed and Jones v. Florida Power Corp.,[1] Smith v. Ussery,[2] State ex rel. Auchter Co. v. Luckie,[3] and Geer v. Bennett.[4]

The facts of the case, as recited by the District Court, are as follows:

"From the record on appeal, it appears that one Edward Donald Conklin, husband of the plaintiff Joan Conklin, was employed as a workman on a building being erected in the City of Miami Beach, known as Arlen Beach Apartments when a scaffolding broke and he plunged 17 stories to his death. As a result thereof, the plaintiff brought an action against the appellees, Cohen, Levine, Rose, and Schmincke, d/b/a Arlen Beach Apartments and/or Arlen Two Company and/or Normal of Florida, Inc., as owners of the building; Morris Lapidus, the architect; Oboler and Clark, Inc., the engineering firm; the City of Miami Beach; and Zurich Insurance Company, the workmen's compensation carrier for the contractor and subcontractor. The complaint basically alleged each of the appellees negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed. It also alleged that the deceased was a third party beneficiary of certain agreements between some of the defendants. The appellees moved to dismiss the complaint for failure to state a cause of action and, after hearing thereon, the trial court entered the order of dismissal with prejudice. This appeal ensued. We affirm."[5]

Based upon the foregoing facts, the District Court held that:

"As to the owners, from the allegations of the complaint they were acting in concert with the general contractor and, therefore, they were entitled to the benefit of the immunity provided by § 440.11, Fla. Stat., F.S.A. As to the architect, the contract establishing his relationship with the project was not attached to the complaint. But, it is apparent that he would be entitled to the benefits of the decision in Allen v. Employers Service Corporation, Fla.App. 1971, 243 So.2d 454. As to the engineers, their contract was with the general contractor and they were likewise entitled to the benefits of the decision in Allen v. Employers Service Corporation, supra. Further, it is apparent that they had no duty under their express contract to make safety inspections. As to the City of Miami Beach, it was conceded that there was no liability as to it, based on the decision of Modlin v. Washington Avenue Food Center, Inc., Fla.App. 1965, 178 So.2d 596, affirmed Modlin v. City of Miami Beach, Fla. 1967, 201 So.2d 70. As to the compensation carrier, having discharged its responsibility under the workmen's compensation act as a result of the death of the deceased, it was discharged from liability. Allen v. Employers Service Corporation, supra."[6]

We hereby reverse the District Court of Appeal, Third District, for reasons which will be set out below. Recognizing the substantial amount of confusion which still exists regarding the Workmen's Compensation[*59] Law and third-party tort suits, we will endeavor to provide some additional guidelines for those who follow.

I. OWNERS

The District Court affirmed the dismissal, with prejudice, of the complaint against the owners because, "from the allegations of the complaint they were acting in concert with the general contractor and, therefore, they were entitled to the benefit of the immunity provided by § 440.11, Fla. Stat." An examination of the record convinces us that the District Court's conclusion clearly violates the principles of Jones v. Florida Power Corp., supra, Smith v. Ussery, supra, and their progeny, in that the District Court, in its consideration of whether or not the owners were immune from suit, relied upon a clearly irrelevant factor.

In the landmark case of Jones v. Florida Power Corp., supra, the then Mr. Chief Justice Roberts succinctly stated the basic formula for determining whether one is immune from third-party tort suit, pursuant to the provisions of Section 440.11, Florida Statutes, 1971, F.S.A. This basic formula was re-iterated and re-emphasized some eighteen years later by the present Court in our recent opinion in Smith v. Ussery, supra:

"... . The question is whether the Workmen's Compensation Act imposed upon the Corporation the duty, as an `employer' and `contractor' to secure compensation for such employees. It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation — no more and no less."[7]

By granting the owners immunity from third-party tort suit, merely because "they were acting in concert with the general contractor," the District Court erroneously expanded the single exception to the general rule announced in Jones v. Florida Power Corp., supra — that situation where the owners could also be considered "contractors" or "statutory employers." As then Chief Justice Roberts carefully explained, and, again, as the present Court reiterated and re-emphasized in Smith v. Ussery, supra:

"... . Nor can the Corporation be considered a `contractor,' (and thus the `statutory' employer of Burns' and Grinnell's employees) within the meaning of Section 440.10 quoted supra, since the clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. To `sublet' means to `underlet', Webster's New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so `subletting' is primarily obligated. The Corporation, under the facts here present, had no primary obligation under a contract which it was passing on to another. It was not then, a `contractor' within the meaning of the Act."[8]

Viewing the record before us, it is clear that the owners were under no duty to secure compensation for petitioner. Furthermore, it is clear that the owners did not qualify as "contractors" or "statutory employers," within the foregoing definitions thereof. Therefore, the dismissal, with prejudice, of petitioner's complaint against the owners was erroneous, and the District Court's affirmance of that dismissal must be and hereby is reversed.

As we noted in State ex rel. Auchter Co. v. Luckie, supra:

"[A]n employee of an independent contractor may maintain against an owner[*60] an action at law for damages suffered as a result of the latter's negligence."[9]

The phrase "as a result of the latter's negligence," above means that the owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the statute, one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established. The allegations of petitioner's complaint against the owners sub judice, in light of the foregoing discussion of the phrase, "as a result of the ... [owner's] negligence," clearly stated a cause of action against the owners, and, as clearly, were sufficient to withstand the owners' Motion to Dismiss.

II. ARCHITECT

The District Court affirmed the dismissal, with prejudice, of the complaint against the architect because, "the contract establishing his relationship with the project was not attached to the complaint. But, it is apparent that he would be entitled to the benefits of the decision in Allen v. Employers Service Corporation, Fla. App. 1971, 243 So.2d 454." Contrary to the views of the District Court, however, it is not so apparent that the architect is entitled to the benefit of said decision. In Allen v. Employers Service Corporation,[10] the District Court of Appeal, Second District, held that a service company, which had agreed to furnish the employer with inspection and advisory services relating to the safety of its employees, was immune from being sued as a third-party tort-feasor by an injured employee covered under the workmen's compensation program. Thus, because the service company had contracted with and agreed to work for the employer, the service company came under the employer's umbrella of immunity from third-party tort suit. Conversely, it is apparent that had the service company been working as an independent contractor, it would not have been entitled to such immunity.

As the District Court correctly noted, the contract establishing the architect's relationship with the project was not attached to the complaint. However, from the allegations in the complaint, it is clear that the plaintiff assumed that the architect contracted with and agreed to work for the owner, not the employer, and was thus not eligible for Allen-type immunity from third-party tort suit. While the contract is a basis upon which the action is based, and is therefore required to be attached to or incorporated in the pleadings, pursuant to Rule 1.130(a), RCP, 30 F.S.A., and the failure to so attach the contract, could, therefore, subject the complaint to dismissal, Sachse v. Tampa Music Company,[11] the better approach under the facts of this case would have been for the trial court to have dismissed the complaint with leave to amend, rather than to have dismissed the complaint with prejudice. Properly, therefore, the District Court should have remanded the cause with instructions that the complaint be dismissed with leave to amend so as to allow compliance with the rule.

If, on remand of this case, it is found that the architect was working as an[*61] independent contractor, i.e., that his contract was with the owner, and not the employer, then petitioner, as representative of the deceased employee of another independent contractor, may maintain against the architect an action at law for damages suffered as a result of the latter's negligence. Once again, this time in relation to the architect, the phrase, "as a result of the latter's negligence," must be defined. We hereby choose to adopt the excellent, comprehensive definition of an architect's liability announced in Geer v. Bennett, supra:

"... . [A]n architect who plans and supervises construction work as an independent contractor is under a duty to exercise ordinary care in the course thereof for the protection of any person who foreseeably and with reasonable certainty may be injured by his failure to do so."
"The law applicable to an architect's liability for personal injury or death may be summarized as follows. An architect may be liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anybody lawfully on the premises is injured. Possible liability for negligence resulting in personal injuries may be based upon their supervisory activities, or upon defects in the plans or both. Their possible liability is not limited to the owner who employed them. Privity of contract is not a prerequisite to liability. They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to do so."
"An architect has been defined as one skilled in practical architecture, one whose profession it is to devise the plans and ornamentation of buildings or other structures and supervise their construction. An architect or engineer has also been defined as one whose special business it is to design buildings, fix the thickness of their walls, the supports necessary for the maintenance of them in their proper position, and do all other things in the line of his profession for the guidance of builders in the erection of buildings. Architecture is the art of building according to certain determined rules... ."
"Decisions of other states make it clear that an architect is not under a duty to supervise construction... . However, architects do supervise as a matter of common practice ... and such supervision is properly within the scope of their professional capacities. When architects do undertake supervision of construction in addition to the preparation of plans, they generally are compensated separately or additionally, and if they perform their supervisory duties in a negligent fashion their liability therefor is separate and distinct from the liability of the party who negligently performs the actual building process... ."[12]

The allegations of petitioner's complaint against the architect sub judice, in light of the foregoing discussion of the phrase, "as a result of the ... [architect's] negligence," clearly stated a cause of action against the architect, and, as clearly, were sufficient to withstand the architect's Motion to Dismiss. Therefore, the dismissal, with prejudice, of petitioner's complaint against the architect was erroneous, and the District Court's affirmance of that dismissal must be and hereby is reversed.

[*62] III. ENGINEERS

The District Court affirmed the dismissal, with prejudice, of the complaint against the engineers because, "their contract was with the general contractor and they were likewise entitled to the benefits of the decision in Allen v. Employers Service Corporation, supra." Petitioner has sought certiorari only as to the owners, architect, and compensation insurance carrier and, as a result, the engineers have filed no brief with this Court. Consequently, the decision of the District Court must stand. However, even if we were to consider the complaint against the engineers, it would appear that since, as the District Court found, "their contract was with the general contractor," the engineers would indeed be entitled to Allen-type immunity from third-party tort suit.

Although the question is not before us today, it would seem that all that was said in the foregoing discussion of the immunities and liabilities of architects also may be said of the immunities and liabilities of engineers or, for that matter, any other independent contractors. That is, if the engineers' contract is with the employer, and the engineers perform services more properly described as being for the employer rather than for the owner, then the engineers come under the employer's umbrella of immunity from third-party tort suit.[13] Conversely, if the engineers work as independent contractors, they are entitled to no such immunity. Assuming the engineers are found to be working as independent contractors, they will be held liable for damages suffered as a result of their negligence, as defined by standards analogous to those applied to architects in Geer v. Bennett, supra.

IV. LOCAL GOVERNMENTAL ENTITY AND WORKMEN'S COMPENSATION CARRIER

The District Court affirmed the dismissal, with prejudice, of the complaints against the local governmental entity and the workmen's compensation insurance carrier, holding that: "As to the City of Miami Beach, it was conceded that there was no liability as to it, based upon the decision of Modlin v. Washington Avenue Food Center, Inc., Fla.App. 1965, 178 So.2d 596, affirmed Modlin v. City of Miami Beach, Fla. 1967, 201 So.2d 70. As to the compensation carrier, having discharged its responsibility under the workmen's compensation act as a result of the death of the deceased, it was discharged from liability. Allen v. Employers Service Corporation, supra." Petitioner has not sought certiorari as to the local governmental entity. Consequently, that part of the decision of the District Court must stand.[14] As to the complaint against the workmen's compensation carrier, we hold that the District Court's affirmance of the trial judge's dismissal of this portion of the complaint, based upon the authority of Allen v. Employers Service Corporation, supra, was proper, and hereby affirm the same.

Accordingly, the decision of the District Court of Appeal, Third District, is reversed in part, affirmed in part, and the cause remanded for further proceedings consistent herewith.

It is so ordered.

[*63] The original majority opinion herein has been revised, and the petitions for rehearing are visited to the revised opinion and are hereby denied.

It is so ordered.

CARLTON, C.J., and ERVIN, ADKINS, McCAIN and DEKLE, JJ., concur.

1 72 So.2d 285 (Fla. 1954).
2 261 So.2d 164 (Fla. 1972).
3 145 So.2d 239 (Fla.App. 1st), cert. denied, 148 So.2d 278 (1962).
4 237 So.2d 311 (Fla.App.4th 1970).
7 Jones v. Florida Power Corp., 72 So.2d at 285, cited in Smith v. Ussery, 261 So.2d at 165.
8 Jones v. Florida Power Corp., 72 So.2d at 289, cited in Smith v. Ussery, 261 So.2d at 165.
9 145 So.2d at 242 (Footnote omitted.)
10 243 So.2d 454 (Fla.App.2nd 1971).
11 262 So.2d 17 (Fla.App.2nd 1972).
12 237 So.2d at 315-317 (Citations and Footnote omitted.)
13 See Section 440.11(2), Florida Statutes, 1971, F.S.A.
14 Even if we were to consider the complaint against the local governmental entity, it would appear that, in view of this Court's decision in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967), the District Court's affirmance of the trial judge's dismissal of this portion of the complaint was proper.