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Fana v. Orkin Exterminating Co.
Citations: 734 So. 2d 434; 1999 Fla. App. LEXIS 5403; 1999 WL 247026Docket: No. 98-1618
Court: District Court of Appeal of Florida; April 28, 1999; Florida; State Appellate Court
Florencio Fana appeals a final summary judgment in a negligence case against Orkin, which performed fumigation at Fana's townhouse. The contract specified that Orkin would not be liable for vandalism, theft, or breaking and entering during fumigation and advised homeowners to secure their properties. On March 25, 1992, Orkin began fumigation but halted due to adverse weather, leaving part of Fana's townhouse tented. That evening, Fana encountered intruders who assaulted him, leading to significant injuries. Fana sued Orkin for negligence, claiming it failed to properly complete the fumigation, thereby exposing his property to risk. Orkin sought summary judgment based on the contract's liability release and the warning about security. The trial court granted summary judgment in favor of Orkin, but this was deemed an error. The court noted that a pre-incident release does not bar claims of subsequent negligence unless it explicitly limits liability for such actions. Since Fana's claim was based on Orkin's alleged negligence in failing to secure his property rather than vandalism or theft, the contract's provisions did not apply. The court referenced a prior case, Witt v. Dolphin Research Center, emphasizing that the lack of specific reference to "negligence" in the release meant it could not serve as a defense against Fana's claim. Consequently, the summary judgment was reversed, and the case was remanded for further proceedings, allowing the trial court to reassess Orkin's duty to Fana under the circumstances.