Key Points

  • The Fourth District Court of Appeal reversed an order compelling arbitration of a homeowner's negligence claim against the company that coated his pool deck.
  • Although the contract's arbitration clause was broad, the court held the negligence claim lacked a significant relationship, or contractual nexus, to the contract.
  • The duties alleged, reasonable care in installation and a duty to warn of latent hazards, were pleaded as protecting invitees and visitors generally rather than arising from the contract.
  • The contract's references to slipperiness, slip-and-fall injuries, tort liability and negligence did not change the source of those duties.
  • Arbitration of the two implied warranty counts stands because the homeowner did not challenge that part of the order.

A Florida appeals court ruled Thursday that a homeowner who says he slipped on his coated pool deck may pursue a negligence claim against the installer in court, even though his contract with the company sent disputes to arbitration and expressly disclaimed liability for slip-and-fall injuries.

A three-judge panel of the Fourth District Court of Appeal reversed in part a Martin County judge's order that had sent all of Christian Boberg's claims against Ox of South Florida Inc. to arbitration. In an unsigned per curiam opinion, issued in the name of the court and joined by Judges Ciklin, Conner and Klingensmith, the panel held that the negligence count lacked the "contractual nexus" that Florida law requires before a claim falls within an arbitration clause.

The decision sends Boberg's negligence claim back to the trial court, while two implied warranty claims he did not appeal remain in arbitration. The panel also concluded that the contract's own language about slippery surfaces and slip-and-fall injuries did not change the analysis, because the duties Boberg alleged ran to anyone visiting the property, not to him as Ox's customer.

According to the opinion, Boberg hired Ox in August 2023 to install a floor coating around his residential pool. The contract stated that Ox did not warrant a slip-resistant surface, disclaimed responsibility for injuries resulting from a slip and fall, and limited Ox's potential liability, including liability based on tort or negligence.

The contract also gave Ox, at its sole discretion, the right to send to binding arbitration "any controversy, claim, or counterclaim . . . arising out of or relating or pertaining to this agreement."

After he allegedly slipped on the flooring, Boberg sued. Count I of his complaint alleged that Ox owed a duty "to exercise reasonable care in the preparation and installation of its product for the safety of any invitees and visitors, including Plaintiff." He alleged that Ox negligently installed the flooring and failed to warn of latent hazards. Counts II and III asserted implied warranty claims.

Ox moved to compel arbitration under the contract. Judge William L. Roby of the Martin County circuit court granted the motion as to all three counts, directed the parties to arbitrate before a single arbitrator, and put the lawsuit on hold pending an arbitration award. Boberg appealed that nonfinal order but challenged it only as to the negligence count.

The panel reviewed the question de novo. It concluded that the clause's "arising out of or relating to" language made it a broad arbitration provision under the Florida Supreme Court's 1999 decision in Seifert v. U.S. Home Corp. But the panel wrote that "breadth does not make every dispute between the parties arbitrable—a claim must still have a significant relationship, or contractual nexus, to the contract."

Drawing on the state high court's 2013 decision in Jackson v. Shakespeare Foundation Inc., the panel explained that such a nexus exists when resolving a claim requires reference to or construction of the contract, or when the claim arises from a duty created by the parties' unique contractual relationship. "A claim lacks the required nexus when it concerns a duty imposed by law and generally owed to third parties or the public," the court wrote.

The panel leaned on two earlier cases. In Seifert, a woman sued a homebuilder for negligence after an allegedly defective air conditioning system drew carbon monoxide into the home and caused her husband's death. The Florida Supreme Court held that the claim was not subject to arbitration because the duties to use reasonable care and to warn of a dangerous condition existed independently of the contract. The panel noted that the Seifert court also explained that "the mere fact that a dispute would not have arisen but for the parties' contractual relationship does not establish the required nexus."

The second case was the Fourth District's own 2021 decision in Dewees v. Johnson. There, the court held that negligence claims fell outside an arbitration provision even though the clause specifically covered personal injury claims, because the claims concerned duties generally owed to roadway users and did not require construction of the parties' purchase contract.

Applying those decisions, the panel acknowledged that Boberg allegedly fell on flooring Ox had contracted to install. But it found that his complaint pleaded duties to prepare and install the flooring safely and to warn of latent hazards. "Those duties are alleged to protect invitees and visitors generally, rather than arising from Boberg's contractual relationship with Ox," the court wrote.

The panel then addressed the contract's disclaimers, which anticipated the very kind of injury Boberg alleged. "References in the contract to slipperiness, slip-and-fall injuries, tort liability, and negligence do not change the source of the duties alleged in Count I," the opinion said. The court concluded: "Because Count I lacks the required contractual nexus, the negligence claim is not subject to arbitration."

The opinion did not decide whether the contract's disclaimers or liability limits would bar or reduce Boberg's negligence claim. It addressed only which forum would hear the claim.

Boberg was represented by Adam Richardson of Burlington & Rockenbach, P.A., and Sean Pleus of Shiner Law Group. Ox was represented by Alyssa M. Reiter of Wicker, Smith, O’Hara, McCoy, & Ford, P.A.

The appeals court remanded the case to the Martin County circuit court for further proceedings on the negligence count. The order compelling arbitration of the two warranty counts "remains undisturbed because Boberg does not challenge that portion of the order," the panel wrote. The opinion is not final until the court disposes of any timely motion for rehearing.