David MALDONADO et al., Petitioners, v. JACK M. BERRY GROVE CORP. et al., Respondents, 351 So. 2d 967

HATCHETT, Justice. By petition for writ of certiorari, we review a decision of the Second District Court of Appeal, reported at 322 So.2d 608. That decision directly conflicts with Hix v. Billen, 284 So.2d 209 (Fla.1973). We have jurisdiction pursuant to

Article V,

Section 3(b)(3). We reverse. Petitioner, a three-year-old child, was taken by his parents to the place of their employment, a citrus grove owned and operated by the respondent. The child was put into a large empty tub while his parents filled other tubs with fruit. According to the usual procedure, after the tubs were filled, they were emptied into a truck by means of a mechanical hydraulic lifting device known as a “goat.” The driver of the “goat,” operating the vehicle in reverse gear without a rear view mirror, backed over the child, who had climbed out of the tub, and severed his spinal cord.

The operator of the “goat” was a member of a fruit picking crew which had been hired by the Jack M. Berry Grove Corporation to perform fruit picking and related chores. Although the Berry Corporation was aware of the fact that its employees brought their minor children upon the premises, they had taken no precautions to protect the safety of the children.

The landowner attempted to discourage pickers from bringing their children into the groves, but there is evidence from which a jury might determine that such efforts were insufficient and unreasonable in light of the dangerous situation created by the presence of small children in the work areas. The trial court granted a motion for

summary judgment on behalf of Jack M. Berry Grove Corporation and its insurer, relying upon the decision of this Court in Wood v. Camp, 284 So.2d 691 (Fla.1973). The Second District Court of Appeal affirmed, determining that the injured chilli in the present case was an “uninvited licensee,” as defined in the Wood decision.

The District Court noted .that a landowner owes a licensee a duty to refrain from wanton negligence or willful misconduct which might cause injury, to refrain from intentionally exposing the licensee to danger, and to warn of any dangerous latent defect or condition known to the landowner, but not open to ordinary observation to the licensee. There was no showing that Berry Grove failed to carry out this duty. However, Wood v. Camp, supra, involved negligence based upon a negligent condition of the premises, and the duty of the landowner in that regard.

The present case involves alleged personal negligence on the part of the landowner. In Hix v. Billen, supra, 284 So.2d at 210, this Court held: Where the presence of the injured person is known to the landowner and the injury is caused by the active conduct or affirmative negligence of the landowner as distinguished from the condition of the premises, ordinary negligence is the measure of care as in other negligence situations. (Emphasis supplied) Only when liability is predicated upon an alleged defective or dangerous condition of the premises is the injured person’s status relevant.

Wood controls the liability of a landowner for injuries arising out of a defect in the premises, whereas the standard of ordinary negligence set forth in Hix governs the liability of a landowner to a person injured on his property unrelated to any defective condition of the premises. Here the grove itself was not dangerous. However, the operation of the “goat” among children present in the grove created a dangerous situation.

In the presence of a known danger, the fact that a dangerous condition was created or partially caused by an independent contractor will not shield an employer/landowner from legal liability, if the employer/landowner was negligent in failing to take sufficient precautions to alleviate the dangerous situation. Therefore, since there exists evidence upon which a jury might find Berry Grove negligent, resulting in the present injury, it was improper to have granted

summary judgment in favor of Berry Grove. The District Court’s opinion is quashed, and the cause remanded for a jury trial. It is so ordered. ADKINS, BOYD and KARL, JJ., concur. SUNDBERG, J., dissents with an opinion. OVERTON, C. J., and ENGLAND, J., dissent and concur with SUNDBERG, J. . Berry Admitted that injuries resulting from the operation of the “goats” were a frequent occurrence. . This is applicable to liability based upon either the active or passive negligence of the landowner, unaffected by those special duties created by a person’s “status” as set forth in Wood v. Camp, supra. .

We do not hold that harvesting citrus is an inherently dangerous operation creating a non-delegable duty on the employer to exercise reasonable care to prevent harm to third persons when the independent contractor is performing inherently dangerous work, see Florida Power & Light Co. v. Price, 170 So.2d 293 (FIa.1964). . Maule Industries v. Messana, 62 So.2d 737 (Fla.1953); Peairs v. Florida Pubiishing Co., 132 So.2d 561 (Fla.1st DCA 1961); Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229 (2nd Cir. 1973).