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Brookie v. Winn-Dixie Stores, Inc.

Florida Court of Appeals, First District

April 4, 2017

THOMAS BROOKIE, Appellant,
v.
WINN-DIXIE STORES, INC. and THE LEWIS BEAR COMPANY, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Bay County. James B. Fensom, Judge.

          Harold R. Mardenborough, Jr. and C. Brian Davidson of Perry & Young, P.A., Panama City, for Appellant.

          Robert C. Palmer, III of Wade, Palmer & Shoemaker, P.A., Pensacola; Randall G. Rogers and Kathryn L. Ender of Cole Scott & Kissane, Pensacola, for Appellee Winn-Dixie Stores, Inc.

          Charles Wiggins of Beggs & Lane, RLLP, Pensacola, for Appellee The Lewis Bear Company.

          B.L. THOMAS, J.

         In this premises-liability case we address the issue of whether summary judgment may be granted when the injured party observed the condition but failed to step around the easily avoidable obstacle. We hold that the trial court properly granted summary judgment, because as a matter of law Appellees owed no duty to warn Appellant, and properly discharged their duty to exercise ordinary care to maintain the premises in a reasonably safe condition.

         Appellant went to Winn-Dixie to make a purchase and get empty boxes. During his visit, Appellant made a total of four trips into and out of the store. On the first trip, Appellant made his purchase and took it to his car; he then made three more trips into Winn-Dixie to obtain empty boxes, returning them to his car. During this time, a Lewis Bear employee was delivering a shipment of beer. The beer was stacked approximately five feet high on a pallet between Winn-Dixie's entrance and exit doors, and an empty pallet was sitting on the pallet jack's prongs to the right of the exit. On Appellant's third trip exiting the store, he saw the empty pallet, but tripped and fell over it, suffering injuries as a result. Appellant sued Appellees for negligently failing to warn of the dangerous condition and negligently failing to make the sidewalk safe to walk across.

         During discovery, Appellant produced an affidavit from his expert averring that Appellees created an unsafe condition, and Appellees offered video surveillance still-shots from footage of the events. In his deposition, Appellant testified that he did not notice the empty pallet until his third trip, claiming that he tripped over the prongs protruding from underneath the pallet, as opposed to the pallet itself. After hearing arguments, the trial court granted summary judgment in favor of Appellees, finding Appellees owed no duty to warn Appellant of the pallet or the prongs, because Appellant was aware of the condition. The court further found the condition to have been so open, obvious, and ordinary that it was inherently not dangerous as a matter of law, absolving Appellees of liability.

         In a premises-liability decision upholding summary judgment for the landowner, the Florida Supreme Court recognized more than a half-century ago that a

business invitee is entitled to expect that the proprietor will take reasonable care to discover the actual condition of the premises and either make them safe or warn [the invitee] of dangerous conditions, it is equally well settled that the proprietor has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

Earley v. Morrison Cafeteria Co. of Orlando, 61 So.2d 477, 478 (Fla. 1952) (emphasis added). This court has also held that "there is no duty to warn against an open and obvious condition which is not inherently dangerous." Ramsey v. Home Depot U.S.A., Inc., 124 So.3d 415, 417 (Fla. 1st DCA 2013). As premises-liability law developed post-Earley, lower-court decisions have recognized that a business owner owes two "separate and distinct" duties to business invitees: "1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition." Rocamonde v. Marshalls of Ma, Inc., 56 So.3d 863, 865 (Fla. 3d DCA 2011).

         As noted in Rocamonde:

The granting of summary judgment is subject to de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000). The appellate court is required to 'consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed.' Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009), quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). In negligence suits particularly, 'summary judgments should be cautiously granted.' Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). 'If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.' Id. (citing Williams v. Lake City, 62 So.2d 732 (Fla. 1953)). Summary judgment should not be granted 'unless the facts are so crystallized that nothing remains but questions of law.' Id. (citing Shaffran v. Holness, 93 So.2d 94 (Fla. 1957)).

Id. at 864-865.

         In Rocamonde, the Third District held that summary judgment based on Earley was improper where "'it is the dangerous condition of an object which must be open and obvious, not simply the object itself.'" Id. (quoting Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 555 (Fla. 3d DCA 2000)). The Third District also noted that, although a property owner may comply with the duty to warn of an open and obvious condition, this "does not necessarily mean the landowner has satisfied the duty to maintain the premises in a reasonably safe condition[.]" (Emphasis added.) Id. at 864. Obviously, in some cases, a property owner may in fact comply with both duties when an open and obvious condition does not trigger a duty to warn and the condition itself does not violate a property owner's duty to maintain the premises in a reasonably safe condition. We hold here that Appellees did not violate any legal duty to Appellant, who observed the condition but was injured by failing to use due care for his own safety, when a reasonable person could have easily avoided the obstacle and thereby prevented injury.

         Here, Appellant admitted that he saw the empty pallet when he exited the store and took four more steps before tripping over it. The surveillance video footage conclusively refutes Appellant's allegation that he tripped over the prongs, as he tripped over the pallet itself, but we note that the trial court found Appellant's claim regarding the prongs to be immaterial, and we agree with the trial court, which ruled "the [Appellant] changed course and walked so as to avoid the [pallet] on three other occasions during the surveillance video, twice prior to his fall and once again a few minutes afterward. The Court concludes that no genuine issue of fact exists regarding whether the condition causing [Appellant's] fall was open and obvious." (Emphasis added.)

         Therefore, the facts are sufficiently crystallized here so that the issue on appeal is purely a question of law: Did Appellees violate either a duty to warn of a dangerous condition or a duty to maintain the premises in a reasonably safe condition, when Appellant previously observed an open and obvious ...


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