final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No.
E. Brocato, Sr. of Murphy & Brocato, Coconut Creek, for
A. Valdez and Karen M. Shimonsky of Quintairos, Prieto, Wood
& Boyer, P.A., Tampa, for Appellees Waterway East
Association, Inc., W.E. Association, Inc. and Waterway
Condominium Association, Inc.
premises liability action, the plaintiff, Delores Arp,
appeals a final judgment entered in favor of one of the
defendants, W.E. Association, Inc., following the trial
court's order granting W.E. Association's motion for
summary judgment. Because the plaintiff was an uninvited
licensee at best, and because W.E. Association did not breach
any duty it owed to her in her capacity as an uninvited
licensee, we affirm.
around 11:00 p.m. one evening, the plaintiff was injured
while walking over a pathway of "paver stones"
located in the area of a utility easement on property owned
by W.E. Association and operated as a shopping center. The
plaintiff stepped on a cracked paver stone that was "a
little loose, " causing her to roll her ankle and fall.
The accident occurred as the plaintiff and a companion were
walking back to the plaintiff's home after taking a
dinner cruise in Delray Beach.
the plaintiff and her companion had walked along public roads
on the way to the dinner cruise, they decided to take a
shortcut on the way home. To access the plaintiff's
street via this "cut through, " one has to go
through the shopping center's parking lot, step over a
raised curb at the end of the parking lot, and then walk
through a grassy area, over a short path of paver stones
located next to a storm pump station, through more grass, and
around a guardrail.
"cut through" area of the property is subject to a
perpetual easement in favor of the City of Delray Beach for
the purpose of the installation and maintenance of public
utilities. The easement contains multiple storm pumps, which
are maintained by the City.
"cut through" did not have a "No
Trespassing" sign at the time of the incident. The
plaintiff testified that she regularly saw other people using
the "cut through."
evening of the accident, the plaintiff did not visit any of
the businesses in the shopping center. The reason she took
the shortcut on W.E. Association's property was because
she "[j]ust wanted to get home."
plaintiff filed a negligence action against W.E. Association
and other defendants, alleging that she was an implied
invitee on the property by virtue of the creation of the
pathway and that she was injured as a result of the
defendants' negligent maintenance of the pathway. The
plaintiff later filed an amended complaint, adding the City
as a defendant.
Association ultimately moved for summary judgment, arguing in
relevant part that: (1) it did not breach any duty to the
plaintiff, who was either a trespasser or an uninvited
licensee, and (2) it had no duty to maintain an area covered
by an exclusive utility easement granted to the City.
trial court granted the motion for summary judgment, finding
that there were no genuine issues of material fact. The trial
court reasoned that the plaintiff "was at best a
licensee" and that W.E. Association's "only
duty was not to harm her willfully or
wantonly." The trial ...