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Arp v. Waterway East Association, Inc.

Florida Court of Appeals, Fourth District

April 26, 2017

DELORES ARP, Appellant,
v.
WATERWAY EAST ASSOCIATION, INC., a Florida non-profit corporation, W.E. ASSOCIATION, INC., a Florida non-profit corporation, WATERWAY CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation, and CITY OF DELRAY BEACH, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 502013CA015566XXXXMBAN.

          Chad E. Brocato, Sr. of Murphy & Brocato, Coconut Creek, for appellant.

          Thomas 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.

          Taylor, J.

         In this 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.

         At 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.

         Although 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.

         The "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.

         The "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."

         On the 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."

         The 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.

         W.E. 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.

         The 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."[1] The trial ...


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