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Leon v. Pena

Florida Court of Appeals, Fourth District

June 12, 2019

MARY LEON, Appellant,
v.
EDWARD PENA and SORIS PARAJON, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No. CACE17-018943-02.

          Alexander Annunziato of Wolfson Law Firm, LLP, Miami, and Douglas F. Eaton of Eaton & Wolk, PL, Miami for appellant.

          Nicole Smith of Rumberger, Kirk & Caldwell, Tallahassee and H. Jacey Kaps of Rumberger, Kirk & Caldwell, Miami, for appellees.

          KLINGENSMITH, J.

         For almost ten years, appellant Mary Leon traversed an area in her condominium complex with a broken sidewalk. She did this fully aware of the damage to the pathway, never taking special care to avoid it, and always without incident. That is, until the day she lost her footing and fell over that portion of fractured concrete. Then she sued her landlords Edward Pena and Soris Parajon for injuries from her fall, alleging failure to warn and failure to maintain the premises. The trial court granted summary judgment in favor of the landlords on all claims based on Leon's undisputed knowledge of the path's condition, its open and obvious nature, and her assumption of the risk. For the reasons set forth below, we affirm in part and reverse in part.

         Leon testified at deposition that she first noticed a crack in the sidewalk when she moved into the premises almost a decade ago. This damaged section continued to deteriorate over time and gradually expanded. She admitted that the broken portion of the path was noticeably inconsistent with the rest of the well-maintained yard, that she was well aware of it the day she fell and knew there were safer alternatives than walking across that particular area.

         When the landlords moved for summary judgment, Leon argued that there remained genuine issues of material fact regarding the obviousness of the dangerous condition that caused her injuries, and that the landlords breached their duty to maintain the premises because they knew about the sidewalk's condition but failed to undertake any repairs. Leon countered the motion with her own affidavit, stating she complained of the damaged pathway to the landlords, and they agreed to fix it but failed to do so. She also alleged that she offered to repair the broken section herself, but this offer was refused. While Leon admitted that she knew the pathway needed repair, she claimed she did not know of the concealed danger that caused the crack to suddenly crumble under her feet.

         At the hearing, the trial court entered summary judgment in favor of the landlords and stated:

It's pretty clear from the plaintiff's affidavit, it very much establishes that this was open and obvious to the plaintiff, that it was in need of repair, that this was a damage situation, present from day one of the lease; and therefore, being open and obvious, being apparent, I think this tenant assumed that risk and they continued to walk on it, despite knowing that it was dangerous. Therefore, the motion is granted.

         This appeal follows.

         The standard of review for an order granting summary judgment is de novo. See Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012).

         "A landowner or occupier owes an invitee two independent duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils." Id. at 734; see Wolford v. Ostenbridge, 861 So.2d 455, 456 (Fla. 2d DCA 2003) (recognizing that these two duties are "distinct"); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986) (recognizing that these two duties are "alternative"). In addition to alleging negligence based on breach of the duty to warn of the alleged dangerous condition, Leon also alleges the landlords breached their duty to maintain the premises in reasonably safe condition. The fact that Leon claims a breach of both duties is significant. See Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 578 (Fla. 5th DCA 2005).

         The open and obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate those injuries. See id. at 576-77. In other words, the possessor of land may "assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their ...


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