final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No.
Alexander Annunziato of Wolfson Law Firm, LLP, Miami, and
Douglas F. Eaton of Eaton & Wolk, PL, Miami for
Smith of Rumberger, Kirk & Caldwell, Tallahassee and H.
Jacey Kaps of Rumberger, Kirk & Caldwell, Miami, 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.
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.
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.
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.
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).
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).
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 ...