FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Michael J.
J. Tomesko, of Dan Newlin & Partners, Orlando, for
R. McDonough, of Meier, Bonner, Muszynski, O'Dell &
Harvey, P.A., Longwood, for Appellee, Shelmar Property
Owner's Association, Inc.
Appearance for other Appellees.
Parker (Appellant) appeals a final summary judgment in favor
of Shelmar Property Owner's Association, Inc. (Appellee).
Concluding that material issues of fact remain regarding
Appellee's duty to maintain the premises in a reasonably
safe condition, we reverse and remand for further
sustained injuries when she tripped on a wheel stop in
Appellee's parking lot. Based on this incident, Appellant
filed an action for damages. She alleged that Appellee had a
duty to maintain the premises in a reasonably safe condition
and that the specific placement of the wheel stop breached
that duty, resulting in her injury.
conducting discovery, Appellee moved for summary judgment,
arguing entitlement to judgment as a matter of law pursuant
to the open and obvious danger doctrine. Appellee further
claimed that it did not breach the duty to maintain the
premises in a reasonably safe condition because invitees
should be reasonably expected to see wheel stops and protect
themselves. In support of its summary judgment motion,
Appellee attached the affidavit of Karl Burgunder, a former
party to the case. Among other things, Burgunder asserted
that the wheel stops were in place when Appellee obtained the
property, the area was well-maintained, and there had been no
reports of any prior accidents related to the wheel stops.
filed a response to the summary judgment motion, arguing that
Appellee "violated Chapter 10, Section 1002.1 of the
Florida Building Code, by placing the subject parking bumper
in the pathway of an ingress and egress into the subject
building." In support of her response, Appellant
attached photos of the parking lot, wheel stop, and building
entry. Additionally, she attached the affidavit of a forensic
engineer, who maintained that the placement of the wheel stop
in front of the walkway created a dangerous condition,
violated the Florida Building Code, and did not follow the
Standard Practice for Safe Walking Surfaces, which he
explained was "an industry standard for construction
guidelines and minimum maintenance criteria for new and
existing buildings and structures."
the scheduled hearing on the motion, the trial court granted
summary judgment in favor of Appellee. Appellant filed a
motion for rehearing, which the court summarily denied. This
appeal timely followed.
judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a
matter of law." Volusia Cty. v. Aberdeen at Ormond
Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (citing
Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58
(Fla. 1st DCA 1999)). Accordingly, we review de novo the
trial court's decision to grant summary judgment.
Id. When reviewing an order granting summary
judgment, "[a]n appellate court must examine the record
in the light most favorable to the non-moving party."
Vander Voort v. Universal Prop. & Cas. Ins. Co.,
127 So.3d 536, 538 (Fla. 4th DCA 2012).
landowner owes an invitee a duty to: (1) "use ordinary
care in keeping the premises in a reasonably safe
condition," and (2) "give timely warning of latent
or concealed perils which are known or should be known by the
owner or occupier." Krol v. City of Orlando,
778 So.2d 490, 492 (Fla. 5th DCA 2001). To establish a lack
of negligence, the landowner must demonstrate that there is
no duty owed to the invitee or that it did not breach a duty
which is owed. See Smith v. Grove Apartments, LLC,
976 So.2d 582, 586 (Fla. 3d DCA 2007).
summary judgment motion, Appellee's defense rested
primarily on the open and obvious danger doctrine. However,
this doctrine does not completely discharge the property
owner's duty to maintain the premises in a reasonably
safe condition. SeeTrainor v. PNC Bank,
N.A., 211 So.3d 366, 368 (Fla. 5th DCA 2017).
Furthermore, when an injured party alleges a breach of the
duty to maintain the premises in a reasonably safe condition,
factual issues frequently exist "as to whether the
condition was dangerous and whether the owner or possessor
should have anticipated that the dangerous condition would
cause injury despite the fact it was ...