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Parker v. Shelmar Property Owner's Association, Inc.

Florida Court of Appeals, Fifth District

June 21, 2019

SHERRYE PARKER, Appellant,
v.
SHELMAR PROPERTY OWNER'S ASSOCIATION, INC., KARL BURGUNDER AND SHEILA BURGUNDER, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Seminole County, Michael J. Rudisill, Judge.

          Steven J. Tomesko, of Dan Newlin & Partners, Orlando, for Appellant.

          John R. McDonough, of Meier, Bonner, Muszynski, O'Dell & Harvey, P.A., Longwood, for Appellee, Shelmar Property Owner's Association, Inc.

         No Appearance for other Appellees.

          GROSSHANS, J.

         Sherrye 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 proceedings.

         Appellant 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.

         After 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.

         Appellant 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."

         Before 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.

         "Summary 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).

         A 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).

         In the 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 ...


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