News Room

News Room

Case Update

June 2, 2017

Dear Ladies/Gentlemen:

This month we would like to share with you some recent opinions of the Florida District Courts of Appeals which may be of interest to you.

In Delores ARP v. Waterway East Association Inc., the Fourth District Court of Appeal found that a commercial land owner did not breach any duty it owed to the plaintiff as an uninvited licensee or trespasser. Because the defendant did not willfully or wantonly harm the plaintiff and the property did not contain any “known dangers” that were not open to ordinary observation. The duty to warn an uninvited licensee or trespasser of a concealed danger known to the owner arises only when the owner discovers the entrant’s presence on the property.

In Lee County Department of Transportation v. The Island Water Association, Inc. and Annette Cantalupo, the Second District Court of Appeal reversed summary judgment holding that it was in error to determine as a matter of law that the utility company had no legal duty to correct or warn of a protruding water valve.

In Padilla v. Schwartz, the Fourth District Court of Appeal found the lower court erred in granting summary judgment in favor of front driver finding that rear driver’s negligence caused a car accident occurring when the rear driver hit the back of the front driver’s car, when the rear driver rebutted rear-end presumption of negligence by showing through credible evince that there was a genuine issue of material fact as to whether the front driver contributed to cause of accident by suddenly changing lanes.

 Delores ARP v. Waterway East Association Inc., No. 4D16-114 (Fla. 4th DCA, April 26, 2017)

Facts & Procedural History

At around 11:00pm one evening, the plaintiff was injured while walking over a pathway of “paver stones” located in the area of a utility easement on a 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. 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. W.E. Association 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, (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.”

Appellate Proceeding

            On appeal, the plaintiff argued that summary judgment was improper because she was an implied invitee on the property. She claimed that the paver stones were open to the public and were utilized by the public as a convenient pathway between the shopping center and the nearby residences. Alternatively, she argued that factual issues regarding her status on the property created a question for the jury.

 

The 4th DCA first analyzed the classification of visitors. Under the common law, a visitor who enters the private property of another falls within one of three classifications: an invitee, a licensee or a trespasser. The classification of the entrant is significant because the duty of care owed by the landowner varies according to the visitor’s status. The only duty a landowner owes to a trespasser or uninvited licensee is “to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.”

An invitee is a visitor on the premises by invitation, either express or reasonably implied, of the owner. An “invitation” means that “the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.”§768.075(3)(a)1., Fla. Stat.(2011). However, erecting “No Trespassing” signs is purely optional to a landowner so the absence of such signs does not mean that a landowner has impliedly invited the public on the land. In determining whether one attains the status of invitee, Florida courts apply the “invitation test,” as follows:

[T]he invitation test bases “invitation” on the fact that the occupier by his arrangement of the premises or other conduct has led the entrant to believe the premises were intended to be used by visitors for the purpose which this entrant was pursuing, and that such use was not only acquiesced in by the owner or possessor, but that it was in accordance with the intention and design with which the way or place was adopted or prepared.

An uninvited licensee is a person who chooses “to come upon the premises solely for [his or her] own convenience without invitation either expressed or reasonably implied under the circumstances.” An uninvited licensee is neither an invitee nor a trespasser, but rather, a legal status in between whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner.

Finally, the trespasser is a person “who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. A trespasser may be a “discovered trespasser” or an “undiscovered trespasser.” §768.075(3)(a)2 & 3., Fla. Stat.(2011). An undiscovered trespasser, is a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected within 24 hours preceding the accident, by the owner or person in control of the property. A plaintiff’s status on property may be determined as a matter of law in some cases, but in others it may present a factual question for the jury.

The lower court granted summary judgment in favor of the defendant. The undisputed facts established that the plaintiff was, at best, an uninvited licensee, and W.E. Association did not breach any duty it owed to her in her capacity as an uninvited licensee. The plaintiff was on W.E. Association’s property late at night; she was not there to visit any of the businesses in the shopping center, and she was taking a shortcut on the property solely for her own convenience. She was on the easement area without invitation, either expressed or reasonably implied under the circumstances. The court found that no one would reasonably believe that the area near the storm pumps was intended to be used by visitors for the purpose which this entrant was pursuing.

Contrary to the plaintiff’s suggestion, the absence of a “No Trespassing” sign does not constitute an implied invitation by the owner. The court found that the record established that W.E. Association did not breach any duty it owed to the plaintiff as an uninvited licensee or trespasser. First, W.E. Association did not willfully or wantonly harm the plaintiff. Second, the property did not contain any “known dangers” that were not open to ordinary observation. Moreover, even if there were concealed dangers on the property, W.E. Association, was not aware of the plaintiff’s presence on the property until after the incident. The duty to warn an uninvited licensee or trespasser of a concealed danger known to the owner arises only when the owner discovers the entrant’s presence on the property.

Lee County Department of Transportation v. The Island Water Association, Inc. and Annette Cantalupo,

No. 2D16-234 (Fla. 2nd DCA April 19, 2017)

 Facts & Procedural History

On December 5, 2010, the plaintiff was injured when she tripped on a protruding water valve cover (“valve”) while walking on Captiva Drive. The road was commonly used by pedestrians and was owned by Defendant Lee County. Defendant Island Water owned the valves and pipes underneath it. At the time of the accident the asphalt surrounding the valve had separated and sunk such that the asphalt was no longer flush with the valve, causing the valve to protrude above the asphalt.

The plaintiff filed a negligence action against Lee County and Island Water, alleging that Island Water owed her a duty to exercise reasonable care for her safety. Plaintiff also alleged that Water Island negligently maintained the valve, failed to provide warning and failed to correct the condition, among other issues.

Island Water moved in limine to exclude evidence of its subsequent remedial repairs to the asphalt surrounding the valve. Island Water also moved for summary judgment arguing that its only duty was to maintain its equipment. The trial court granted both motions, relying on an agreement between Island Water and Lee County and determined that: (1) Island Water’s only duty to the public was as to its equipment, and (2) Island Water had no duty in a circumstance where there was a depression in the asphalt around the valve and Island Water did not install the asphalt or damage it.

Appellate Proceeding

On appeal, the 2nd DCA reversed and remanded finding that the trial court erred as a matter of law in determining that Island Water had no duty to the public to correct or warn of the protruding valve. This Court had previously decided the issue of duty in Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120, 122 (Fla. 2d DCA 2015).  The issue of duty does not depend on ownership of the property. A party who has control over the premises does have a duty to keep it in repair. As a rule, utilities have a duty to exercise care both in the location or construction and in the use and maintenance of its equipment. Webb v. Glades Elec. Coop., Inc., 521 So. 2d 258, 259 (Fla. 2d DCA 1988). Here, by deciding to operate utilities in a public roadway, Island Water assumed a common law duty to maintain its valves to allow the public to safely navigate on or around them. Even if the valve protruded due to the erosion of the asphalt around it, Island Water is not absolved of its responsibility to keep the public safe from a known tripping hazard. The fact that the valve was protruding made the equipment a hazard. Additionally, the Court held that an agreement between two parties does not necessarily absolve the party from a duty to the public.

The Court held that on remand the evidence of subsequent remedial measures would be admissible at trial to show control in the event that Island Water did deny that it had an ability to control the roadway to make repairs in circumstances when its equipment did not cause the damage. Also, subsequent remedial measures would be admissible for impeachment purposes if an Island Water witness testified it did not have control over the roadway to make repairs to the asphalt.

 Padilla v. Schwartz, 199 So. 3d 516 (Fla. 4th DCA 2016)

Facts & Procedural History

 This case materialized following a car accident which occurred on the Florida Turnpike. Padilla testified during a deposition that he was driving within the posted speed limit surrounding a construction zone, and did not see any nearby cars on the road immediately before the accident occurred. He claimed that Schwartz’s car then appeared suddenly in front of him without warning, and though he applied the brakes, he was unable to avoid hitting the back left area of Schwartz’s vehicle.

Padilla subsequently filed a negligence action against Schwartz. When Schwartz moved for summary judgment, Padilla countered that there was evidence—albeit from his own sworn deposition testimony—that there was no car in front of him until Schwartz suddenly invaded his lane, which was more than sufficient evidence to rebut the presumption. After a hearing, the trial court granted Schwartz’s motion for summary judgment, finding that Padilla’s testimony was consistent with a finding that he was negligent, and thereafter rendered final judgment for Schwartz.

 Appellate Proceeding

Marcos Padilla appealed the final summary judgment .The Court first reviewed the presumption standard in Florida. In Florida, “there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor vehicle collision case.” Birge v. Charron, 107 So.3d 350, 353 (Fla.2012). This presumption is “an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation.” Id. at 360–61.

The usefulness of the [rear-end collision] rule is obvious. A plaintiff ordinarily bears the burden of proof of all four elements of negligence—duty of care, breach of that duty, causation and damages. Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. The presumption, however, can be rebutted by evidence from which a jury could conclude that the front driver was negligent and comparatively at fault in the accident.

The Court found that Padilla’s deposition testimony about what he observed prior to the accident constituted evidence regarding Schwartz’s vehicle and her manner of driving. Those statements established that Padilla was focused on the road ahead of him and did not look away, and that there were no cars directly in front of him until Schwartz’s car suddenly appeared. The Court found that his testimony that he did not see the other car until Schwartz invaded his lane, sufficiently rebutted the rear-end presumption, and thus raised a factual question as to whether Schwartz suddenly changed lanes and contributed to the cause of the accident.

The Court found that Padilla sufficiently rebutted the presumption by showing through credible evidence that there was a genuine issue of material fact as to whether Schwartz contributed to causing the accident by suddenly changing lanes. Accordingly, summary judgment in favor of Schwartz was improper and was reversed.

We hope that you found the aforementioned cases both helpful and insightful. Thank you for the opportunity to share these recent case opinions with you.

Very Truly Yours,

JOHN BOND ATKINSON

 LAURA P. GUZMÁN