Parker v. Shelmar Property Owner's Association, Inc., 274 So.

3d 1219 (2019)
44 Fla. L. Weekly D1601

[2] Negligence Necessity and Existence of

274 So.3d 1219 Duty
District Court of Appeal of Florida, Fifth District.
Negligence Breach of Duty
Sherrye PARKER, Appellant, To establish a lack of negligence in premises
v. liability litigation, a landowner must demonstrate
SHELMAR PROPERTY OWNER'S that there is no duty owed to the invitee or that it
ASSOCIATION, INC., Karl Burgunder did not breach a duty which is owed.
and Sheila Burgunder, Appellees.

Case No. 5D18-2105 [3] Negligence Conditions known or obvious

| in general
Opinion filed June 21, 2019 The open and obvious danger doctrine does not
completely discharge a property owner's duty
Synopsis
to maintain the premises in a reasonably safe
Background: Pedestrian brought action against owner of
condition.
parking lot after she tripped over wheel stop and sustained
injuries. The Circuit Court, Seminole County, Michael J. 1 Cases that cite this headnote
Rudisill, J., granted summary judgment in favor of owner.
Pedestrian appealed.
[4] Judgment Tort cases in general
When an injured party alleges a breach of the
landowner's duty to maintain the premises in a
[Holding:] The District Court of Appeal, Grosshans, J., held
reasonably safe condition, factual issues that will
that genuine issue of material fact regarding whether parking
preclude summary judgment frequently exist as
lot owner violated duty to maintain premises in reasonably
to whether the condition was dangerous and
safe condition precluded summary judgment.
whether the owner or possessor should have
anticipated that the dangerous condition would
Reversed and remanded. cause injury despite the fact it was open and
obvious.
Lambert, J., concurred specially and filed opinion.
1 Cases that cite this headnote

Procedural Posture(s): On Appeal; Motion for Summary

Judgment. [5] Judgment Tort cases in general
Genuine issue of material fact regarding whether
parking lot owner violated duty to maintain
West Headnotes (5)
premises in reasonably safe condition by
allegedly placing wheel stop near or at egress of
[1] Negligence Duty to warn building precluded summary judgment in favor
Negligence Care required in general of lot owner in action brought against lot owner
by pedestrian, who tripped over wheel stop.
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
Appeal from the Circuit Court for Seminole County, Michael
occupier.
J. Rudisill, Judge.

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Parker v. Shelmar Property Owner's Association, Inc., 274 So.3d 1219 (2019)
44 Fla. L. Weekly D1601

stop in front of the walkway created a dangerous condition,

Attorneys and Law Firms violated the Florida Building Code, and did not follow
the Standard Practice for Safe Walking Surfaces, which
Steven J. Tomesko, of Dan Newlin & Partners, Orlando, for
he explained was “an industry standard for construction
Appellant.
guidelines and minimum maintenance criteria for new and
John R. McDonough, of Meier, Bonner, Muszynski, O'Dell existing buildings and structures.”
& Harvey, P.A., Longwood, for Appellee, Shelmar Property
Owner's Association, Inc. Before the scheduled hearing on the motion, the trial court
granted summary judgment in favor of Appellee. Appellant
No Appearance for other Appellees. filed a motion for rehearing, which the court summarily
denied. This appeal timely followed.
Opinion
“Summary judgment is proper if there is no genuine issue
GROSSHANS, J.
of material fact and if the moving party is entitled to a
*1220 Sherrye Parker (Appellant) appeals a final summary judgment as a matter of law.” Volusia Cty. v. Aberdeen at
judgment in favor of Shelmar Property Owner's Association, Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing
Inc. (Appellee). Concluding that material issues of fact remain Menendez v. Palms W. Condo. Ass'n, 736 So. 2d 58 (Fla. 1st
regarding Appellee's duty to maintain the premises in a DCA 1999)). Accordingly, we review de novo the trial court's
reasonably safe condition, we reverse and remand for further decision to grant summary judgment. Id. When reviewing an
proceedings. order granting summary judgment, “[a]n appellate court must
examine the record in the light most favorable to the non-
Appellant sustained injuries when she tripped on a wheel stop moving party.” Vander Voort v. Universal Prop. & Cas. Ins.
in Appellee's parking lot. Based on this incident, Appellant Co., 127 So. 3d 536, 538 (Fla. 4th DCA 2012).
filed an action for damages. She alleged that Appellee had a
duty to maintain the premises in a reasonably safe condition *1221 [1] [2] A landowner owes an invitee a duty to: (1)
and that the specific placement of the wheel stop breached “use ordinary care in keeping the premises in a reasonably
that duty, resulting in her injury. safe condition,” and (2) “give timely warning of latent or
concealed perils which are known or should be known by the
After conducting discovery, Appellee moved for summary owner or occupier.” Krol v. City of Orlando, 778 So. 2d 490,
judgment, arguing entitlement to judgment as a matter of law 492 (Fla. 5th DCA 2001). To establish a lack of negligence,
pursuant to the open and obvious danger doctrine. Appellee the landowner must demonstrate that there is no duty owed
further claimed that it did not breach the duty to maintain to the invitee or that it did not breach a duty which is owed.
the premises in a reasonably safe condition because invitees See Smith v. Grove Apartments, LLC, 976 So. 2d 582, 586
should be reasonably expected to see wheel stops and protect (Fla. 3d DCA 2007).
themselves. In support of its summary judgment motion,
Appellee attached the affidavit of Karl Burgunder, a former [3] [4] In the summary judgment motion, Appellee's
party to the case. Among other things, Burgunder asserted defense rested primarily on the open and obvious danger
that the wheel stops were in place when Appellee obtained the doctrine. However, this doctrine does not completely
property, the area was well-maintained, and there had been no discharge the property owner's duty to maintain the premises
reports of any prior accidents related to the wheel stops. in a reasonably safe condition. See Trainor v. PNC Bank,
N.A., 211 So. 3d 366, 368 (Fla. 5th DCA 2017). Furthermore,
Appellant filed a response to the summary judgment motion, when an injured party alleges a breach of the duty to maintain
arguing that Appellee “violated Chapter 10, Section 1002.1 the premises in a reasonably safe condition, factual issues
of the Florida Building Code, by placing the subject parking frequently exist “as to whether the condition was dangerous
bumper in the pathway of an ingress and egress into the and whether the owner or possessor should have anticipated
subject building.” In support of her response, Appellant that the dangerous condition would cause injury despite the
attached photos of the parking lot, wheel stop, and building fact it was open and obvious.” Aaron v. Palatka Mall,
entry. Additionally, she attached the affidavit of a forensic L.L.C., 908 So. 2d 574, 578 (Fla. 5th DCA 2005); see also
engineer, who maintained that the placement of the wheel

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Parker v. Shelmar Property Owner's Association, Inc., 274 So.3d 1219 (2019)
44 Fla. L. Weekly D1601

Burton v. MDC PGA Plaza Corp., 78 So. 3d 732 (Fla. 4th

DCA 2012).
BERGER, J., concurs.
[5] Here, Appellant claimed that the placement of the
LAMBERT, J., concurs specially, with opinion.
wheel stop near or at the egress of the building created
an unreasonably dangerous condition. Her expert's affidavit LAMBERT, J., concurring specially.
supported this claim. Specifically, her expert opined that the *1222 I fully concur with the majority opinion. I write
placement of the wheel stop constituted a dangerous condition separately to note that, although not argued by Appellant,
in violation of the Florida Building Code and industry safety the trial court committed fundamental error by granting
standards. Evidence of a building code violation is prima facie Appellee's dispositive motion for final summary judgment
evidence of negligence. See Holland v. Baguette, Inc., 540 So.
without holding a hearing as required under Florida Rule
2d 197, 198 (Fla. 3d DCA 1989).
of Civil Procedure 1.510(c). See Chiu v. Wells Fargo Bank,
N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018) (holding that
Viewing the record in the light most favorable to Appellant,
the trial court committed fundamental error in entering final
we find a material issue of fact exists as to whether Appellee
summary judgment in favor of the movant without conducting
violated the duty to maintain the premises in a reasonably safe
condition. Therefore, summary judgement was improper. 1 a hearing as provided by rule 1.510(c)).

Accordingly, we reverse the final summary judgment entered

All Citations
in favor of Appellee and remand for further proceedings.
274 So.3d 1219, 44 Fla. L. Weekly D1601
REVERSED and REMANDED.

Footnotes

1 In its order granting summary judgment, the trial court cited two cases to support its decision. First, in
Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415 (Fla. 1st DCA 2013), a woman tripped over a parking
lot wheel stop. Id. at 416. In support of the motion for summary judgment, Home Depot included an expert
engineer's report, surmising there were no code violations in the parking lot. Id. In response, the plaintiff's
expert offered only a conclusory statement that the parking lot could be maintained in a safer condition, but
did not allege any specific guideline or code violations. Id. The district court upheld the order granting
summary judgment, noting that an expert's personal preferences could not establish a genuine issue of
material fact without reference to the requirements of any law, code, regulation, or recognized industry safety
standard. Id. at 418. This case is distinguishable from Ramsey as Appellant's expert maintains that the
placement of the wheel stop violated a specific Florida Building Code and industry safety standard, resulting
in an unreasonably dangerous condition.
Second, the trial court relied on Hunt v. Slippery Dip of Jacksonville, Inc., 453 So. 2d 139 (Fla. 1st DCA
1984), in which the First District upheld summary judgment in a negligence case. Id. at 139. Hunt
focused on the plaintiff's knowledge of the danger and the landowner's duty to warn, but did not discuss
the duty to maintain the premises in a reasonably safe condition. Thus, Hunt's reasoning did not support
the summary judgment below.

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Parker v. Shelmar Property Owner's Association, Inc., 274 So.3d 1219 (2019)
44 Fla. L. Weekly D1601

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4