Trainor v. PNC Bank , 211 So. 3d 366 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JANET TRAINOR,
Appellant,
v. Case No. 5D15-4536
PNC BANK, NATIONAL ASSOCIATION,
KIRBY BROS. CONSTRUCTION, INC.
AND LEE WILLIAMS & ASSOCIATES, INC.,
Appellees.
_____________________________________/
Opinion filed March 3, 2017
Appeal from the Circuit Court
for Volusia County,
William A. Parsons, Judge.
David M. Russell, of Pappas & Russell,
P.A., Daytona Beach, for Appellant.
T’anjuiming A. Marx and Robert J.
Rubin, of Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A., Maitland,
for Kirby Bros. Construction, Inc.,
Appellee.
Daniel S. Liebowitz and Kelley
Kronenberg, of the Law Firm of Kelly
Kronenberg, Orlando, for PNC Bank,
National Association, Appellee.
Derek J. Angell and Ryan P. Scordato,
of O'Connor & O'Connor, LLC, Winter
Park, for Lee Williams & Associates,
Inc., Appellee.
JACOBUS, B.W., Senior Judge.
Janet Trainor appeals final summary judgments granted to PNC Bank, National
Association (PNC), Kirby Brothers Construction, Inc. (Kirby) and Lee Williams &
Associates, Inc. (Williams), collectively Appellees, in her action for damages for the
alleged injuries she suffered when she stepped into a pothole in a parking lot serving
customers of PNC Bank. We reverse after concluding that the obvious danger doctrine
does not discharge an owner’s or possessor’s duty to maintain its premises in a
reasonably safe condition, and that material issues of fact remain precluding summary
judgment.
Ms. Trainor drove to a nearby PNC branch location intending to make a deposit
with the drive-through teller on June 20, 2012. She arrived to a closed bank and opted
to make her deposit through the bank's outdoor ATM. After parking her car, Ms. Trainor
discovered that the area was under construction, as there was a barricade in front of the
ATM and, according to her, a sign with an arrow and red lettering, directing customers to
walk around. Ms. Trainor complied and began to walk around the barricade. While
walking through the parking lot, she stepped in what she described as a pothole. The
unexpected drop in pavement levels caused her foot to get caught and twist, resulting in
a fall that fractured her left foot and leg and injured her neck and back. Although she did
not see the pothole before she stepped in it, Ms. Trainor acknowledges that there was
nothing prohibiting her from looking down and seeing the pothole.
Ms. Trainor filed a complaint against PNC and Kirby, PNC’s general contractor,
presenting two theories of liability—breach of the duty to warn and breach of the duty to
maintain. Kirby filed a third-party complaint against Williams, the company that actually
performed the construction, alleging counts for common law indemnity and/or
contribution, negligence, and equitable subrogation. PNC moved for summary judgment,
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joined by Kirby and Williams, claiming that they were entitled to a judgment as a matter
of law pursuant to the obvious danger doctrine. Ms. Trainor responded that the condition
was not open and obvious and that the doctrine did not absolve PNC of its duty to
maintain. After hearing argument, the trial court concluded that Appellees were entitled
to summary judgment as to all counts based on the obvious danger doctrine.
This court reviews de novo the grant of summary judgment. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In order to determine
the propriety of a summary judgment, this court must resolve whether there is any
“genuine issue as to any material fact” and whether “the moving party is entitled to a
judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for
summary judgment has the burden to prove conclusively the nonexistence of any genuine
issue of material fact.” Krol v. City of Orlando, 778 So. 2d 490, 491–92 (Fla. 5th DCA
2001) (citing City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000)). We
must consider the evidence contained in the record, including any supporting affidavits,
in the light most favorable to the non-moving party, and if the slightest doubt exists, the
summary judgment must be reversed. Id. at 492.
The first inquiry in a negligence action is whether the defendant owed a duty to the
plaintiff. Id. Under the facts of this case, Ms. Trainor occupies the status of an invitee.
“This court has consistently held that the duty owed to invitees is 1) to use ordinary care
in keeping the premises in a reasonably safe condition, and 2) to give timely warning of
latent or concealed perils which are known or should be known by the owner or occupier.”
Id. at 492-93 (citations omitted). The duty to protect others from injury resulting from a
dangerous condition on the premises rests on the right to control access to the property.
Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla. 5th DCA 1999); see
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generally 41 Fla. Jur 2d Premises Liability § 5 (2017). Thus, ownership of the property is
not the determining factor. Rather, it is the failure of a person who is in actual possession
and control (be it the owner, an agent, a lessee, a construction contractor, or other
possessor with authority or control) to use due care to warn or to exclude licensees and
invitees from areas known to the possessor to be dangerous because of operations,
activities, or conditions. Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla. 5th DCA 1988).
Accordingly, PNC, as owner of the parking lot in question, Kirby, as PNC’s general
contractor, and Williams, who performed the construction, may all be jointly liable.
Notwithstanding, Kirby and Williams contend that they did not owe a legal duty to Ms.
Trainor under a premises liability theory. However, this ground was not raised below in
any motion for summary judgment. Accordingly, we decline to affirm summary judgment
on such ground. Loranger v. State, Dep’t of Transp., 448 So. 2d 1036, 1038–39 (Fla. 4th
DCA 1984) (declining, on rehearing, to affirm summary judgment on ground not raised
below, ground being an absence of legal duty); see Agudo, Pineiro & Kates, P.A. v.
Harbert Constr. Co., 476 So. 2d 1311, 1315, n.3 (Fla. 3d DCA 1985) (“[A]s Loranger v.
State, Department of Transportation, 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983), makes
clear, the ‘right for the wrong reason’ appellate maxim does not apply in summary
judgment proceedings where the issue was never raised in the motion for summary
judgment.”).
The only issue raised in PNC's motion for summary judgment, to which Kirby and
Williams filed joinders, was whether Appellees were entitled to judgment as a matter of
law pursuant to the obvious danger doctrine. “The obvious danger doctrine recognizes
that owners and occupiers should be legally permitted to assume that the invitee will
perceive that which would be obvious to them upon the ordinary use of their own senses.”
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Krol, 778 So. 2d at 493 (footnotes, citations omitted). However, while the open and
obvious nature of a hazard may discharge a landowner's or possessor's duty to warn, it
does not discharge the landowner’s or possessor's duty to maintain the property in a
reasonably safe condition. Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla.
5th DCA 2012) (citation omitted); see also Burton v. MDC PGA Plaza Corp., 78 So. 3d
732, 734 (Fla. 4th DCA 2012) (“Florida courts have long held that a landowner’s duty to
warn is separate and distinct from the duty to maintain the premises in a reasonably safe
condition. ‘Case law consistently recognizes that the fact that a danger is open and
obvious may operate to discharge a landowner’s duty to warn, but it does not discharge
the duty to maintain the property in a reasonably safe condition.’” (quoting Lomack v.
Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009)); Aaron v. Palatka Mall, LLC, 908 So.
2d 574, 577 (Fla. 5th DCA 2005) (“We have noted that in addition to alleging negligence
based on breach of the duty to warn of the alleged dangerous condition, Aaron also
alleges that Palatka Mall breached its duty to keep the premises in a reasonably safe
condition. The fact that Aaron alleges breach of both duties is significant because the
courts generally agree that the obvious danger doctrine does not apply when negligence
is predicated on breach of the duty to maintain the premises in a reasonably safe
condition.”); Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624, 632 (Fla. 5th DCA
2003) (“The fallacy is in the premise that the discharge of the occupier's duty to warn by
the plaintiff's actual knowledge necessarily discharges the duty to maintain the premises
in a reasonably safe condition by correcting dangers of which the occupier has actual or
constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from
recovery by negating a landowner's or occupier's duty to invitees to maintain his premises
in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v.
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Jones, 280 So. 2d 431 (Fla. 1973), that liability should be apportioned according to fault.”
(citation omitted)); see generally Benjamin Jilek, The “Open and Obvious” Defense and
Summary Judgment in Premises Liability Claims, 25 Trial Advoc. Q. 36, 37 (2006) (“The
[other] duty owed by a landowner or occupier to an invitee is to use reasonable care to
maintain the premises in a reasonably safe condition. In contrast to popular belief among
many trial attorneys and judges, the duty to maintain is not related to, or discharged along
with, the duty to warn. Instead, it is a distinct duty that does not depend on whether or
not the condition was open and obvious: A plaintiff's knowledge of a dangerous condition
does not negate a defendant's potential liability for negligently permitting the dangerous
condition to exist; it simply raises the issue of comparative negligence and precludes
summary judgment.” (footnotes, citations and internal quotations omitted)).
Further, “[w]hen an injured party alleges that the owner or possessor breached the
duty to keep the premises in a reasonably safe condition, an issue of fact is generally
raised 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 open and obvious.” Aaron, 908 So. 2d at 578 (citing Lotto v. Point E. Two Condo.
Corp., 702 So. 2d 1361, 1362 (Fla. 3d DCA 1997)). The length of time the pothole may
have existed, whether the pothole had existed for a sufficient length of time to put
Appellees on actual or constructive notice of its existence, such as might constitute
negligence for the Appellees’ alleged failure to make timely repairs are material issues of
fact that remain. Turner v. Winn-Dixie Food Stores, Inc., 651 So. 2d 827, 828 (Fla. 5th
DCA 1995) (citing Barrett v. State Dep’t of Transp., 546 So. 2d 1175 (Fla. 4th DCA 1989);
Martin v. Consol. City of Jacksonville, 483 So. 2d 804 (Fla. 1st DCA 1986)). Accordingly,
the trial court erred in entering summary judgment in regards to the theory alleged by Ms.
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Trainor that Appellees breached their duty to maintain the premises in a reasonably safe
condition. Cf. Aaron, 908 So. 2d at 578 (“[W]e do not think that the obviousness of the
condition relieved the condominium association of the duty to repair it . . . . We think there
remains a factual issue whether the association should anticipate that condominium
residents would use the sidewalk and proceed to encounter the cracked and uneven
concrete, notwithstanding that the condition was obvious, and would be harmed thereby.”
(quoting Lotto, 702 So. 2d at 1362)); accord De Cruz-Haymer v. Festival Food Mkt., Inc.,
117 So. 3d 885, 888 (Fla. 4th DCA 2013) (“When an injured party alleges that the owner
or possessor breached the duty to keep the premises in a reasonably safe condition, an
issue of fact is generally raised 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 open and obvious.” (quoting Aaron, 908 So. 2d at
578)). “Moreover, when the failure to maintain premises is alleged, the obvious nature of
the danger creates an issue of fact regarding the plaintiff's own comparative negligence.”
De Cruz-Haymer, 117 So. 3d at 888 (citing Burton, 78 So. 3d at 735; Fieldhouse v. Tam
Inv. Co., 959 So. 2d 1214, 1216 (“A plaintiff's knowledge of a dangerous condition . . .
simply raises the issue of comparative negligence and precludes summary judgment.”)).
For the reasons stated herein, we reverse the final summary judgments entered in
favor of PNC, Kirby and Williams and remand this case for further proceedings.
REVERSED AND REMANDED.
SAWAYA and EDWARDS, JJ., concur.
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