LORENE B. COMBS, ET VIR, APPELLANTS,
v.
AETNA INSURANCE COMPANY, ETC., ET AL., APPELLEES
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A couple injured in a slip and fall in a shopping center parking lot appealed summary judgment against them. The court held that while a restaurant tenant may not control the parking lot, he could still have a duty to warn of dangerous conditions he knew about, and reversed summary judgment to allow the case to proceed.
Control is not the sole basis for liability in slip and fall actions. A restaurant tenant can have a duty to warn of dangerous conditions in a common parking lot if he had actual or constructive knowledge of such conditions, even if he did not control the parking lot.
[1] A tenant may have a duty to warn patrons of a dangerous condition in a common parking lot, even if the tenant does not exercise control over the parking lot.
[2] A tenant's duty to warn patrons of a dangerous condition in a common parking lot arises if the tenant has actual or constructive knowledge of the condition.
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Join FLexlaw to unlock all legal intelligence“control is not the sole basis for liability in a slip and fall action against a landlord and a tenant”
Establishes the core legal principle that overturns the trial court's reasoning and allows liability even without control of the premises
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Join FLexlaw to unlock all legal intelligenceMr. and Mrs. Combs dined at Villa Capri Restaurant in a shopping center and fell in the common parking lot while walking to their car at approximately…
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DOWNEY, Judge.
Mr. and Mrs. Combs, plaintiffs in a slip and fall action against several defendants, appeal from a final summary judgment in favor of defendant Lavern Quandt, d/b/a Villa Capri Restaurant.
On the evening of February 24,1978, Mr. and Mrs. Combs drove to Mr. Quandt’s restaurant to dine. The restaurant is located along with other businesses in a shopping center. After dining, they left the restaurant at about 7:30 p. m. and started walking toward their car, which was parked in a parking lot that was used in common by all the tenants of the shopping center. Along the way Mrs. Combs fell and suffered serious injuries.
Thereafter, Mrs. Combs and her husband filed a complaint against numerous persons, including the owner of the shopping center and Mr. Quandt. In material part, the complaint alleged that both the owner and Mr. Quandt, who leased the restaurant in question from the owner, were negligent in that they knew or should have known that an elevated divider in the parking lot was not properly marked or lighted, and that they were liable in money damages to Mrs. Combs for her injuries and to Mr. Combs for loss of consortium because they failed to maintain the parking lot in a safe condition and failed to warn of the danger created by the inadequate marking or lighting of the divider. After filing an answer denying any liability, and after extensive discovery was had, Quandt filed a motion for summary judgment on the ground that, as a matter of law, he could not be liable to Mr. and Mrs. Combs because he had no duty relative to anyone using the parking lot since he was not in control of it. The court granted his motion and entered final summary judgment for Quandt and against Mr. and Mrs. Combs.
On appeal the Combses assert there were genuine issues of material fact that precluded the entry of final summary judgment in Quandt’s favor. They argue that even if Quandt exercised no control over the parking lot, he still had a duty to warn them of the dangerous condition in the parking lot.
Although we hold that the circuit court’s implicit summary finding that Quandt exercised no control over the parking lot was correct, we also hold that the entry of final summary judgment was erroneous, since control is not the sole basis for liability in a slip and fall action against a landlord and a tenant. We accept the contention of Mr. and Mrs. Combs that Quandt had a duty to warn them of any dangerous condition in the parking lot if he had actual or constructive knowledge of such a condition. See Monteroso v. Gaudette, 391 N.E. 2d 948 (Mass.App.1979); Hopkins v. F. W. Woolworth Co., 419 N.E. 2d 302 (Mass. App.1981); cf. Roberts v. Tennessee Wesleyan College, 60 Tenn.App. 624, 450 S.W. 2d 21 (1969).
Quandt’s motion for summary judgment did not address the asserted breach of the alleged duty to warn; thus there still remain for determination genuine issues of material fact surfounding the alleged duty to warn. We therefore reverse the final summary judgment in favor of Quandt and remand the cause for further proceedings.
REVERSED AND REMANDED with directions.
BERANEK and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Levy v. Home Depot, Inc., 518 So. 2d 941 (Fla. 3d DCA 1987)…ent of Home Depot’s duty to inspect the approaches to the store and the surrounding areas for hidden dangers. Moreover “control is not the sole basis for liability in a slip and fall action against a landlord and a tenant.” Combs v. Aetna Ins. Co., 410 So. 2d 1377, 1378 (Fla. 4th DCA 1982). In Combs, the reviewing court reversed a summary judgment for a lessee restaurant whose patron tripped and fell over an elevated divider in a common parking lot in a shopping center. Despite the fact that the lessee may no…
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Federated Dep't Stores, Inc. v. DOE, 454 So. 2d 10 (Fla. 3d DCA 1984)…unsel argued that under the lease between Bur-dines and Equity, Equity had the sole responsibility for maintaining and policing the parking area. The trial court denied Burdines’ motion for directed verdict relying upon Combs v. Aetna Insurance Co., 410 So. 2d 1377 (Fla. 4th DCA 1982). Combs held that “control [of a common parking lot] is not the sole basis for liability in a slip and fall action against a landlord and tenant,” id. at 1378 (emphasis added). Combs involved a suit brought by a restaurant patron…
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Publix Super Mkts., Inc. v. Jeffery, 650 So. 2d 122 (Fla. 3d DCA 1995)…ping center tenant [*125] had a duty to warn its business invitees about potential criminal attacks in the parking lot exclusively maintained by the shopping center owner. In particular, we rejected the applicability of Combs v. Aetna Insurance Co., 410 So. 2d 1377 (Fla. 4th DCA 1982), which held that a restaurant owner-tenant of a shopping center had a duty to warn its business invitees of a known dangerous, but static, condition in the adjoining parking lot maintained exclusively by the shopping center owner…
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