CIRCLE K CONVENIENCE STORES, INC., ETC., APPELLANTS,
v.
THELMA FERGUSON, APPELLEE
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The appellate court held that the trial judge erred in granting a new trial because the condition causing the injury was open and obvious as a matter of law.
[1] A condition in a parking lot that is open, obvious, common, and ordinarily innocuous as a matter of law does not constitute a hidden dangerous condition.
[2] A trial court errs in granting a new trial when the evidence supports a directed verdict for the landowner.
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Join FLexlaw to unlock all legal intelligenceAn invitee was injured when she stubbed her toe on a ridge between asphalt and concrete in a convenience store's parking lot on a clear day. The trial…
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COWART, Judge.
Landowner, a convenience store with gas pumps, has an asphalt parking lot in which is located areas of concrete which apparently cover underground gasoline tanks. The joint where the asphalt and concrete meet is not perfect, the concrete being at places higher than the asphalt. Invitee stubbed her toe on the ridge between these surfaces and suffered injuries for which she sued the convenience store. The accident occurred at 2:30 p.m. on a dry and sunny day in the open parking lot where nothing obstructed a view of the surface of the parking lot.
At trial, at the close of the invitee’s case, the trial judge directed a verdict for the landowner based on Casby v. Flint, 520 So. 2d 281 (Fla.1988) and Hoag v. Moeller, 82 So. 2d 138 (Fla.1955). Thereafter, however, the court granted invitee’s motion for new trial based on the argument that the jury could have found the edge between the concrete and asphalt constituted a hidden danger under Pensacola Restaurant Supply Co. v. Davison, 266 So. 2d 682 (Fla. 1st DCA 1972).
After a review of the issues and evidence in the case, we hold the trial judge was correct in directing a verdict for the landowner and in error in granting a new trial. Some conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition. In addition to Casby and Hoag, see Schoen v. Gilbert, 436 So. 2d 75 (Fla.1983); Bowles v. Elkes Pontiac Co., 63 So. 2d 769 (Fla.1952); K.G. v. Winter Springs Community Evangelical Congregational Church, 509 So. 2d 384 (Fla. 5th DCA 1987); McAllister v. Robbins, 542 So. 2d 470 (Fla. 1st DCA 1989); Crawford v. Miller, 542 So. 2d 1050 (Fla. 3d DCA 1989); and Prager v. Marks Brothers Co., 483 So. 2d 881 (Fla. 3d DCA 1986). See also, Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989) and Haynes v. Lloyd, 533 So. 2d 944 (Fla. 5th DCA 1988).
The order granting new trial is
REVERSED.
HARRIS and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (32 total)
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Krol v. City OF Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001)…ally permitted to assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their own senses.1 Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990); Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990); see also Rosenfeld; Gorin. This court and others have applied this doctrine to myriad factual situations in which the conditions that caused the injury were “simply so open and obvious, so common and so ordinarily innocuous, th…
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Dandal Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204 (Fla. 5th DCA 2012)…this Court explained: The law provides that some injury-causing conditions are simply so open and obvious that they can be held as a matter of law not to give rise to liability as dangerous conditions. Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990). See also Rosenfeld v. Walt Disney World Co., 651 So. 2d 811 (Fla. 5th DCA 1995); Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992). Important to the appellee’s motion for summary judgment was the attachment of…
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Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990)…d 769, 772 (Fla.1952) (presence of uneven floor levels in public places does not constitute hidden and dangerous condition); Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So. 2d 366, 368 (1942) (same); Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990) (uneven parking lot surface which caused plaintiff to fall not a hidden dangerous condition where trip and fall occurred on dry sunny day and nothing obstructed plaintiffs view). Furthermore, this was not a case where the surroun…
Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983)
- Bowles v. Elkes Pontiac Co., 63 So. 2d 769 (Fla. 1952)
- Casby v. Flint, 520 So. 2d 281 (Fla. 1988)
- Trevino O. Haynes v. L.F. Lloyd, 533 So. 2d 944 (Fla. 5th DCA 1988)
- Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989)
- Hoag v. Moeller, 82 So. 2d 138 (Fla. 1955)
- Gloris Crawford and Edward Crawford v. Miller, 542 So. 2d 1050 (Fla. 3d DCA 1989)
- Felo McALLISTER, III v. Robbins, 542 So. 2d 470 (Fla. 1st DCA 1989)
- K.G. v. Winter Springs Cmty. Evangelical Congregational Church, 509 So. 2d 384 (Fla. 5th DCA 1987)
- Pensacola Rest. Supply Co., Inc. v. Davison, 266 So. 2d 682 (Fla. 1st DCA 1972)