EDITH LOTTO AND ALBERT LOTTO, APPELLANTS,
v.
POINT EAST TWO CONDOMINIUM CORPORATION, INC., APPELLEE
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Edith Lotto sued her condominium association for negligence after slipping and falling on a cracked, uneven exterior sidewalk. The trial court granted summary judgment to the association, but the appellate court reversed, holding that even though the sidewalk's deteriorated condition was obvious, a genuine factual issue remained whether the association should have anticipated resident use and taken precautions despite the obvious danger.
The court held that the obviousness of the sidewalk's condition relieved the association of a duty to warn but did not eliminate its duty to repair. A genuine factual issue remained whether the association, as a reasonable entity, should have anticipated that condominium residents would encounter harm from the cracked and uneven concrete notwithstanding its obvious nature.
[1] A condominium association may be liable for negligence in failing to maintain common areas, such as sidewalks, in a reasonably safe condition.
[2] A landowner is not liable to invitees for physical harm caused by a known or obvious danger unless the landowner should anticipate the harm despite such knowledge or obvi…
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Join FLexlaw to unlock all legal intelligence“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”
This Restatement provision establishes the legal framework; the critical language is the exception that liability may attach if the possessor should anticipate harm despite obviousness.
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Join FLexlaw to unlock all legal intelligenceEdith Lotto, a condominium resident, tripped and fell on an exterior sidewalk that was severely cracked and uneven. She had walked over the same sidew…
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COPE, Judge.
Edith and Albert Lotto appeal an adverse summary final judgment in a slip and fall case. We reverse.
Plaintiff-appellant Edith Lotto resides at the Point East Two Condominium. She tripped and fell on a portion of an exterior sidewalk which is cracked and partially uneven. She sued the appellee condominium association for negligence in failing to maintain the sidewalk in a reasonably safe condition, and for failure to warn her of the condition of the sidewalk.*
At deposition, plaintiff admitted that she regularly walked for exercise, and had walked over this same stretch of sidewalk more than fifty times previously. The photographs show that the sidewalk segment is severely cracked and somewhat uneven. The condominium association acknowledged that this stretch of sidewalk had been in the same cracked and détériorated condition for over three years, but took the position that it was not unreasonably dangerous and that there was no negligence in the association’s failure to repair it. The association argued that it had no duty to warn plaintiff of the condition of the sidewalk because the deteriorated condition was obvious. The trial court granted summary judgment in the association’s favor, and this appeal follows. We agree that the association did not owe a duty to warn plaintiff of the condition of the sidewalk under the circumstances present here. Plaintiff had walked over the same stretch of sidewalk many times previously, and knew its condition.
However, we do not think that the obviousness of the condition relieved the condominium association of the duty to repair it. In Ashcroft v. Colder Race Course, Inc., 492 So. 2d 1309 (Fla.1986), the court invoked section 343A of the Restatement (Second) of Torts (1965), which states:
Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
492 So. 2d at 1312 (emphasis supplied in Ashcroft decision). Elsewhere the Ashcroft court also said, “‘In any case where the occupier [of land] as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.’ ” 492 So. 2d at 1311 (quoting Prosser & Keaton, Law of Torts § 61 (5th ed.1984)).
Here we are dealing with one of the sidewalks provided for the use of condominium residents on the condominium grounds. 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. See Hogan v. Chupka, 579 So. 2d 395, 396 (Fla. 3d DCA 1991).
We conclude that summary judgment should not have been entered. Because the plaintiff was thoroughly familiar with the condition of the sidewalk, her decision to proceed to encounter the risk does, of course, raise the question whether she was comparatively negligent. The summary judgment is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
*
Appellant Albert Lotto made a claim for loss of consortium. >
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Cited By (15 total)
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Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574 (Fla. 5th DCA 2005)…rally 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. See Lotto v. Point E. Two Condo. Corp., Inc., 702 So. 2d 1361, 1362 (Fla. 3d DCA 1997) (“[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 re…1 / 2
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Moultrie v. Consol. Stores Int'l Corp., 764 So. 2d 637 (Fla. 1st DCA 2000)…to the invitee through the normal use of his senses, and is not required to give the invitee notice or warning of an obvious danger. See Hall, 47 So. 2d at 891-892; Pertl, 708 So. 2d at 958. See also Lotto v. Point East Two Condominium Corp., Inc., 702 So. 2d 1361, 1362 (Fla. 3d DCA 1997). Section 34A of the Restatement (Second) of Torts (1965), provides: Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land w…
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Kersul v. Boca Raton Cmty. Hosp., Inc., 711 So. 2d 234 (Fla. 4th DCA 1998)…condition.”). However, although the open and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not discharge the duty to maintain the property in a reasonably safe condition. See Lotto v. Point East Two Condominium Corp., 702 So. 2d 1361 (Fla. 3d DCA 1997). Further, Plaintiffs presented evidence that the danger was not open and obvious and that the hospital may have had notice of the dangerous condition through a prior incident. This is sufficient to overcome a motion for summary…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986)
- Hogan v. Chupka, 579 So. 2d 395 (Fla. 3d DCA 1991)