PAULA JAVITS AND ROBERT JAVITS, HER HUSBAND, APPELLANTS,
v.
RSMO INDEPENDENCE MANAGEMENT CONSULTANTS, INC. D/B/A HOWARD JOHNSON HOLLYWOOD BEACH RESORT, A FLORIDA CORPORATION, APPELLEE
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Paula Javits, a hotel guest, fell at an outdoor shower and sued the hotel owner for negligence. The trial court granted summary judgment for the hotel, but the appellate court reversed, finding that genuine issues of material fact existed regarding whether the unmarked, similarly-colored shower platform constituted a dangerous condition.
Summary judgment was properly reversed because the hotel failed to establish the absence of a genuine issue of material fact regarding negligence. The plaintiff's inability to recall the specific cause of her fall does not mandate summary judgment, and the allegations concerning similar coloring and the proffer of expert testimony regarding improper platform construction raise genuine issues of material fact for a jury.
[1] A plaintiff's inability to recall the specific cause of their fall does not automatically preclude a finding of negligence against a defendant.
[2] Allegations of similar coloring between different floor surfaces and the proffer of expert testimony regarding improper construction are sufficient to raise a genuine iss…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Javits' inability to testify as to the cause of her fall does not mandate summary judgment in the defendant's favor.”
Establishes that a plaintiff's inability to recall the specific cause of an injury does not automatically defeat a negligence claim.
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Join FLexlaw to unlock all legal intelligencePaula Javits fell at an outdoor shower on hotel premises while alone and with no witnesses. She could not specifically recall what caused the fall but…
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STONE, J.
We reverse the entry of a final summary judgment in this negligence action against Appellee, the owner of a resort hotel.
Paula Javits, a guest at the hotel, fell at the outdoor shower located on the hotel premises. She was alone; there were no witness to her fall. She admitted in her deposition that she “went blank.” She had no specific recollection of what caused the fall, but stated that the similarity in color between the raised concrete shower platform and the surrounding floor surface affected her ability to see the step. Photographs of the scene were attached to her deposition. Furthermore, in her answers to interrogatories, Javits stated that she tripped over the raised platform, the platform was unmarked and of the same color concrete as the surrounding walk, and the platform seemed to slope which may have contributed to her fall. At the hearing on the hotel’s motion for summary judgment, Javits’ attorney proffered that an expert would be called to testify as to the improper construction of the shower platform.
Summary judgment was granted in favor of the hotel. We reverse because Appellee failed to show the absence of any genuine issue of material fact on the issue of its alleged negligence. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
Javits’ inability to testify as to the cause of her fall does not mandate summary judgment in the defendant’s favor. See Bianchi v. Garber, 528 So. 2d 969 (Fla. 4th DCA 1988). We find the allegation of similar coloring of the different floor surfaces and proffer of expert testimony as to the improper construction of the platform sufficient to raise a genuine issue of material fact as to the hotel’s negligence. See also Sawyer v. Allied Int’l. Holdings, Inc., 707 So. 2d 761 (Fla. 2d DCA 1998); Fletcher v. Petman Enters., Inc., 324 So. 2d 135 (Fla. 3d DCA 1975); Majeske v. Palm Beach Kennel Club, 117 So. 2d 531 (Fla. 2d DCA 1959).
Where the record raises a doubt as to the existence of a material issue of fact, particularly in a negligence action, summary judgment must be reversed. See Johnson v. Circle K Corp., 734 So. 2d 536 (Fla. 1st DCA 1999); Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3d DCA 1977).
Finally, our decision herein is consistent with the numerous opinions that have reversed summary judgment as to a business invitee at a commercial establishment who has alleged that an uneven outdoor floor surface constituted a dangerous condition. See, e.g., Johnson; Rivard v. Grimm, 621 So. 2d 580 (Fla. 4th DCA 1993); Coburn v. Delmonico Hotel Corp., 203 So. 2d 30 (Fla. 3d DCA 1967).
Accordingly, we reverse the summary judgment and remand for further proceedings.
POLEN and GROSS, JJ., concur.
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Slaats v. Sandy Lane Residential, LLC, 59 So. 3d 320 (Fla. 3d DCA 2011)…45 So. 2d 453 (Fla. 3d DCA 1989). In premises liability actions, where issues of fact or differing inferences from the facts exist, Florida courts generally choose to let a jury decide. See, e.g., Javits v. RSMO Independence Mgmt. Consultants, Inc., 738 So. 2d 521 (Fla. 4th DCA 1999); Hadley v. Davjoy, Inc., 613 So. 2d 49 (Fla. 4th DCA 1992); Hogan v. Chupka, 579 So. 2d 395 (Fla. 3d DCA 1991); Fletcher v. Petman Enters., Inc., 324 So. 2d 135 (Fla. 3d DCA 1975); Pensacola Rest. Supply Co. v. Davison, 266 So. 2…
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Richards and Harold Richards v. Walt Disney World Co., 139 So. 3d 476 (Fla. 5th DCA 2014)…ment entered in this trip-and-fall case. We conclude that questions of fact exist as to what caused Appellant to trip and whether the object that caused the trip and fall was open and obvious. See Javits v. RSMO Independence Mgmt. Consultants, Inc., 738 So. 2d 521 (Fla. 4th DCA 1999); Abes v. Publix Supermarkets, Inc., 610 So. 2d 709 (Fla. 4th DCA 1992). REVERSED and REMANDED. TORPY, C.J., SAWAYA and WALLIS, JJ., concur.…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Majeske v. Palm Beach Kennel Club, 117 So. 2d 531 (Fla. 2d DCA 1959)
- Mejiah v. Olivio Rodriguez & Integon Indem. Corp., 342 So. 2d 1066 (Fla. 3d DCA 1977)
- Fletcher v. Petman Enters., Inc., 324 So. 2d 135 (Fla. 3d DCA 1975)
- Bianchi v. Garber, 528 So. 2d 969 (Fla. 4th DCA 1988)
- Johnson v. Circle K Corp., 734 So. 2d 536 (Fla. 1st DCA 1999)
- Sawyer v. Allied Int'l Holdings, Inc., 707 So. 2d 761 (Fla. 2d DCA 1998)
- Rivard v. Grimm, 621 So. 2d 580 (Fla. 4th DCA 1993)
- Doris K. Coburn and her husband v. Delmonico Hotel Corp., 203 So. 2d 30 (Fla. 3d DCA 1967)