MARJORIE WOLFORD AND FREDERICK WOLFORD, APPELLANTS,
v.
RONALD VAN OSTENBRIDGE AND JACKIE VAN OSTENBRIDGE, APPELLEES

Fla. 2d DCA | 2003-10-03
No. 2D03-274
FULMER, J., and DANAHY, PAUL W., Jr., Senior Judge, Concur.
861 So. 2d 455 Florida District Court of Appeal, Second District (2003) Positive Treatment
Cited by 16 cases

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Synopsis

In this premises liability appeal, the Wolfords challenged a summary judgment for the Van Ostenbridges after the trial court improperly weighed expert testimony regarding negligent swing installation. The appellate court reversed, holding that genuine issues of material fact precluded summary judgment and that weighing expert credibility is a jury function.


Holding

Summary judgment was improper. The trial court erred in weighing the expert's testimony and questioning its reasonableness, as credibility determinations are exclusively a jury function. Once expert evidence establishes that the owner created a dangerous condition through negligent installation, genuine issues of material fact exist precluding summary judgment.


Headnotes

[1] A property owner owes an invitee the duty to use reasonable care in maintaining the property in a reasonably safe condition.

[2] A property owner owes an invitee the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered…

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Key Quotes

“An owner who creates a dangerous condition already has breached the duty to use reasonable care in maintaining the property in a reasonably safe condition regardless of the owner's knowledge of the dangerousness of the condition.”

Establishes that knowledge is irrelevant when owner creates the danger through negligent acts

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Facts & Procedural History

Marjorie Wolford was injured when a swing on the Van Ostenbridges' front porch suddenly fell while she was sitting on it. The Wolfords filed suit alle…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Marjorie and Frederick Wolford challenge the trial court’s summary final judgment entered in favor of Ronald and Jackie Van Ostenbridge in a premises liability action. We reverse because we conclude that a genuine issue of material fact remains.

These proceedings arose when Marjorie Wolford, who was sitting on a swing on the Van Ostenbridges’ front porch, was injured when the swing suddenly fell. The Wol-fords filed a two-count complaint, alleging in count one that the Van Ostenbridges, as property owners, breached the duty they owed to Marjorie Wolford as an invitee by negligently installing the porch swing that caused her injuries. Count two contained Frederick Wolford’s loss of consortium claim.

The Van Ostenbridges filed a motion for summary judgment alleging that there was no proof either that they had failed to maintain their premises in a reasonable manner or that they had notice of the dangerous condition. In opposition, the Wolfords filed the affidavit of a general contractor, who after reviewing Jackie Wolford’s deposition and pictures of the swing and the porch area, opined that the swing fell because it had been improperly installed. Specifically, the affidavit concluded that the screws used to hang the swing were too small, that the screws were improperly placed in the beam, and that the swing should have been supported with bolts and nuts rather than screws. In addition to the affidavit, the court also had before it the deposition testimony of the same general contractor. Based on the record before it, the trial court granted the motion for summary judgment in favor of the property owners.

The trial court found that there was no evidence in the record to establish that the swing was negligently installed or that the swing fell due to negligent installation. The Wolfords moved for rehearing, arguing that the court had failed to consider the affidavit and deposition of their expert witness.

The trial court denied the motion for rehearing, stating that while it had considered the pleadings, depositions, and affidavits, it gave “no weight” to the affidavit or the testimony of the Wolfords’ expert. The Wolfords now challenge the final summary judgment entered pursuant to these rulings.

A property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care. Knight v. Wattman, 774 So. 2d 731 (Fla. 2d DCA 2000). These are two distinct duties. An owner who creates a dangerous condition already has breached the duty to use reasonable care in maintaining the property in a reasonably safe condition regardless of the owner’s knowledge of the dangerousness of the condition.

Thus, once it is determined that the owner created the danger, knowledge of that dangerousness is irrelevant. See Riles v. Robinson, 548 So. 2d 295 (Fla. 4th DCA 1989) (holding that the owner’s knowledge of the dangerousness of the condition is not an issue if the condition was created by the owner); cf. Knight, 774 So. 2d 731 (holding that even if the invitee has knowledge of the condition that is-equal or superior to the knowledge of the owner, thus relieving the owner of the duty to warn, the owner may still be held liable if it is shown that the owner created the condition).

The Wolfords alleged in the trial court that the Van Ostenbridges created a dangerous condition by negligently installing the swing. In support, they point to the expert’s affidavit and deposition, both of which described the installation as negligent.

The trial court, however, questioned the reasonableness of this opinion based on the expert’s answers to deposition cross-examination. It was improper for the trial court to weigh the expert’s testimony; that is a function for the jury as finder of fact. See Bradford v. Bernstein, 510 So. 2d 1204 (Fla. 2d DCA 1987). The mere fact that the expert testified that the swing was negligently installed creates genuine issues of material fact and renders summary judgment improper. See Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995).

Accordingly, we reverse.

Reversed and remanded for further proceedings.

FULMER, J., and DANAHY, PAUL W., Jr., Senior Judge, Concur.


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Cited By

  • Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574 (Fla. 5th DCA 2005)
    …notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee.” Hylazewski v. Wet ’N Wild, Inc., 432 So. 2d 1371, 1372 (Fla. 5th DCA 1983) (citation omitted); see Wolford v. Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003) (recognizing that these two duties are “distinct”); Lynch v. Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986) (recognizing that these two duties are “alternative”). We have noted that in addition to alleging negligence based on b…
  • Torres v. John E. Sullivan, Jr., M.D., 903 So. 2d 1064 (Fla. 2d DCA 2005)
    …of care applicable to Dr. Sullivan under the circumstances of this case. Either way, the trial court erred. In ruling on a motion for summary judgment, it is improper for the trial court to weigh the expert’s testimony. See Wolford v. Ostenbridge, 861 So. 2d 455, 457 (Fla. 2d DCA 2003). It is the jury that will have to decide whether to accept or reject Dr. Schifrin’s opinion regarding what the standard of care required of Dr. Sullivan. Appellees implicitly recognize that it was improper for the trial cour…
  • Tallent v. Pilot Travel Ctrs., LLC, 137 So. 3d 616 (Fla. 2d DCA 2014)
    …onably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care.” Wolford v. Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003). Tallent was a veteran truck driver, and he immediately noticed the spill on arriving at the station. [*618] He conceded that he had notice of the spill because he saw the trash cans blocking the aisles as he pulled up and he…

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