ROBERT KAGAN, APPELLANT,
v.
IRVING S. EISENSTADT, D/B/A ESCOTT CONSTRUCTION CO., AND FEM CORPORATION, A FLORIDA CORPORATION, APPELLEES
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Kagan, a lumber salesman, was injured when he fell through an open stairwell while on a construction site to solicit a sale. The court affirmed summary judgment for the property owners, holding that the danger was obvious and no duty to warn existed for patent hazards on a partially constructed building.
Property owners must exercise ordinary care and warn of latent (hidden) defects known or reasonably discoverable, but have no duty to warn of visible and obvious hazards. When an invitation is extended to enter a building under construction, the invitee assumes the risk of conditions typical of that stage of construction. Summary judgment was properly entered as a matter of law.
“It is incumbent upon the person in control of the premises to exercise ordinary care for the safety of business invitees and to warn them of any latent defects known to him, or by the exercise of due care should have been known to him, that might cause injury if encountered.”
Establishes the general duty owed to business invitees but limits it to latent (non-obvious) defects.
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Join FLexlaw to unlock all legal intelligenceKagan, an experienced lumber salesman, visited a construction site on Miami Beach to sell lumber. The property owner Eisenstadt asked him to count raf…
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HORTON, Judge.
Summary judgment was entered by the lower court against the appellant and this appeal is from that judgment. The facts were established by the appellant’s deposition and are not in dispute.
Appellees were in the process of constructing apartment buildings on Miami Beach when the appellant, an experienced lumber salesman, came upon the premises in an attempt to sell some lumber. He had visited the job site regularly and was familiar with the plans of the buildings. The appellant succeeded in obtaining an order from appellee, Eisenstadt, who requested that he count the number of rafters and ceiling joists needed to complete the job. Before entering the building, the appellant inquired as to whether the building was safe and Eisenstadt informed him that it was, that the subflooring was in but to watch out for the open stairwell. Appellant climbed an outside stairway, entered the building and proceeded to count the rafters. As he passed the stairwell, his foot caught in a hole, he lost his balance and fell through the open stairwell. The appellant testified, by way of deposition, that he was not looking any particular place but just walking along in a normal manner. It is not disputed that the appellant had entered the premises for the purpose of making a lumber sale and that he was a business invitee, either by express or implied invitation. It is incumbent upon the person in control of the premises to exercise ordinary care for the safety of business invitees and to warn them of any latent defects known to him, or by the exercise of due care should have been known to him, that might cause injury if encountered. See Hall v. Holland, Fla.1950, 47 So. 2d 889. This rule must be considered in light of all the facts and circumstances of a particular case. When an invitation is made to use the facilities of premises under construction, the invitation is made subject to the conditions that exist and the invitee must assume the risk of such conditions. 65 C.J.S. Negligence § 50, p.
545. It is reasonable to expect to encounter conditions which do not offer the safeguards of a completely constructed building when entering a building only partially constructed. See Hickory House, Inc., v. Brown, Fla.1955, 77 So. 2d 249; Hall v. Holland, supra; cf. Forgione v. Frankini Construction Co., 1941, 308 Mass. 29, 30 N.E. 2d 819; Gainey v. Peabody, 1913, 213 Mass. 229, 100 N.E. 336; Doremus v. Auerbach, 176 App.Div. 512, 163 N.Y.S.
239. The appellant was aware of the fact that only the subflooring had been laid and it would not be unreasonable to encounter a hole in the floor at that stage of construction.
The obligation of the proprietor of the premises is to warn of latent dangers, i. e., those which are not apparent from a casual observation of the premises. The Supreme Court of Florida has continually adhered to the proposition that requires a person to see what is there to be seen by the ordinary use of his senses, and if it ,is there to be seen, it is deemed, in law, to have been seen. See Earley v. Morrison Cafeteria Co. of Orlando, Fla.1952, 61 So. 2d 477; Petti-grew v. Nite-Cap Inc., Fla.1953, 63 So. 2d 492. There is no duty to warn one of visible and obvious-hazards. See Bowles v. Elkes Pontiac Co., Fla.1952, 63 So. 2d 769. The very allegations of the complaint and the testimony of the appellant by way of deposition foreclose any factual dispute as to the cause of the accident and left nothing for a jury to decide.
There-being no genuine issue as to any material fact, the question of negligence was properly resolved by the lower court, as a matter of law, and we find no error in the summary judgment entered.
Affirmed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Isenberg v. Ortona Park Recreational Ctr., Inc., 160 So. 2d 132 (Fla. 1st DCA 1964)…at every person owes himself the duty to see what is plainly to be seen by the ordinary use of his senses and the law charges a person with having seen what he could have seen had he looked.” In the later case of Kagan v. Eisenstadt, (Fla.App.1957) 98 So. 2d 370, the Third District Court of Appeal reviewed and affirmed summary judgment entered in favor of a defendant in a personal injury action brought by plaintiff. Plaintiff, a business invitee on defendant’s premises, was walking across the floor of a bui…1 / 3
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Grall v. Risden, 167 So. 2d 610 (Fla. 2d DCA 1964)…ing to warn the plaintiff and the latter would be contributorily negligent for failing to observe that which is obvious. “Latent dangers” are those which are not apparent from a casual observation of the premises, Kagan v. Eisenstadt, Fla.App.1957, 98 So. 2d 370. To constitute a hidden danger it must be hidden from the knowledge as well as from the sight and must be one which could not be discovered by the exercise of reasonable care. They are those dangers not seen or perceptible to the senses by their pre…
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Kala Invs., Inc. v. Sklar, 538 So. 2d 909 (Fla. 3d DCA 1989)…and architects as well as contractors,, the original wrongdoer is not relieved of liability if the defect is found to be “latent,” that is, not apparent by use of one’s ordinary senses from a casual observation of the premises, Kagan v. Eisenstadt, 98 So. 2d 370, 371 (Fla. 3d DCA 1957), or “hidden from the knowledge as well as from the sight and ... not [discoverable] by the exercise of reasonable care,” Grail v. Risden, 167 So. 2d 610, 613 (Fla. 2d DCA 1964). See also Simmons v. Owens, 363 So. 2d 142 (Fla.…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Abarca v. Bass Pro Outdoor World, LLC (Fla. 3d DCA 2025)
- Hall v. Holland, 47 So.2d 889 (Fla. 1950)
- Bowles v. Elkes Pontiac Co., 63 So. 2d 769 (Fla. 1952)
- Hickory House, Inc. v. Brown, 77 So. 2d 249 (Fla. 1955)
- Jeffry Corp. v. City OF Miami Beach, 63 So. 2d 492 (Fla. 1953)