GLENDORA LOMACK, APPELLANT,
v.
RONALD A. MOWREY AND R.H. MOWREY, APPELLEES
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The court held that the trial court erred in granting summary judgment because the open and obvious nature of a hazard does not discharge a landowner's duty to maintain the property in a reasonably safe condition.
[1] A landowner's duty to maintain property in a reasonably safe condition is distinct from the duty to warn of concealed perils.
[2] The fact that a danger is open and obvious may discharge a landowner's duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe cond…
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Join FLexlaw to unlock all legal intelligencePlaintiff Glendora Lomack was injured when she became entangled in exposed computer cables while cleaning a law office owned by the appellees. She sue…
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Glendora Lomack appeals a final summary judgment in a premises liability action. She alleged in her complaint below that while cleaning a law office owned by appellees, she became entangled in some exposed computer cables and fell, resulting in significant injuries. Concluding that the trial court erred in granting summary judgment, we reverse and remand for further proceedings.
Lomack’s claim against appellees rested on the theory that her injuries resulted from appellees’ breach of their duty to maintain their property in a safe condition. In granting summary judgment, the trial court found as follows:
The record which includes the deposition of Plaintiff, Glendora Lomack, reveals that there was no known dangerous condition in existence in the area where Plaintiffs alleged injuries were sustained; that there were no obstacles blocking Plaintiffs view of the open and obvious area where she allegedly fell; that Plaintiff was familiar with the subject area having entered the area on at least 100 occasions prior to the alleged fall; and that .there is no evidence whatsoever of prior similar incidents which would have placed [appellees] on notice of a potential danger in the area where Plaintiff allegedly fell.
As both parties correctly recognize, orders granting summary judgment are reviewed under a de novo standard. See Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). Under Florida Rule of Civil Procedure 1.510, the court may grant summary judgment if there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 1.510(c) provides that a motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Bloch v. Berkshire Ins. Co., 585 So.2d 1137, 1138 (Fla. 3d DCA 1991). Only after these elements are established by the movant does the burden shift to the party opposing the motion to establish existence of a dispute of material fact. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995).
*1092In their motion below, appellees correctly acknowledged that, as landowners, they owed to invitees the duties to: (a) use reasonable care to maintain their premises in a safe condition, and (b) give warning of concealed perils which are or should be known to them, but which are unknown to the invitee and could not have been discovered by the invitee even with the exercise of reasonable care.* See DiMarco v. Colee Court, Inc., 976 So.2d 650, 651 (Fla. 4th DCA 2008); Freeman v. BellSouth Telecomms., Inc., 954 So.2d 45, 46 (Fla. 1st DCA 2007); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991). In their motion for summary judgment, appellees argued that they had no duty to warn because the condition of the wires on the floor was “open and obvious” and “non-dangerous.” Apart from characterizing the condition as “non-dangerous,” however1, the motion did not meaningfully address whether appellees had satisfactorily discharged their duty to maintain the premises in a safe condition.' The reconstructed record of the summary judgment hearing likewise suggests that the arguments and evidence discussed at the hearing went exclusively to the “duty to warn” issue. Not surprisingly, then, the trial court’s order granting summary judgment is grounded on a finding that appellees had no duty to warn of the hazard presented by the loose wires because that hazard was not known to appellees and in any event was open and obvious.
In light of the foregoing, we conclude that the trial court erred in granting summary judgment bottomed upon an incomplete analysis of the relevant issues of fact and law. Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition. See, e.g., Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So.2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577-78 (Fla. 5th DCA 2005); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986); Pittman v. Volusia County, 380 So.2d 1192, 1193-94 (Fla. 5th DCA 1980). Moreover, despite the trial court’s apparent conclusion to the contrary, an invitee’s knowledge of a danger is normally not a complete bar to recovery, but rather only triggers the application of comparative negligence principles. See Kirk v. TJ Palm Beach Assocs. Ltd. P’ship, 976 So.2d 694, 695 (Fla. 4th DCA 2008); Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001); Knight v. Waltman, 774 So.2d 731, 734 (Fla. 2d DCA 2000).
Accordingly, even if the hazard caused by the loose wires were open and obvious and appellees thus had no duty to wai’n appellant of it (a finding the present record would not allow us to embrace at this point), the lower court nonetheless erred by determining appellees’ entitlement to judgment as a matter of law, given the absence of a factually supported finding that appellees also had not breached their duty to maintain their premises in a reasonably safe condition. The order on appeal is therefore REVERSED and the *1093matter REMANDED for further proceedings.
KAHN, THOMAS, and ROBERTS, JJ., concur.
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Burton v. MDC PGA Plaza Corp., 78 So. 3d 732 (Fla. 4th DCA 2012)…on. “Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.” Lomack v. Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009) (citing Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So. 2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005); Lynch v. Bro…
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Tereatha Robinson v. Dep't OF Health, 89 So. 3d 1079 (Fla. 1st DCA 2012)…granted the motion and entered final judgment in favor of DOH. A court may grant summary judgment when “there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.” Lomack v. Mowrey, 14 So. 3d 1090, 1091 (Fla. 1st DCA 2009). The determination that this standard has been met is subject to de novo review. Smith v. New Hampshire Indem. Co., 60 So.Sd 429, 431 (Fla. 1st DCA 2011). To maintain a civil action under the Whistle-blower’s Act, a public…
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Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017)…We are left with a review of the record to determine as a matter of law whether no material issues of fact exist such that summary judgment was appropriate as to Appellees’ duty to maintain the premises. See Fla. R. Civ. P. 1.510; Lomack v. Mowrey, 14 So. 3d 1090 (Fla. 1st DCA 2009). In opposition to the motions for summary judgment, Appellant submitted the affidavit of Jeremy Cummings, Ph.D., as expert opinion in the areas of human factors, biomechanics, and biomedicine. Dr. Cummings’ affidavit stated that…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Pittman v. Volusia Cnty., 380 So. 2d 1192 (Fla. 5th DCA 1980)
- Knight Energy Servs., Inc. v. Amoco OIL Co., 660 So. 2d 786 (Fla. 4th DCA 1995)
- Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574 (Fla. 5th DCA 2005)
- Lynch v. Brown, 489 So. 2d 65 (Fla. 1st DCA 1986)
- Cynda Futch and Willie Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687 (Fla. 1st DCA 2008)
- Knight v. Waltman, 774 So. 2d 731 (Fla. 2d DCA 2000)
- Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737 (Fla. 4th DCA 2001)
- Williams v. Madden, 588 So. 2d 41 (Fla. 1st DCA 1991)
- Gillian Fieldhouse v. TAM Inv. Co., 959 So. 2d 1214 (Fla. 4th DCA 2007)