HELEN F. WINSEMANN, APPELLANT,
v.
THE TRAVELODGE CORPORATION, A CALIFORNIA CORPORATION, APPELLEE

Fla. 2d DCA | 1967-12-15
No. 6282
LILES, C. J., and LANE, A. H„ Associate Judge, concur.
205 So. 2d 315 Florida District Court of Appeal, Second District (1967) Positive Treatment
Cited by 12 cases

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Synopsis

The appellate court reviewed a trial court's dismissal of a complaint for failure to state a cause of action, where the plaintiff, a business invitee, alleged negligence due to inadequate lighting and a dangerous curb design in a motel parking lot.


Holding

The appellate court reversed the trial court's dismissal, holding that the amended complaint sufficiently stated a cause of action for negligence, thus creating a fact issue for trial.


Facts & Procedural History

The plaintiff, a business invitee at a motel, stumbled over a curb in the parking lot after alighting from her car. She alleged the motel was negligen…

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Opinion of the Court
HOBSON, Judge.

HOBSON, Judge.

Appellant, plaintiff below, appeals from the entry of a final order and judgment dismissing with prejudice the amended complaint filed against defendant-appellee. The trial court held that plaintiff’s amended complaint failed to state a cause of action and plaintiff declined to plead further.

Plaintiff was a business invitee of the defendant. Upon returning to her room in the defendant’s motel, plaintiff entered a parking lot and space adjacent to the motel provided for parking. The curbing which separated the parking lot from a covered walkway ranged in height from four inches at its westerly terminal to a height of approximately thirteen inches at the easterly end. At the midpoint and at the location of the plaintiff’s fall, the curb was approximately 7% inches in height. The accident occurred in the early evening hours and it was alleged to be after dark. While defendant had lights above the doorway, which were burning at the time of the accident, it was alleged that said lights were inadequate.

The plaintiff parked her car one foot from the curb, alighted from her automobile and proceeded to remove some articles from the rear seat of the car. As plaintiff started toward her room it is alleged that plaintiff misjudged the height of the curb and stumbled over it, hitting her head on an air conditioning unit affixed to the outside of a motel room.

Plaintiff's complaint, among other things, alleges negligence in failing to adequately illuminate the area in such a manner to show the true size, shape and height of the curbing. Further, as to the illumination, the complaint alleged “ * * * the lights thus provided caused shadows to be thrown over the sidewalk, parking space and curbing which shadows actually hid and disguised the true shape, size, and elevation of the curbing * * Plaintiff also alleges the parking area as it existed constituted a trap and defendant failed to warn her of this hidden condition. Specifically, plaintiff alleged that the parking space was so constructed that one alighting from his automobile is misled as to the size, shape and height of the curbing. Plaintiff attached to her complaint a photograph clearly depicting the parking space, curbing and surrounding area.

Defendant filed a motion to dismiss plaintiff’s amended complaint, alleging insufficient facts to show negligence on the part of the defendant and further pleading plaintiff’s contributory negligence as shown in the amended complaint. The trial court granted defendant’s motion to dismiss, stating plaintiff had failed to state a cause of action.

There is little doubt that plaintiff was an invitee of defendant’s place of business. As such, defendant owed plaintiff the duty of keeping its premises in a reasonably safe condition and to guard plaintiff against dangers of which defendant was cognizant or might reasonably have foreseen. McNulty v. Hurley, Fla. 1957, 97 So.2d 185. Further, at this stage of the proceedings the judge must treat all allegations which are well plead as being true. Therefore, under the allegations of the amended complaint, it must be assumed that the defendant knew or should have known of the alleged dangers involved in the construction and the lighting in the area in question. It must be remembered that the defendant had filed no pleadings other than its motion to dismiss. To state a cause of action for negligence plaintiff need only allege sufficient facts or omissions causing the injury and at the same *317time aver that they were negligently done or omitted. 23 Fla.Jur. Negligence, § 104.

Plaintiff’s amended complaint alleged acts of negligence on the part of the defendant; that the defendant knew or should have known that the alleged defects existed; that the plaintiff was injured; that such injuries proximately and directly resulted from the negligent acts of the defendant; and the status of the parties at the time of the occurrence of the injury.

In consideration of the above, after a careful study of plaintiff’s amended complaint we are of the view that the pleadings set forth a cause of action for negligence and show the existence of a fact issue as to whether defendant breached its duty owed to the plaintiff.

The trial court’s order dismissing the amended complaint with prejudice did so on the ground “ * * * that the amended complaint, as further amended, fails to state a cause of action against the defendant * * Although the trial court dismissed the amended complaint with prejudice on the ground that it did not allege negligence on the part of the defendant, the appellee’s brief deals ' solely with the question of whether or not the amended complaint shows on its face that the plaintiff was guilty of contributory negligence as a matter of law.

Assuming that the trial court dismissed the amended complaint with prejudice on the ground as contended by the appellee, to-wit: contributory negligence as a matter of law on the part of the plaintiff as shown on the face of the amended complaint, we must, nevertheless, reverse the trial court’s order and judgment of dismissal under the law as set forth in Miceli v. Lifter, Fla.App.1964, 161 So.2d 253, and City of Jacksonville v. Stokes, Fla.1954, 74 So.2d 278.

Reversed.

LILES, C. J., and LANE, A. H„ Associate Judge, concur.


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Citator

Cited By

  • Fletcher v. Petman Enters., Inc., 324 So. 2d 135 (Fla. 3d DCA 1975)
    …cause before us, we find there exists genuine issues as to material facts, i. e. design of the steps, adequacy of the lighting, etc. See Coburn v. Delmonico Hotel Corp., Fla.App.1967, 203 So. 2d 30; Winsemann v. Travelodge Corporation, Fla.App.1967, 205 So. 2d 315; Robinson v. Kiwanis Club of Delray Beach, Fla.App.1972, 265 So. 2d 387. In addition, we note that although plaintiff was unable to recall precisely what caused her fall, this fact would not entitle defendants to summary judgment in that the record…
  • Robinson v. Kiwanis Club OF Delray Beach, 265 So. 2d 387 (Fla. 4th DCA 1972)
    …nce and contributory negligence were, at the least, in the twilight zone so as to make a jury question as was authorized in Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So. 2d 116, See also Winsemann v. Travelodge Corporation, Fla.App.1967, 205 So. 2d 315. The summary judgment entered in favor of defendants is reversed and the case remanded for proceedings consistent herewith. Reversed and remanded. WALDEN and MAGER, JJ., and MELVIN, WOODROW, Associate Judge, concur.…
  • Green v. Sch. Bd. OF Pasco Cnty., 752 So. 2d 700 (Fla. 2d DCA 2000)
    …whether its failure to illuminate the area or erect a guardrail violated its obligation to maintain the premises in a safe condition. See, e.g., Sawyer v. Allied Int’l Holdings, Inc., 707 So. 2d 761 (Fla. 2d DCA 1998); Winsemann v. Travelodge Corp., 205 So. 2d 315 (Fla. 2d DCA 1967); Reed v. Ingham, 125 So. 2d 301 (Fla. 2d DCA 1960). But the School Board argues, and the circuit court concluded, that these failures were aspects of planning level decisions for which the School Board enjoys sovereign immunity, a…

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