VERMONT MUTUAL INSURANCE COMPANY, D. FRANK PALMIERI AND CARMELA PALMIERI, HIS WIFE, APPELLANTS,
v.
CHARLES CONWAY, APPELLEE
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The court held that a homeowner's knowledge of a danger must be superior to that of a business invitee to create a duty to warn. The homeowner's knowledge of the wet driveway was not superior, and no danger was apparent.
[1] A homeowner's knowledge of a danger must be superior to that of a business invitee to create a duty to warn of dangers unknown to the invitee.
[2] A homeowner is not liable for injuries caused by a condition on the property if there is no showing that the homeowner knew or should have known that the condition create…
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Join FLexlaw to unlock all legal intelligenceA housepainter fell off a ladder while painting appellants' house. The homeowner had hosed the driveway, and the painter placed the ladder on the wet …
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PER CURIAM.
Appellants were found by the jury below to be 15% negligent in an accident which occurred when appellee, a housepainter, fell off a ladder as he painted appellants’ house. Appellants argue that the evidence was legally insufficient to be presented to the jury and that the court erred in not directing a verdict. We agree and reverse.
Appellee testified that Mrs. Palmieri, complaining about his untidiness, had hosed down the driveway two times in the morn ing of the accident. He stated that he had moved the ladder a number of times as he worked around the north part of the house, and just before the fall had placed it on a wet part of the driveway surface. Plaintiff’s expert testified that hosing down the driveway could have “reduced the coefficient of friction” to the point at which the ladder essentially lost its traction and gave way. The jury apparently believed that the hosing was at least in part responsible for the accident. Appellants argue that appel-lee admitted he saw Mrs. Palmieri hose the driveway and himself placed the ladder on the wet surface.
It is well settled that a defendant’s knowledge of a danger must be superior to that of a business invitee in order to create a duty to warn of dangers unknown to the plaintiff. Somers v. Myers, 171 So. 2d 598 (Fla. 1st DCA 1965). Here Mrs. Palmi-eri’s knowledge of the wet driveway was no greater than that of the plaintiff’s. Furthermore there was no showing that Mrs. Palmieri realized she was creating a danger to plaintiff by hosing the driveway down. In Harvey v. Bryant, 238 So. 2d 462 (Fla. 1st DCA 1970), this court held that where there was no showing that a homeowner knew or should have known that placing a throw rug on a newly waxed floor created a dangerous condition, she was not liable for injuries caused when a guest fell on that rug. In short, there was no basis for holding defendants liable for plaintiff’s injuries and the trial court should have directed a verdict in their favor. REVERSED.
SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.
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Pittman v. Volusia Cnty., 380 So. 2d 1192 (Fla. 5th DCA 1980)…2d 229, 233 (2d Cir. 1973). The defendant, at the conclusion of the plaintiff’s case, convinced the trial court that it was entitled to a directed verdict on the basis of the obvious danger principle set forth in Vermont Mutual Ins. Co. v. Conway, 358 So. 2d 123 (Fla.1st DCA 1978) that a duty to warn does not arise if the invitee has knowledge of the danger equal or superior to that of the occupier. We agree with that statement of the law in Vermont Mutual. But we do not agree that it is disposi-tive of the…
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Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981)…parents sole proximate cause); Mansur v. Eubanks, 368 So. 2d 645 (Fla. 1st DCA 1979), (summary judgment for defendant affirmed, landlord not liable to tenant in possession for gas explosion in apartment); Vermont Mutual Insurance Company v. Conway, 358 So. 2d 123 (Fla. 1st DCA 1978), (jury verdict for plaintiff reversed, no foreseeability of creating a dangerous condition.) Of course, during the same period covered by the foregoing cases, the appellate courts have had occasions to disapprove of court determ…
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Metro. Dade Cnty. v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980)…ight Co., 363 So. 2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So. 2d 460 (Fla.1979). Nor can it be said that, as a matter of law, the defendant was not chargeable with any knowledge of the danger. See, e. g., Vermont Mutual Insurance Co. v. Conway, 358 So. 2d 123 (Fla. 1st DCA 1978). To the extent that Mrs. Yelv-ington was negligent in not perceiving the danger created by the County, her negligence was not a bar to recovery, but rather was reflected in the jury’s special verdict on comparative negligence. Se…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Somers v. Meyers, 171 So. 2d 598 (Fla. 1st DCA 1965)
- James v. State, 171 So. 2d 598 (Fla. 1st DCA 1965)
- Harvey v. Bryant, 238 So. 2d 462 (Fla. 1st DCA 1970)