Aventura Mall Venture v. Olson

• Decision Date: 20 March 1990
• Docket Number: No. 89-1126,89-1126
• Citation: 561 So.2d 319
• Parties: 15 Fla. L. Weekly D759 AVENTURA MALL VENTURE, a Florida general partnership, and Oxford Development, a general partner d/b/a Aventura Mall, Appellants, v. Betty OLSON, individually, Appellee.
• Court: Florida District Court of Appeals

Page 319

561 So.2d 319

15 Fla. L. Weekly D759

AVENTURA MALL VENTURE, a Florida general partnership, and Oxford Development, a general partner d/b/a Aventura Mall, Appellants, v. Betty OLSON, individually, Appellee.

No. 89-1126.

District Court of Appeal of Florida,

Third District.

March 20, 1990.

Certification Denied June 13, 1990.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, P.A., and Shelley H. Leinicke, Fort Lauderdale, for appellants.

Floyd Pearson Richman Greer Weil Zack & Brumbaugh and Herman J. Russomanno, Beth Bloom, and Sally R. Doerner, Miami, for appellee.

Before BARKDULL, FERGUSON and JORGENSON, JJ.

JORGENSON, Judge.

Aventura Mall Venture (Aventura) appeals from a final judgment entered after an adverse jury verdict in a slip-and-fall negligence action. We reverse based upon our finding, as a matter of law, that Aventura committed no act of negligence in this case.

On a clear day in December, 1986, Betty Olson was injured when she slipped and fell from a six-inch sidewalk curb at the Aventura Mall. Olson brought a negligence action against Aventura. Olson alleged that Aventura's failure to paint the "crown" of the sidewalk curb yellow ¹ constituted negligence because Olson was not adequately warned of the step-down from the sidewalk. Olson also alleged that Aventura negligently designed and maintained the area surrounding the curb in an unreasonably dangerous condition. ² As evidence of the curb's allegedly dangerous condition, Olson introduced photographs taken at other malls in Dade County depicting curbs painted yellow in their entirety.

Aventura asserted as affirmative defenses that it had no duty to warn Mrs. Olson of the existence of an ordinary sidewalk curb ³ and that Mrs. Olson was comparatively negligent because she was not looking where she was going at the time of the accident. ⁴ The trial court denied Aventura's motions for directed verdict. The jury returned a verdict against Aventura assessing damages of $230,000. ⁵

Aventura contends on appeal that the trial court erred in refusing to direct a verdict in its favor. Specifically, it argues that there was no duty to warn Mrs. Olson of the step-down from an ordinary sidewalk curb and that Olson failed to introduce any evidence to demonstrate that the curb was inherently dangerous. ⁶ We agree.

It is well settled that "the duty of a landowner to a business invitee is to maintain the premises in a reasonably safe condition and to warn the invitee of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care, could not be known to him." Crawford v. Miller, 542 So.2d 1050, 1051 (Fla. 3d DCA 1989), quoting Storr v. Proctor, 490 So.2d 135, 136 (Fla. 3d DCA), rev. denied, 500 So.2d 546 (Fla.1986); Levy v. Home Depot, Inc., 518 So.2d 941, 942 (Fla. 3d DCA 1987). "An owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own sense[s], and is not required to give the invitee notice or warning of an obvious danger." Crawford, 542 So.2d at 1051 (citations omitted).

The curb in question was not a concealed or latent danger. See Bowles v. Elkes Pontiac Co., 63 So.2d 769, 772 (Fla.1952) (presence of uneven floor levels in public places does not constitute hidden and dangerous condition); Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366, 368 (1942) (same); Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990) (uneven parking lot surface which caused plaintiff to fall not a hidden dangerous condition where trip and fall occurred on dry sunny day and nothing obstructed plaintiff's view). Furthermore, this was not a case where the surrounding conditions of the step-down were sufficient to transform a normally non-negligent condition into a negligent one. See N.W. Florida Crippled Children's Ass'n v. Harigel, 479 So.2d 831 (Fla. 1st DCA 1985) (surrounding conditions of step-down, namely, pipe which displayed clothes for sale and extended over step-down, could have transformed normally non-negligent condition into negligent one). On the day of Olson's accident the weather was clear, the lighting around the sidewalk was adequate, and there were no foreign objects on the sidewalk. The curb was plainly visible and could have been seen by Olson had she been looking where she was going.

Olson's allegation that an inherently dangerous condition existed because the color of the curb "crown" blended in with the driveway below and concealed the existence of the step-down is likewise without merit. It is a matter of common knowledge that "the sidewalks and the drop-off[s] from such sidewalks to the streets have the same color as the streets in thousands of instances throughout Florida." Bowles, 63 So.2d at 772....