City of Melbourne v. Dunn, 5D02-652.
| Decision Date | 21 February 2003 |
| Docket Number | No. 5D02-652.,5D02-652. |
| Citation | 841 So.2d 504 |
| Parties | CITY OF MELBOURNE, Florida, Appellant, v. Linda L. DUNN & Jerry Wayne Dunn, Appellee. |
| Court | Florida District Court of Appeals |
Douglas T. Noah and Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellant.
Sidney L. Syna, Melbourne, for Appellee.
The City of Melbourne appeals a final judgment in favor of Linda Dunn, who was awarded damages for injuries she sustained as a result of a fall in a city park. The city contends that the court erred in denying its motion for directed verdict. We reverse.
Dunn, along with her husband and her grandchild, exited the park and encountered a raised planter. The planter was composed of a perimeter of timber planks forming a rectangle of 21×7 feet. The1 planks forming the perimeter, each 6 inches in height, were stacked one atop the other, for a height of 12 inches. The planter was filled with dirt and mulch, and plants in a staggered formation. Despite the fact that there was a path directly beside the planter, Dunn testified that she thought that the route to the parking lot was over and across this obstruction, rather than around it. Dunn traversed the planter and tripped because, she thought, her foot was caught in a crevice caused by the separation of the planks forming one corner of the planter. Below the surface of the planks, a large nail that seemed to have been intended to secure the corner of the planter was dislodged from one of the planks, and Dunn thought that the strap to her sandal may have been caught by the nail. Although Dunn testified that she walked across the planted area, a witness testified that Dunn walked along the edge of the planter, remaining on the timbers.
An owner of land is not required to give an invitee warning of an obvious danger, and is entitled to assume an invitee will perceive something obvious. Moultrie v. Consolidated Stores International Corp., 764 So.2d 637 (Fla. 1st DCA 2000). Some conditions are so open and obvious, so common and innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition. Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992). In the instant case, the photographs in the record, attached hereto, show that the gap between the intersecting planks was a blatant, yawning separation, and Dunn admitted that if she had been looking, she would have seen it. As in Taylor...
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