855 So.2d 624 (Fla.App. 5 Dist. 2003), 5D02-1624, Marriott International v. Perez-Melendez

Docket NºCase No. 5D02-1624
Citation855 So.2d 624, 28 Fla. L. Weekly D 1727
Opinion JudgeThe opinion of the court was delivered by: Sawaya, C.J.
Party NameMARRIOTT INTERNATIONAL, INC., Appellant/Cross-Appellee, v. ZAIRA PEREZ-MELENDEZ, Appellee/Cross-Appellant.
AttorneyMarie A. Borland of Hill, Ward & Henderson, P.A., Tampa
Case DateJuly 25, 2003
CourtCourt of Appeal of Florida (US), Fifth District

Page 624

855 So.2d 624 (Fla.App. 5 Dist. 2003)

28 Fla. L. Weekly D 1727

MARRIOTT INTERNATIONAL, INC., Appellant/Cross-Appellee,

v.

ZAIRA PEREZ-MELENDEZ, Appellee/Cross-Appellant.

Case No. 5D02-1624

District Court of Appeal of the State of Florida Fifth District

July 25, 2003

Page 625

Appeal from the Circuit Court for Orange County, William C. Gridley, Judge. Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa and John H. Ward of Brown, Ward, Salzman & Weiss, Orlando, for Appellant/Cross-Appellee.

Elizabeth H. Faiella of Elizabeth H. Faiella, P.A., Winter Park and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellee/Cross-Appellant.

SAWAYA, C.J.

Marriott International, Inc., (Marriott) appeals a final judgment entered in favor of Zaira Perez-Melendez (Perez-Melendez) based on a jury verdict awarding Perez-Melendez damages for the injuries she sustained when she fell into a drain inlet located on property owned by Marriott. The issue we will address is whether the trial court erred in failing to direct a verdict in favor of Marriott because Perez-Melendez failed to establish any negligence

Page 626

on Marriott’s part. 1 In order to resolve this issue, we will discuss in the following order the factual and procedural background of the instant case, the two-issue rule, the standard of review we must apply, and our legal analysis.

Factual And Procedural Background

Perez-Melendez, a Puerto Rico resident employed by the city of San Juan as the Director of Senior Citizens Volunteers, came to Orlando for a convention that was to be held at the Marriott World Center (hereinafter “World Center”). Perez-Melendez testified that she made reservations for a room at the World Center before leaving Puerto Rico. However, when she arrived to check in, she was advised that no more rooms were available. She was then provided accommodations at the Residence Inn, which is also owned by Marriott. The walking distance between the two hotels is approximately three-fourths of a mile.

On June 25, 2000, at approximately 10:30 p.m., Perez-Melendez, two other women, and their children decided to go from Perez-Melendez’s room at the Residence Inn to the World Center. Unfortunately for Perez-Melendez, on her journey, she stepped into a drainage inlet and fractured her ankle. Perez-Melendez filed a personal injury suit against Marriott for damages. Encased within the same count of the complaint are four separate theories of liability. The first is based on the alleged active negligence of Marriott in failing to provide a reasonably safe transportation system for Perez-Melendez between the two hotels. The other three are premises liability theories based on allegations that Marriott failed to maintain its premises in a reasonably safe condition, failed to correct a dangerous condition that Marriott knew or should have known about, and failed to warn Perez-Melendez of an existing dangerous condition of which Marriott knew or should have known. We note, parenthetically, that whether it is appropriate to plead more than one theory of liability in a single count of a complaint is not an issue before us.

At the conclusion of Perez-Melendez’s case-in-chief and again at the conclusion of the trial, Marriott moved for a directed verdict, alleging that Perez-Melendez had failed to establish a prima facie case of negligence. The trial court denied both motions. The jury instructions that were read to the jury instructed the jury on each theory of liability. The verdict form, submitted to the jury without objection, did not request findings as to each theory of liability; rather, it simply requested the jury to determine whether Marriott was negligent and, if so, the amount of the damages. The jury returned a verdict in favor of Perez-Melendez, finding Perez-Melendez thirty-percent comparatively negligent.

Marriott argues that as a matter of law it did not owe a duty to Perez-Melendez to provide her a reasonably safe transportation system because it was not reasonably foreseeable that she would fall into the drainin let and injure her ankle. Marriott contends that the issue of fore see ability as it relates to establishing a duty of care is a legal issue to be decided by the court and, therefore, the trial court should have granted its motion for directed verdict. Perez-Melendez argues that the incident

Page 627

she was involved in was foreseeable as a matter of law and Marriott did owe her a duty of care. Perez-Melendez also argues that she alleged three premises liability theories of recovery and that, pursuant to the two-issue rule, Marriott must establish that a directed verdict was appropriate for each theory alleged. Since Marriott cannot, asserts Perez-Melendez, the judgment should be affirmed.

The Two-Issue Rule

The two-issue rule provides that “where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.” Whitman v. Castlewood Int’l Corp., 383 So.2d 618, 619 (Fla.1980). The rule applies to separate theories of liability and defenses; it does not apply to the elements of a cause of action or defense. Grenitz v. Tomlian, 2003 WL 21290887 (Fla. June 5, 2003); Barth v. Khubani, 748 So.2d 260 (Fla. 1999). Hence, when a verdict is rendered in favor of the plaintiff, as in the instant case, the two-issue rule applies to actions brought on two or more theories of liability where the finding of liability as to one theory entitles the plaintiff to recover the same measure of damages recoverable under the other theories of liability. Grenitz;Barth; First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Johnson v. Thigpen, 788 So.2d 410 (Fla. 1st DCA 2001). In Barth, the court explained:

When a general verdict for the plaintiff is on review, the rule is applied by focusing on the causes of action, such that an appellate claim of error raised by the defendant as to one cause of action cannot be the basis for reversal where two or more theories of liability (or causes of action) were presented to the jury.

748 So.2d at 261. The burden of establishing error as to each theory of liability or defense is on the non-moving party. Barth.

For example, in Zimmer, Inc. v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA), review denied, 786 So.2d 1193 (Fla. 2000), the court applied the two-issue rule in a products liability case because the jury instructions included two standards for determining whether the product was unreasonably dangerous—the ordinary consumer test and the risk benefit test—and the verdict form did not require the jury to identify its basis for deciding that the product was defective. In a wrongful death action, the court in Penske Truck Leasing Co., LP v. Moore, 702 So.2d 1295 (Fla. 4th DCA 1997), applied the two-issue rule by presuming that the jury found for the plaintiffs on both theories of negligence submitted to the jury. The...

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22 practice notes
  • 908 So.2d 574 (Fla.App. 5 Dist. 2005), 5D04-554, Aaron v. Palatka Mall, L.L.C.
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • August 12, 2005
    ...on breach of the duty to maintain the premises in a reasonably safe condition. 1 In Marriott International, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003), for example, we explained that [t]he courts have consistently held that while the open and obvious danger doctrine may in ce......
  • 980 So.2d 550 (Fla.App. 4 Dist. 2008), 4D06-3038, L.A. Fitness Intern., LLC v. Mayer
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • April 23, 2008
    ...a "duty of care" exists is a question of law to be determined solely by the court. Marriott, Int'l, Inc. v. Perez-Melendez, 855 So.2d 624, 628 (Fla. 5th DCA 2003). Here, in denying appellant's motion for directed verdict, the trial court determined the duty of care owed the deceas......
  • Trugreen Landcare, LLC v. Lacapra, 083118 FLCA5, 5D17-1594
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • August 31, 2018
    ...of the duty to maintain the premises in a reasonably safe condition." Id. (citing Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003)). Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty t......
  • Royal Caribbean Cruises, Ltd. v. Spearman, 042821 FLCA3, 3D18-2188
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • April 28, 2021
    ...jury to indicate which alternate theories were resolved in favor of which party. See Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624, 627 (Fla. 5th DCA 2003) (applying the two-issue rule after noting that "[e]ncased within the same count of the complaint are&#......
  • Request a trial to view additional results
21 cases
  • 908 So.2d 574 (Fla.App. 5 Dist. 2005), 5D04-554, Aaron v. Palatka Mall, L.L.C.
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • August 12, 2005
    ...on breach of the duty to maintain the premises in a reasonably safe condition. 1 In Marriott International, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003), for example, we explained that [t]he courts have consistently held that while the open and obvious danger doctrine may in ce......
  • 980 So.2d 550 (Fla.App. 4 Dist. 2008), 4D06-3038, L.A. Fitness Intern., LLC v. Mayer
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • April 23, 2008
    ...a "duty of care" exists is a question of law to be determined solely by the court. Marriott, Int'l, Inc. v. Perez-Melendez, 855 So.2d 624, 628 (Fla. 5th DCA 2003). Here, in denying appellant's motion for directed verdict, the trial court determined the duty of care owed the deceas......
  • Trugreen Landcare, LLC v. Lacapra, 083118 FLCA5, 5D17-1594
    • United States
    • Florida Court of Appeal of Florida (US) Fifth District
    • August 31, 2018
    ...of the duty to maintain the premises in a reasonably safe condition." Id. (citing Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003)). Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty t......
  • Royal Caribbean Cruises, Ltd. v. Spearman, 042821 FLCA3, 3D18-2188
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • April 28, 2021
    ...jury to indicate which alternate theories were resolved in favor of which party. See Marriott Int'l, Inc. v. Perez-Melendez, 855 So.2d 624, 627 (Fla. 5th DCA 2003) (applying the two-issue rule after noting that "[e]ncased within the same count of the complaint are&#......
  • Request a trial to view additional results
1 firm's commentaries
  • Don’t Let The Two Issue Rule Send Your Appeal Down the Drain
    • United States
    • JD Supra United States
    • January 5, 2016
    ...is an example of a situation in which the two-issue rule affected the outcome of an appeal. In Marriott International v. Perez-Melendez, 855 So. 2d 624 (Fla. 5th DCA 2003), the plaintiff booked a room at defendant Marriott’s hotel and convention center for an on-site conference.. Upon arriv......

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