Andrews v. Goetz

• Decision Date: 31 July 1958
• Docket Number: No. A-38,A-38
• Citation: 104 So.2d 653
• Court: Florida District Court of Appeals
• Parties: Edward D. ANDREWS, Appellant, v. Anthony GOETZ, d/b/a Emmy and Andy's Service Station, and Orange State Oil Company, a Florida corporation, Appellees.

Page 653

104 So.2d 653

Edward D. ANDREWS, Appellant, v. Anthony GOETZ, d/b/a Emmy and Andy's Service Station, and Orange State Oil Company, a Florida corporation, Appellees.

No. A-38.

District Court of Appeal of Florida, First District.

July 31, 1958.

Rehearing Denied Sept. 8, 1958.

Horn & Ossinsky, Daytona Beach, for appellant.

Hull, Landis, Graham & French and Alfred A. Green, Daytona Beach, for appellees.

WIGGINTON, Judge.

This appeal is from a final order entered consequent to the defendant-appellees' motions for summary judgment. The facts were established by plaintiff-appellant's undisputed deposition, which contains as exhibits certain photographs important to an understanding of the case.

The salient facts are: Plaintiff-appellant, while walking across appellees' premises for the purpose of paying a bill for oil previously purchased, caught his shoe on the broken edge of a concrete mound that encased the fill pipe leading to an underground gasoline storage tank, and was thus caused to fall on the paved area of the premises and incur serious injuries.

By his amended complaint it was alleged, inter alia, that the defendants were negligent and careless in permitting the concrete mounds around the fill pipes to become rough and jagged, thereby creating an inherently dangerous condition which was or should have been known to them. The defendants answered with a general denial, alleged contributory negligence, assumption of risk, and that plaintiff's negligence was the sole proximate cause of his injuries.

In his deposition plaintiff admits that his injury occurred in mid-morning on a clear day; that his view was entirely unobstructed; that he had been on or around the premises in question on numerous occasions; that on such prior occasions he had observed the mounds in question; that 'Normally walking, I watch them; normally watching, I would see the mounds;' and that he did in fact see them at the time he fell.

From the photographs on exhibit, which were identified by plaintiff as accurately portraying the scene of his injury, except they '* * * ain't as clear as I seen it on the day I fell,' it appears that the mounds are of obvious dimensions, generally oval in shape with clearly visible portions broken away at the edges, and located in an open and unobtructed expanse of the cemented area around the premises.

It cannot be disputed that plaintiff occupied the position of a business invitee. Therefore, it was incumbent upon the person or persons in control of the premises to exercise ordinary care for plaintiff's safety and to warn him of any latent or concealed defects which were or should have been known to them. ¹ This duty neither extends to nor imposes further duty to warn against patent or obvious conditions which are not dangerous per se. ² Our Supreme Court has continually adhered to the proposition that every person owes himself the duty to see what is plainly to be seen by the ordinary use of his senses, and, if patent and clearly visible, it is deemed in law to have been seen. ³ Failing to exercise such care for his own safety, one cannot complain that he was not warned. And such neglect to any appreciable extent which contributes to the injury is a complete bar to recovery. ⁴ Furthermore, when uncontradicted testimony of the plaintiff shows that his own negligence either constituted the sole proximate cause of, or substantially contributed to his injury, the defendant is entitled to a summary judgment before trial, ⁵ or a directed verdict during trial. ⁶

It is clearly apparent that the negligence of the plaintiff in the instant case was the cause of his injury, inasmuch as he admitted observing and being fully aware of the existence of the mound over which he tripped and fell. Plaintiff is held to have appreciated the danger, if any, inherent in the broken condition of the mound, since that condition was so patently visible upon the ordinary use of the senses. His failure to exercise due care for his own safety bars recovery.

From the foregoing it follows that plaintiff's right to recover being precluded as a matter of law, the trial court was eminently correct in granting summary judgment for defendants. Accordingly, the judgment appealed from must be and it is hereby affirmed.

STURGIS, C. J., concurs.

CARROLL, DONALD K., Judge (dissenting).

I feel constrained to dissent from the majority in this appeal, for I believe that the judgment appealed from should be reversed.

This is an appeal from a summary judgment in favor of the appellee, the defendant below, in an action for personal injuries. In his amended complaint the appellant, the plaintiff below, alleged that the defendant Goetz owned and operated a filling station and grocery store in New Smyrna Beach, Florida, and maintained on the premises 'three fill pipes and caps, which were built up with a concrete mound, and said fill pipes and caps were located in an area where business customers were known to walk, and would necessarily be required to walk, and that said inherently dangerous condition of said fill pipes and caps were known, or should have been known by the defendant to be negligent.'; that the defendant Orange State Oil Company owned the building and premises where Goetz owned and operated the filling station. The plaintiff further alleged that the defendants jointly and severally were negligent in that they permitted concrete mounds around the filling pipes to become rough and ragged around the edges where the mounds joined the concrete level surface, so that they became inherently dangerous to business invitees on said premises and that plaintiff on the said date was walking on the premises of the filling station for the purpose of transacting business with the station and while walking on the premises the edge of the plaintiff's shoe became entangled and caught on the edge of one of the mounds, and thereby the plaintiff lost his balance, fell on the pavement and fractured his hip and leg, suffering great physical and mental pain and anguish, etc. In his answer the defendant Goetz pleaded that he was not guilty; that the condition referred to in the amended complaint was open and obvious to the plaintiff and that the plaintiff's negligence in failing to observe such open and obvious condition was the sole proximate cause of his injuries; and that the plaintiff's said negligence proximately contributed to his injuries. Goetz also denied that he had caused the condition referred to in the amended complaint. Similar defenses were alleged in its answer by the defendant Orange State Oil Company.

Each of the defendants filed a motion for summary judgment and upon the hearing of these motions the trial judge granted the motions and in his order stated in part:

'The Court having examined the pleadings and the deposition of the plaintiff and it appearing on pages 7 and 8 of the plaintiff's deposition that he admitted knowledge of the existence of the concrete mound, that he saw them when he was entering upon the filling station, that there was nothing to obstruct his view, that the middle mound caused his fall and that his fall was not caused by any grease...