Arias v. State Farm Fire & Cas. Co.

• Decision Date: 08 February 1983
• Docket Number: No. AL-437,AL-437
• Citation: 426 So.2d 1136
• Court: Florida District Court of Appeals
• Parties: Doris ARIAS and Theodore Arias, Appellants, v. STATE FARM FIRE & CASUALTY COMPANY and Lysle E. Williams, Appellees.

Page 1136

426 So.2d 1136

Doris ARIAS and Theodore Arias, Appellants, v. STATE FARM FIRE & CASUALTY COMPANY and Lysle E. Williams, Appellees.

No. AL-437.

District Court of Appeal of Florida,

First District.

Feb. 8, 1983.

Rehearing Denied March 10, 1983.

John N. Bryant, P.A., Jacksonville, for appellants.

Shawn Ettingoff and J. Stephen O'Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellees.

ERVIN, Judge.

In this personal injury action, appellants/plaintiffs appeal from a final summary judgment absolving the defendants from any liability. Because genuine issues of material fact remain undetermined, we reverse and remand for further consistent proceedings.

The present status of the record reveals that appellant Doris Arias was injured after a "john boat" operated by David Fenton on Lake Hampton in Bradford County, Florida, collided with a diving dock, located in the lake, several hundred feet directly in front of property owned by appellee that abutted Lake Hampton. Appellants alleged that the dock constituted a hazardous condition because at the time of the accident it protruded only eight to ten inches above the surface of the water, and there were no signs or other devices placed on or about the dock to warn boaters of its location. Moreover, they alleged that the dock was owned, controlled or maintained by defendant Lysle Williams in that he or others under his direction undertook to add a concrete slab to the top of the diving dock, which increased the danger to boaters.

In considering the motion for summary judgment, the lower court had before it evidence disclosing that Lake Hampton is a meandered fresh water lake; that the diving dock had been in existence at the time defendant Williams bought his lake front property, but that after its purchase, he had placed a thin shelled cement surface over the deck when a neighborhood child complained of receiving splinters while on it. Additionally, defendant Williams, by affidavit, denied that he had ever conducted any commercial or other activity for profit on the area of the lake where the accident occurred, or on his real property which abutted the lake.

As to their first argument in support of the summary judgment, appellees implicitly assume that plaintiff Doris Arias' status, while on Lake Hampton, was either that of an invitee or licensee. The duty owed by a landowner or occupant to a licensee or invitee is of course the same; he must keep his property reasonably safe, and protect the visitor from dangers of which he is, or should be, aware. Wood v. Camp, 284 So.2d 691 (Fla.1973); Post v. Lunney, 261 So.2d 146, 147 (Fla.1972). The appellees do not contend that Doris Arias was a trespasser. If she were, their duty to her would have been only to avoid harming her willfully and wantonly, or, if her presence were discovered, to warn her of known dangers not open to ordinary observation. Wood v. Camp, at 693-94.

Essentially, they argue that because the record conclusively establishes that Lake Hampton is a navigable body of water, the lands beneath the water are owned by the state, not by defendant Williams, hence he could not own or control the submerged lands on which the diving dock was placed; consequently it could not be said that he owed any duty to her to warn or take other measures for her safety. Cf. Odom v. Deltona Corp., 341 So.2d 977, 988-89 (Fla.1976); Pembroke v. Peninsular Terminal Co., 108 Fla. 46, 146 So. 249, 253 (1933); State, Department of Natural Resources v. Contemporary Land Sales, Inc., 400 So.2d 488, 491 (Fla. 5th DCA 1981). This argument, however, begs the question. The crucial question is whether it can be concluded on this record, as a matter of law, that defendant Williams, notwithstanding the ownership of the lands by the state, maintained control over the boat dock which was placed upon such submerged lands. The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises depends generally upon his control of the property, regardless of whether he has title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. 62 Am.Jur.2d Premises Liability § 12, pp. 239-240 (1972). Thus, anyone who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair, and the fact that others are under a duty which they fail to perform is no defense to one who has assumed control, thereby bringing others within the sphere of danger. Id. at § 14, p. 243. Cf. Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978); Air Canada v. Smith, 357 So.2d 789 (Fla. 1st DCA 1978).

We are not prepared to state on this record that defendant Williams failed to maintain the requisite control over the boat dock. The affidavit of Lysle Williams admitted that he had placed a thin shell of cement over the diving dock during the summer of 1976. The rule is well settled that the burden of proof on the party moving for summary judgment is to show the absence of any genuine issue of material fact, and all doubts and inferences must be resolved against the movant. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29, 32 (Fla.1977); Morgan v. Growers Marketing Services, Inc., 370 So.2d 74 (Fla. 2d DCA 1979). Williams' admission, together with the other allegations made by the plaintiffs on the question of control, was sufficient to raise a reasonable inference of a disputed material fact, so as to require that the motion be denied.

Appellees also assert that under the provisions of Section 375.251, Florida Statutes (1979), ¹ the defendant Williams owed no duty of care to keep the lake safe for entry or use by others or to give warning to persons entering or going on the lake of any hazardous conditions, structures or activities thereon, because access to the lake for recreational purposes had been provided to the public by Williams. In Abdin v. Fischer, 374 So.2d 1379 (Fla.1979), the statute was attacked as violative of Article I, Section 21 of the Florida Constitution on the ground that it bars a common law cause of action against landowners and lessees for damages resulting from a defective or...