Conrad v. Boat House of Cape Coral, LLC
| Decision Date | 17 December 2021 |
| Docket Number | 2D20-227 |
| Citation | 331 So.3d 857 |
| Parties | Jack CONRAD, Appellant, v. The BOAT HOUSE OF CAPE CORAL, LLC, and Kevin Code, Appellees. |
| Court | Florida District Court of Appeals |
Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, Orlando; and Brian M. Davis of The Trial Professionals, Naples, for Appellant.
Kaylin Grey, Raul Chacon, Jr., and Jonathan Hernandez of Manning Gross + Massenburg, LLP, Miami, for Appellees.
In this negligence action resulting from a slip and fall, Plaintiff Jack Conrad appeals a final summary judgment as to liability in favor of The Boat House of Cape Coral, LLC, and Kevin Code, its manager (collectively, the Boat House). Conrad contends that the trial court erred in determining that the Boat House had no duty to warn or to maintain and repair regarding the condition of its seawall which had a chunk of concrete missing at its edge (the divot). Because genuine issues of material fact remain, we reverse and remand for further proceedings. In doing so, we reject the Boat House's alternative arguments for affirmance without discussion.
In April 2018, Conrad filed his negligence complaint that alleged breaches of duty for the Boat House's failure to maintain its premises in a reasonably safe condition and to warn him, a business invitee, of dangerous conditions. The Boat House sought summary judgment as to liability. The Boat House asserted that Conrad's negligence was the sole cause of the accident, that the Boat House had no duty to warn Conrad because the cracked seawall was open and obvious, and that Conrad's knowledge of the condition was equal to or greater than that of the Boat House.
Conrad's deposition reflects that he was an experienced boater and that he had his pontoon boat serviced at the Boat House. When he returned to the Boat House after the service was complete, he went to the dock to board his boat. The ropes were pulled taut due to low tide, and the boat deck was about four feet below the seawall. He saw yellow paint along the edge of the seawall but contended that he did not see the divot because the edge of the seawall was painted all one color which "camouflaged" the divot.
Conrad was asked if he stepped on the "missing cement section of the sea wall," and he said yes. Conrad described that he was going to step over the railing of his boat down onto the livewell because the livewell was about two feet higher than the boat deck. He put his hand on a post, stepped up onto the seawall with his left foot, and then went to step his right foot down onto the boat. As he leaned forward, his left "foot went out from underneath [him]" and he fell, causing injury.
At the time he fell, he did not know what caused him to fall. After he fell, he saw the divot. He admitted that if he would have looked, he could have seen the divot. He was focusing more on his boat and where he was going to put his other foot as he was going to step onto the boat. He had used that dock about six times previously, but not at the specific location of the divot. He did not know why the Boat House docked his boat there.
An employee of the Boat House testified in his deposition that the length of the seawall is about 120 feet. Photographs show that along the length of the seawall the edge is painted with yellow paint. The purpose of the yellow paint is so that people will know where "the seawall ends and the water begins."
A former employee of the Boat House, Gary Cullen, gave deposition testimony that there had been chipped concrete, or divots, on that seawall "[f]orever" and that the divot in question was about a foot wide. He had seen customers stumble or trip—but not fall—on divots on the seawall but not on that particular divot. Prior to Conrad's fall, Cullen had warned the business owner of safety issues and told him that the divots needed to be fixed because "somebody is going to bust their ass."
After a hearing on October 28, 2019, the trial court issued its order granting the motion for summary judgment. The trial court determined that the divot was "clearly visible and was, or should have been obvious to the Plaintiff, as it was neither latent nor concealed, but was patent and obvious to ordinary observation and use of senses." The trial court recognized the existence of "the duty to warn and the duty to maintain premises in a reasonably safe condition" but noted that "the open and obvious nature of a condition may preclude a finding of a breach of either duty as a matter of law," quoting Brookie v. Winn-Dixie Stores, Inc. , 213 So. 3d 1129, 1133 (Fla. 1st DCA 2017). The trial court granted the motion for summary judgment and subsequently entered a final judgment in favor of the Boat House.
On appeal, Conrad argues that the Boat House knew of a dangerous defect, failed to warn Conrad of that dangerous defect, and failed to maintain or repair that dangerous defect. Appellate review of a summary judgment is by the de novo standard. Greene v. Twistee Treat USA, LLC , 302 So. 3d 481, 482 (Fla. 2d DCA 2020) (citing Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) ). To be entitled to summary judgment, the movant must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Pratus v. Marzucco's Constr. & Coatings, Inc. , 310 So. 3d 146, 148-49 (Fla. 2d DCA 2021). We must draw all reasonable inferences in favor of the nonmovant, and if the record shows a possibility that a genuine issue of material fact exists, summary judgment is not permitted. Id. at 149. "A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases." Id. (quoting Watts v. Goetz , 311 So. 3d 253, 258 (Fla. 2d DCA 2020) ).
An owner owes two duties to a business invitee:
(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care.
Pratus , 310 So. 3d at 149 (quoting Tallent v. Pilot Travel Ctrs., LLC , 137 So. 3d 616, 617 (Fla. 2d DCA 2014) ). These two duties are distinct. Wolford v. Ostenbridge , 861 So. 2d 455, 456 (Fla. 2d DCA 2003).
With respect to knowledge, the Boat House asserts that Conrad's knowledge of the divot was equal to or greater than that of the Boat House because he used the dock without incident at least six previous times. However, this ignores Conrad's testimony that he had never used the dock in the specific place where the divot was located.
The trial court determined that the divot at the edge of the seawall "was patent and obvious to ordinary observation," and that conclusion is confirmed by the record photographs. Usually, a business owner has "no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent that he may reasonably be expected to discover them." Greene , 302 So. 3d at 483 (quoting Ashcroft v. Calder Race Course, Inc. , 492 So. 2d 1309, 1311 (Fla. 1986) ).
However, the result is different when the harm is foreseeable to the owner:
The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.
Pratus , 310 So. 3d at 149 (emphasis added) (quoting De Cruz-Haymer v. Festival Food Mkt., Inc. , 117 So. 3d 885, 888 (Fla. 4th DCA 2013) ); see also Greene , 302 So. 3d at 484. In fact, in granting summary judgment the trial court cited two cases, Sokoloff v. Oceania I Condominium Ass'n , 201 So. 3d 664 (Fla. 3d DCA 2016), and Spatz v. Embassy Home Care, Inc. , 9 So. 3d 697 (Fla. 4th DCA 2009), which recognize that the owner is not liable under the obvious danger doctrine "unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious." Sokoloff , 201 So. 3d at 664-65 (quoting Spatz , 9 So. 3d 697, 699 (Fla. 4th DCA 2009) ).
Furthermore, the issue "is not whether the object is obvious, but whether the dangerous condition of the object is obvious. " Pratus , 310 So. 3d at 149 (quoting De Cruz-Haymer , 117 So. 3d at 888 ). The court must consider all the existing "circumstances surrounding the accident and the alleged dangerous condition." Id. (quoting De Cruz-Haymer , 117 So. 3d at 888 ). In Pratus , an employee of a subcontractor stepped into an uncovered drain on a construction site and was injured. Id. at 148. Although the drain was obvious, this court determined that genuine issues of material fact existed regarding whether "the uncovered drain presented an open and obvious...
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