Cook v. Bay Area Renaissance Festival of Largo, Inc.

• Decision Date: 08 May 2015
• Docket Number: No. 2D14–2392.,2D14–2392.
• Citation: 164 So.3d 120
• Parties: Cynthia COOK, Appellant, v. BAY AREA RENAISSANCE FESTIVAL OF LARGO, INC., a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

164 So.3d 120

Cynthia COOK, Appellant

v.BAY AREA RENAISSANCE FESTIVAL OF LARGO, INC., a foreign corporation, Appellee.

No. 2D14–2392.

District Court of Appeal of Florida, Second District.

May 8, 2015.

David M. Bulluck of Bulluck Law Group, Temple Terrace, for Appellant.

Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St. Petersburg, for Appellee.

Opinion

VILLANTI, Chief Judge.

Cynthia Cook appeals an order granting summary judgment in favor of Bay Area Renaissance Festival. Because a genuine issue of material fact exists as to whether Bay Area was exercising control of the area in which Cook was injured and because the foreseeability of the accident in this case was a jury question, we reverse.

Upon her arrival at a renaissance festival hosted by Bay Area, Cook was directed by festival volunteers to park in an overflow parking lot. There was an unpaved walkway on a patch of city-owned land between the festival grounds and this overflow lot. Between the unpaved walkway and the entrance to the festival, a police officer directed traffic and helped attendees cross the road. After attending the festival and while on her way back to the overflow lot, Cook tripped on an exposed pipe on the unpaved walkway, cutting her foot. There was nothing obstructing Cook's view of the exposed pipe, and other attendees, including her husband, had attempted to warn Cook of the pipe immediately before she was injured. Following this mishap, and without seeking permission from the landowner, a Bay Area employee removed the pipe.

Cook filed suit, alleging Bay Area was negligent in not maintaining the property in a safe condition. During depositions of Cook and her husband, there was conflicting testimony concerning whether a volunteer at the festival directed them to use the unpaved walkway. Bay Area moved for summary judgment, arguing that there was no proof that it had control over the premises where Cook injured herself. The trial court granted Bay Area's motion and entered final summary judgment for Bay Area.

This court reviews summary judgment using a de novo standard. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if: (1) there is no genuine issue of material fact, and (2) the moving party is entitled to a judgment as a matter of law. Id. “ ‘If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.’ ” Schmidt v. State Farm Mut. Ins. Co., 750 So.2d 695, 698 (Fla. 2d DCA 2000) (quoting Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979) ).

Cook first argues that summary judgment was improper because a genuine issue of material fact exists concerning whether Bay Area had control over the unpaved walkway where her injury occurred. In determining premises liability, the party's ability to exercise control over the premises is the relevant question; ownership of and title to the premises are irrelevant. Metsker v. Carefree/Scott Fetzer Co., 90 So.3d 973, 977 (Fla. 2d DCA 2012). A party “who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair.” Id. (quoting Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136, 1138 (Fla. 1st DCA 1983) ). Here, there was ample deposition testimony to establish that Bay Area was in fact using the adjacent lot for overflow parking, and there was conflicting deposition testimony on whether Bay Area intended its invitees to use the unpaved area as a walkway to the entrance of the festival grounds. Further, there was undisputed evidence that Bay Area employees took action to remove the pipe from the unpaved area after Cook's injury without first seeking permission or approval from the landowner. These facts all combine to suggest that Bay Area exercised control over the relevant premises, which created a question of fact for the jury that precludes summary judgment. See Goss v. Human Servs. Assocs., Inc., 79 So.3d 127, 131 (Fla. 5th DCA 2012).

Bay Area now argues in the alternative that even if it exercised control over the premises, because the exposed pipe was open and obvious, it had no duty to warn Cook of the hazard.See Dampier v. Morgan Tire & Auto, LLC, 82 So.3d...