Denson v. SM-Planters Walk Apartments

• Decision Date: 22 April 2015
• Docket Number: No. 1D14–2950.,1D14–2950.
• Parties: Bernadette DENSON, Appellant, v. SM–PLANTERS WALK APARTMENTS, a Florida Corporation, and Insula Property Management, LLC, a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

183 So.3d 1048

Bernadette DENSON, Appellant,

v.SM–PLANTERS WALK APARTMENTS, a Florida Corporation, and Insula Property Management, LLC, a Florida Corporation, Appellees.

No. 1D14–2950.

District Court of Appeal of Florida, First District.

April 22, 2015.

John M. Hatfield and Kate Hatfield of The Consumer Law Firm, P.A., Jacksonville, for Appellant.

James P. Hanratty of Marshall, Dennehey, Warner, Coleman and Goggin, Jacksonville, for Appellees.

PER CURIAM.

Appellant, Bernadette Denson, challenges the trial court's order granting final summary judgment in favor of Appellees, SM–Planters Walk, LLC, d/b/a Planters Walk Apartments ("SM–Planters") and Insula Property Management, LLC, ("Insula"), in a negligence action. Appellant argues that the existence of disputed issues of material fact precluded the trial court from granting Appellees' motion for summary judgment. We affirm the trial court's order with regard to the duty to warn pursuant to the obvious danger doctrine without further comment, but reverse as to the duty to maintain the premises in a reasonably safe condition based upon our finding that disputed issues of material fact exist.

Appellant filed a negligence action against Appellees, alleging that SM–Planters is the owner and Insula is the property manager of the apartment complex whereupon she entered at their invitation on June 9, 2012, and that in the course of leaving the complex, she "stepped on a slick and glossy stair on the top of a stairway located upon the premises and slipped and fell down the stairway." Appellant alleged that Appellees owed her a duty to warn of concealed perils upon the premises and a duty to maintain the premises in a reasonably safe condition and that they breached one or both of those duties. Appellant asserted that Appellees' negligence included their failure to "timely remove or remedy the slick and glossy surface on the stair that caused [her] to slip and fall." Appellees moved for summary judgment, arguing that Appellant could not prove they breached any duty they might have owed to her and that her claim must fail because the stairs had not been freshly painted contrary to her opinion.

Jose Gomez, the maintenance supervisor at the apartment complex, testified at deposition that he painted the stairs around the end of 2009 or the beginning of 2010 with the help of his then-supervisor, Roy, and that the stairs have not been painted since then. Roy, who did not speak English, was responsible for purchasing the paint, and they used "paint for concrete for exterior." Mr. Gomez knows that Roy "bought the proper paint for that area" because Mr. Gomez used to own a construction company and painted the stairs. The paint said it was for concrete and exteriors, but Mr. Gomez did not read the rest of the label and does not recall reading the words "skid resistant." He has been purchasing paint at Home Depot for a long time and knows that "every time it says concrete exterior, it's anti-skid. It has to be. Because there's people at Home Depot that help you. When you go buy the paint that you tell them it's for the outside for the concrete, they have to give you the paint that it's correct for this."

Appellees entered into evidence Home Depot receipts that were dated March 2, 5, and 10, 2010, and contained the names of the apartment complex and Roy. The March 2nd receipt was for concrete stain and skid additive and contained the handwritten notes "clear coat" and "anti-skid additive." The March 5th receipt included a floor finish that was followed by the handwritten note "anti-skid" and items that were followed by the handwritten notes "paint" and "concrete primer." The March 10th receipt contained the handwritten note "brick paint." The receipts reflect that four units of anti-skid additive and ten gallons of product (six gallons of paint, three gallons of concrete primer, and one gallon of concrete stain) were purchased.

Appellant filed a Behr premium non-skid floor finish additive label for the anti-skid additive that appeared on one of the receipts. The label states that the non-skid floor finish additive "is a unique texture additive, which, when mixed with a finished product container of paint or solid color stain creates a slip-resistant coating for all types of interior and exterior floor surfaces." The label instructions call for one pouch of additive per one gallon of finished product and include instructions for mixing and application. The label also states, "This product, if added according to label directions, helps prevent slipping by providing a slip-resistant coating."

In opposing Appellees' motion for summary judgment, Appellant argued that the existence of four disputed issues of material fact precluded summary judgment, one of which was whether Appellees misused a product on the stairs given that the non-skid additive label states that one unit of additive is needed for one gallon of product, the receipts show that ten gallons of product but only four units of additive were purchased, and the label states that the additive helps prevent slipping if added according to label directions. Upon concluding that the disputed issues of fact raised by Appellant were not material, the trial court entered an order granting final summary judgment in favor of Appellees. This appeal followed.

We review an order granting a motion for summary judgment de novo. Haynes v. Universal Prop. & Cas. Ins. Co., 120 So.3d 651, 653 (Fla. 1st DCA 2013). "A summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law." Id. at 653–54. The moving party must conclusively show "the absence of any genuine issue of material fact" and the court must draw "every possible inference" in favor of the non-moving party. Id. at 654. " ‘[E]ven the slightest doubt as to the existence of such a question precludes summary judgment.’ " Ramsey v. Home Depot U.S.A., Inc., 124 So.3d 415, 416–17 (Fla. 1st DCA ...