Ellis v. McCaskill
| Citation | 382 So.2d 808 |
| Decision Date | 11 April 1980 |
| Docket Number | No. 79-1242,79-1242 |
| Parties | Sarah A. ELLIS, Appellant, v. Charles McCASKILL, Lynne McCaskill and Allstate Insurance Company, Appellees. |
| Court | Court of Appeal of Florida (US) |
Ira M. Seidler, St. Petersburg, for appellant.
Steven C. Ruth of Piper, Estava, Karvonen & Lewis, St. Petersburg, for appellees.
Sarah Ellis, plaintiff below, appeals from a final summary judgment for the defendants. The defendants were the son and daughter-in-law of the plaintiff, and the insurance carrier which insured them under a homeowner's policy. We reverse.
Plaintiff's action was for injuries she sustained when she fell in the home of the defendants on May 4, 1977. She alleged the fall occurred because she was negligently distracted or defendants' home was negligently maintained, causing her not to observe a six to eight inch step-down from the main floor level of the home to the garage floor.
The defendants had lived in the home less than a week at the time of the accident, and plaintiff had never been in the home before the day of the accident. Defendants had invited her there on that evening to see their new home and to have dinner with them. She arrived sometime between 6:00 P.M. and 7:00 P.M. Nearly immediately upon arrival, the defendant daughter-in-law offered to show her around their new home, suggesting they start in the garage area and work their way through the rest of the house. They then proceeded from the kitchen, out a short hall and through a door into the garage area. Once through the door, the regular floor level of the house continues into the garage for about five to six feet, at which point there is a step-down of about six to eight inches to the remainder of the garage floor. After passing through the door and when facing across the garage from the door, there is, beginning four to five feet to the right of the doorway, an enclosed storeroom that extends from the wall of the main part of the house for the entire five to six feet width of the floor to the point of the step-down. The area to the left of the doorway was empty at the time of the accident but was where the washer and dryer were later to be put, as was explained by the defendant daughter-in-law as she and the plaintiff entered the garage area. The defendant daughter-in-law was also explaining to plaintiff other uses they planned to make of the garage, including the use of the storage area to the right of the door. It was at that point that the plaintiff stepped off of the step-down as she proceeded further into the garage, thereby causing her fall and resulting injuries. She had not been told about the step-down. It apparently had a red line painted along its edge about an inch or two wide which the plaintiff did not notice, testifying that she was observing the other things her daughter-in-law was pointing out to her. Though the daughter-in-law testified that the red line on the step-down was there when they bought the house, she could not recall whether she had ever noticed it prior to the accident. The entire floor level of the garage area, both the lower portion and the regular or main floor level, is painted the same grey color.
Whether or not the step-down in the garage of the defendants' home was a condition that required plaintiff to be forewarned of it seems to be, under the circumstances of this case, a factual question not susceptible to determination by summary judgment. Likewise, even if there was no duty to warn, whether or not the plaintiff was sufficiently distracted from the danger to come within the "distraction rule" seems to pose a sufficient factual issue to prevent resolution by summary judgment, particularly in view of this state's comparative negligence rule. It is not simply a case of deciding whether a condition is "hidden" and, thus, actionable, or "obvious" or "previously known" and, thus, not actionable unless distracted. As this court stated in Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965):
The "latency" or "patency" of the condition and the defendant's duty to warn is determined by asking the question:...
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Chelton v. Tallahassee-Leon County Civic Center Authority, TALLAHASSEE-LEON
...issues of fact which should be determined by a jury. Combs v. Aetna Insurance Co., 410 So.2d 1377 (Fla. 4th DCA 1982); Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 Mr. Spencer's deposition, submitted by the Civic Center in support of its motion for summary ju......
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Schoen v. Gilbert, 80-163
...did the plaintiff's negligence cause the injury. That question is one for a jury to answer. This case is not unlike Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla.1980). There Mrs. Ellis, visiting her son's new home for the first time, was given the tradit......
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Schoen v. Gilbert
...of the Third District Court of Appeal, Schoen v. Gilbert, 404 So.2d 128 (Fla. 3d DCA 1981), which conflicts with Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), review denied, 389 So.2d 1112 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Petitioner Sylvia Schoen (plaintiff in th......
- Charles McCaskill v. Sarah A. Ellis