Fitzgerald v. Cestari, 88-0834

• Decision Date: 15 November 1989
• Docket Number: No. 88-0834,88-0834
• Citation: 14 Fla. L. Weekly 2636,553 So.2d 708
• Parties: 14 Fla. L. Weekly 2636 Terry FITZGERALD, as mother and next friend of Brandi Fitzgerald, a minor, Appellant, v. Jan CESTARI, Maria Cestari, his wife and Mary B. Cestari, Appellees.
• Court: Florida District Court of Appeals

Page 708

553 So.2d 708

14 Fla. L. Weekly 2636

Terry FITZGERALD, as mother and next friend of Brandi Fitzgerald, a minor, Appellant, v. Jan CESTARI, Maria Cestari, his wife and Mary B. Cestari, Appellees.

No. 88-0834.

District Court of Appeal of Florida Fourth District.

Nov. 15, 1989.

Rehearing and Certification Denied Jan. 12, 1990.

Kenneth R. Drake of Touby, Smith, DeMahy & Drake, P.A., Miami, for appellant.

Jay B. Green, Renee D. Braeunig and Daniel L. Haverman of Jay B. Green, P.A., Fort Lauderdale, for appellees.

PER CURIAM.

The dissent occasions this opinion.

While the dissent discusses many of the facts and the law from other jurisdictions, we add more of the former as well as note the extant law of Florida by which the trial court and this court felt bound.

The Cestaris filed a motion for summary judgment, asserting that the Fitzgeralds were barred from pursuing the lawsuit as a result of a release they had executed in favor of the Cestaris and their homeowner's insurance carrier. In addition, the Cestaris, citing Slavin v. Kay, 108 So.2d 462 (Fla.1958), asserted that the lack of safety glass was a latent defect that was not discoverable by them through normal inspection and that it was the negligence of the original builder that constituted the proximate cause of Fitzgerald's injuries.

In support of the motion for summary judgment, the affidavit of Jan Cestari and portions of Fitzgerald's deposition transcript were filed with the court. Jan Cestari's affidavit asserted that he did not install the subject sliding glass door as it was already in place when he purchased the home; that he and his family were unaware of the type of glass that comprised the sliding glass door; and that the type of glass in the subject doors was not readily discoverable by inspection of same.

The Cestaris' motion for summary judgment was granted by the trial court, which found that the Cestaris had no duty to investigate and determine the type of glass used in the construction of the sliding glass door and that the Cestaris had no duty to place decals or other markings on the door.

As supplemental authorities, the Cestaris furnished this court with copies of two cases that follow the principles enunciated in the Slavin case--Easterday v. Masiello, 518 So.2d 260 (Fla.1988), and Bass v. Jones, 533 So.2d 780 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (Fla.1989).

We agree with the Cestaris that this court should affirm the trial court's entry of summary final judgment in their favor as the defect in the sliding glass door was a latent defect of which they had no knowledge and which reasonable inspection would not have disclosed to them. We are in agreement with their contention that it is the original builder of the home, pursuant to the holding in Slavin, who should be held accountable for Fitzgerald's injury.

The issue of whether a particular object constitutes a latent defect has been resolved by this court as a matter of law after an examination of cases defining and describing latent defects. See Egan v. Washington General Insurance Corporation, 240 So.2d 875, 877 (Fla. 4th DCA 1970). Furthermore, it is held that a landlord is not liable for injuries sustained by a child on the landlord's leased premises in the absence of a showing that the landlord had knowledge, either actual or constructive, of the dangerous condition existing on the premises. See Wilson v. Wilson, 382 So.2d 773 (Fla. 3d DCA 1980).

Although Fitzgerald cites to Florida cases which he claims stand for the proposition that cases involving sliding glass doors normally present factual questions for the jury, our reading of those cases leaves us with the impression that the unresolved issues being submitted to the jury therein involved the contributory negligence, if any, of the injured minor plaintiff. The specific cases cited by Fitzgerald in this regard--Peppermint Twist, Inc. v. Wright, 169 So.2d 330 (Fla. 3d DCA 1964), and Canner v. Blank, 152 So.2d 193 (Fla. 3d DCA 1963)--predate the Florida Supreme Court's decision in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), wherein the contributory negligence rule was replaced by the comparative negligence rule. Neither party in the instant case raises contributory negligence as an issue.

We perceive the instant case to be one in which the movants, the Cestaris, showed that the negligence charged against them was not causally-related to the plaintiff's injury as it was the negligence of the original builder that was so causally-related. Holl v. Talcott, 191 So.2d 40, 47 (Fla.1966). Jan Cestari's affidavit asserts the following:

2. That on April 18, 1984, my family and I were unaware of the type of glass that comprised the sliding glass doors to my home.

3. That the type of glass in the subject doors was not readily discoverable by my inspection of same.

4. That on April 18, 1984, the glass in the subject sliding glass doors was the original glass installed by the original contractors that built my home.

While we affirm the entry of summary final judgment, the Florida Supreme Court may have the opportunity to decide whether further review is appropriate. There is no downside to such opportunity.

HERSEY, C.J., and GLICKSTEIN, J., concur.

DELL, J., dissents with opinion.

DELL, Judge, dissenting.

This appeal arises out of a summary final judgment entered in favor of appellee homeowners in a glass sliding door accident case. Appellant brought suit as mother and next friend of Brandi Fitzgerald, a minor.

Brandi Fitzgerald, a seven-year-old child, suffered personal injuries when she ran into a sliding glass door at appellees' residence. The glass sliding door had no decals or other markings and was not made of laminated safety glass, wired glass or tempered glass.

Appellant alleged in her complaint that appellees had a duty to use ordinary care to maintain their premises in a reasonably safe condition and that they breached that duty by failing to give timely notice of latent or concealed perils, of which they knew or should have known. Appellant specifically alleged that appellees breached their duty of reasonable care by failing to place decals or other markings on the glass door. The trial court found as a matter of law that appellees had no duty to investigate and determine the type of glass used in the door and they had no duty to place decals or other markings on the door. I disagree and dissent because material questions of fact exist as to appellees' breach of their duties of care.

The briefs place great emphasis on whether the glass sliding door was an inherently dangerous instrumentality. Apparently this emphasis results from the trial court's determination that appellees' duty to place decals or other markings on the door did not exist unless appellant proved that the door was inherently dangerous and that appellees knew or should have known of the condition. Appellees cite only Watts v. Bacon & Van Buskirk Glass Co., 20 Ill.App.2d 164, 155 N.E.2d 333 aff'd., 18 Ill.2d 226, 163 N.E.2d 425 (1959), to support their argument that a glass sliding door is not an inherently dangerous instrumentality. However, the court in Dixon v. Allstate Insurance Co., 362 So.2d 1368 (La.1978), reached a different conclusion based on statistical data and common sense:

Care should increase with the magnitude of the harm which might befall a victim. A large sheet of thin, clean, transparent, untempered, not-laminated glass presents such an obvious risk of serious injury that it must be considered a hazardous substance. The location of such glass panels, blocking entry and exit through openings in houses designed as passageways multiply the opportunities for serious accidents.

The very least the owner of a building must do is warn a visitor when such a transparent door is closed. The warning is so simple and inexpensive, especially when compared with the risk of harm, that its absence ought not be excused. A decal, decorative tape, paint, or a simple strip of masking tape might be sufficient to prevent serious injury. The homeowner, in the case before us, welcomed the four teen-agers, including her grandson, to swim, cook out and play in the very area where the hazard was greatest. (footnote omitted)

Id. at 1369-70.

In a footnote, the Dixon co...