Gorin v. City of St. Augustine

• Decision Date: 13 March 1992
• Docket Number: 90-1231,Nos. 90-1128,s. 90-1128
• Citation: 595 So.2d 1062
• Parties: 17 Fla. L. Weekly D702 Marsha GORIN, et al., Appellants, v. CITY OF ST. AUGUSTINE, Florida, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1062

595 So.2d 1062

17 Fla. L. Weekly D702

Marsha GORIN, et al., Appellants, v. CITY OF ST. AUGUSTINE, Florida, etc., et al., Appellees.

Nos. 90-1128, 90-1231.

District Court of Appeal of Florida Fifth District.

March 13, 1992.

Edward A. Perse of Perse, P.A. & Ginsberg, P.A. and Carroll & Halberg, P.A., Miami, for appellants.

William M. Corley and Clifford C. Higby, Jacksonville, for appellee City of St. Augustine.

Scott A. Cleary of Williams & Shad, P.A., Jacksonville, for appellee Lightner Museum.

PETERSON, Judge.

EN BANC

Marsha Gorin and her husband, Martin, appeal the summary judgment entered in favor of the defendants, two separate entities, City of St. Augustine and Lightner Museum, a Florida corporation not for profit. The Gorins brought the action as a result of injuries Marsha sustained in a fall when she stepped down from a sidewalk to a roadway. We affirm.

On August 28, 1986, Mr. and Mrs. Gorin boarded a tram for a tour of St. Augustine tourist sites, one of which is the Lightner Museum. The city provides a semicircular driveway at the front entrance of the museum to eliminate obstruction to traffic on a main thoroughfare. A sidewalk, also provided by the city, abuts the driveway and requires a step up to the sidewalk. The sidewalk and the driveway surfaces are of a similar, if not the same, coloration. The Gorins arrived at the museum, disembarked the tram, toured the museum, and began the walk back to the tram on much the same route that they had followed upon their arrival. When Mrs. Gorin arrived at the point where the sidewalk dropped to the level of the driveway, she fell. Later, she testified while being deposed that, although she was watching where she was going, she did not see the change in elevation nor the curb located approximately five or six feet from the tram.

In addition to these facts, the evidence before the trial court at the hearing on the motion for summary judgment included a report that a driver for the company operating the tram told Mrs. Gorin that she had seen four or five persons fall off the curb and had reported it to someone at the museum. In a deposition, the driver indicated that she had observed the falls during the two years and three or four months that she was employed as a driver and had reported only one incident to the museum. That incident involved the simultaneous fall of two women who were looking at the tram rather than at the sidewalk. She also indicated that the reason for the incidents is that persons waiting for the tram become excited when they see the tram arriving and they fail to look where they are walking. Mrs. Gorin specifically testified that she was watching where she was walking and did not see the curb. Another driver indicated in a deposition that on a busy day approximately one thousand passengers would board the tram. The Gorins had filed an affidavit of an engineer which indicated that the "lack of delineation between the steps for the sidewalk/street and tram areas creates an optical illusion with conflicting and confusing feedback particularly to pedestrians in a vacational and recreational mood." The engineer further opined that this was an inherently and unreasonably dangerous situation, that warning signs or yellow striping should be available, and that, had these warnings been present, the accident would not have occurred. The Gorins conceded that there was no foreign substance or "break" in the curb that contributed to the fall. The surface was dry and Mrs. Gorin's path was unobstructed. The city manager testified in his deposition that curbs within the city are not marked except for parking restrictions, that the city built and maintained the curbs, and that Lightner Museum had no responsibility to do so.

The Gorins alleged that the City of St. Augustine was negligent in maintaining an unsafe curb that was not adequately painted or marked. The trial court relied on Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA), review denied, 574 So.2d 142 (Fla.1990), in granting the defendants' motions for summary judgment. Aventura involved a slip and fall from a six-inch sidewalk curb. The plaintiff alleged in that case that the curb was negligently designed and maintained because it had not been painted yellow to warn of the change in elevation. Although the trial court entered judgment for the plaintiff after a jury verdict, the Third District reversed, finding no inherent danger in the color of the curb blending with the color of the driveway below. The court quoted from an earlier Florida Supreme Court opinion, Bowles v. Elkes Pontiac Co., 63 So.2d 769, 772 (Fla.1952), that "[i]t is a matter of common knowledge that 'the sidewalks and the drop-off[s] from such sidewalks to the streets have the same color as the streets in thousands of instances throughout Florida.' " 561 So.2d at 320.

The facts in this case are strikingly similar to those in Aventura in that curbs, if painted, were for traffic control only; the weather was clear; the lighting was adequate since the event took place during daylight hours; there was no foreign object on the surface; and the curb was plainly visible. The Aventura opinion also cited Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss.1967), in which that court concluded that a step-off from a sidewalk curb was not inherently dangerous although the plaintiff testified that "it just looked like one big solid slab of concrete, all on the same level." Aventura is also consistent with our earlier decision in Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. 5th DCA 1990), where we stated, "Some conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition." We also agree with the Third District that "to hold that an ordinary sidewalk curb, without more, is inherently dangerous would make every municipality and business establishment the virtual insurer of the safety of every pedestrian." Aventura, at 321. Given the high traffic of passengers boarding the tram, some will fall no matter what color the curb might be, especially when the passengers are looking at the tram rather than where they are walking as was the case in the previous incidents witnessed by the tram driver.

The Gorins cite Bryant v. Lucky Stores, Inc., 577 So.2d 1347 (Fla. 2d DCA 1990), to support their contention that summary judgment should not have been entered for the defendants. The plaintiff in Bryant was injured as she stepped from the sidewalk to the driveway below. She happened to choose the point of descent where a speed bump had been constructed on the driveway below, causing an uneven surface upon which to step. The Second District reversed the summary judgment after determining that a factual question was raised as to whether, when considering all circumstances, the plaintiff should have seen the speed bump. Neither the curb nor the descent was an issue; the issue was whether the defendant should have seen the uneven surface, the speed bump, at the termination point of her descent. In the instant case, the surfaces of both the sidewalk and the roadway were even.

The summary judgment in favor of the City of St. Augustine and Lightner Museum is affirmed.

AFFIRMED.

GOSHORN, C.J., DAUKSCH, COBB, COWART, HARRIS, and DIAMANTIS, JJ., concur.

W. SHARP, J., dissents with opinion.

GRIFFIN, J., dissents with opinion in which W. SHARP, J., concurs.

W. SHARP, Judge, dissenting.

I respectfully dissent. Although this is a close case, when in doubt as to whether or not there is a material question of fact in reviewing a summary judgment, the appellate court should give the benefit of the doubt to the nonmoving party, ¹ and allow a jury to resolve the issue. I concurred with a proposed opinion written by Judge Sawaya, an associate judge sitting with the original panel. I adopt and incorporate it in this opinion because it states the record and issues fully and accurately and demonstrates why the facts, taken most favorably to the plaintiffs, do not create such an open and obvious condition as to render the configuration of the curb and sidewalk not inherently dangerous as a matter of law.

It reads:

"The plaintiffs, Marsha Gorin and her husband Martin, appeal an order on motion for summary judgment entered in their personal injury lawsuit in favor of the defendants, City of St. Augustine and the Lightner Museum. This case originated on August 28, 1986, when Mrs. Gorin fell outside the Lightner Museum, injuring her elbow and leg. The museum is owned by the City of St. Augustine. On that date, Mr. and Mrs. Gorin and their grandson took a tour of St. Augustine on a train operated by St. Augustine Trains, Inc., which remains a defendant in the trial proceedings. The train picked them up and dropped them off at various tourist sites, including the Lightner Museum. Mrs. Gorin disembarked at the museum without incident, completed a tour and returned outside to reboard the train. While walking toward the train, Mrs. Gorin missed a step over a curb and fell, sustaining injuries. Mrs. Gorin testified that she was watching where she was going but was unaware of the curb and did not see any change in levels."

"Mrs. Gorin fell at a location in front of the museum where the trains discharge and pick up passengers. A semicircular driveway abuts the sidewalk in this location and the trains drive into this driveway and park as close to the sidewalk as possible. There is a drop-off from the sidewalk curb to the driveway which is maintained by the City of St. Augustine. The sidewalk, curb, and driveway are all the same color and there are no markings to distinguish the change in levels. Four or five other women have fallen on prior occasions in the same location and in the same manner as Mrs. Gorin. These incidents were reported to the defendants prior to Mrs. Gorin's accident."

"The lower ...