Hall v. Holton

• Decision Date: 26 March 1976
• Docket Number: No. 75--587,75--587
• Citation: 330 So.2d 81
• Parties: William J. HALL and Janet E. Hall, Appellants, v. Jack J. HOLTON and Zurich Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 81

330 So.2d 81

William J. HALL and Janet E. Hall, Appellants, v. Jack J. HOLTON and Zurich Insurance Company, Appellees.

No. 75--587.

District Court of Appeal of Florida, Second District.

March 26, 1976.

As Corrected on Denial of Rehearing April 28, 1976.

John L. McFadyen, St. Petersburg, Kenneth M. Wilkinson, and John A. Lloyd, Jr., P.A., St. Petersburg, for appellants.

Jeffrey S. O'Brien and C. S. Carrere of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellees.

GRIMES, Judge.

This is an appeal from a summary judgment entered against a policeman who fell through the floor of an abandoned building while he was checking it out for vagrants.

Appellee, Holton, owned a building located in the path of the proposed extension of Interstate 4. The building had been abandoned and allowed to run down because it was doing to be condemned by the Department of Transportation. On several occasions prior to the accident, Holton had been notified by the St. Petersburg Building Department to repair the floors because they were rotten. Holton did not make the repairs because the Department of Transportation told him that doing so would only increase the condemnation value of the property. Holton knew the building had often been the sleeping place of vagrants and other street people. He said he had caused the doors to be locked and the lower windows to be boarded up in an effort to try to keep these people out of the building.

In the dark early morning hours of the day the accident occurred, appellant, Hall, in the course of his duties as a police officer, went into the building through an unlocked rear door because he thought he had seen a light coming from a second story window. Finding nothing, he left but returned after it became light to further pursue his investigation. While on the second floor, the plaintiff fell through the floor and was injured.

The court entered summary judgment on two grounds:

(1) Holton violated no duty to Hall who occupied the status of an uninvited licensee; and

(2) The defense of assumption of risk was a complete bar to Hall's recovery.

We shall discuss both of these points in turn.

Determining the legal status occupied by a policeman while on the land of another has always been troublesome. Most jurisdictions have held policemen to be licensees, primarily upon the theory that it would place too much of a burden on landowners to classify them as invitees. See 86 A.L.R.2d 1184. The Supreme Court of Florida adopted this principle by dictum in Fred Howland, Inc. v. Morris, 1940, 143 Fla. 189, 196 So. 472. Thereafter, in Romedy v. Johnston, Fla.App.1st, 1967, 193 So.2d 487, the First District Court of Appeal held that a fireman was a licensee and assumed that a policeman occupied the same category. Finally, in Adair v. The Island Club, Fla.App.2d, 1969, 225 So.2d 541, this court squarely held that a policeman was a licensee. Thus, there is no Florida case which has held that a policeman occupies any higher status than a licensee. In spite of the foregoing authorities, Hall argues that the more recent case of Wood v. Camp, Fla.1973, 284 So.2d 691, had the effect of elevating his status to that of an invitee. We cannot accept this contention because there is no showing that he was either expressly or impliedly invited to Holton's building. Since the issue is not before us, we express no opinion on whether Hall would have been an invitee under the rationale of Wood had the record reflected such an invitation.

Therefore, the court correctly categorized Hall as an uninvited licensee. But upon this record does this mean that he must suffer summary judgment against him as a matter of law? The duty owed to a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146. Even though Hall knew the building was run down, there were no holes in the floor, and the record does not sufficiently indicate that Hall should have known that the floor wouldn't hold his weight. On the other hand, Holton had been specifically advised that the floors were rotten, but he had taken no steps to repair them. While Holton testified that he had directed the doors to be locked and bolted, Hall said he entered the building through an unlocked rear door. There were no signs posted to warn of the danger. Thus, it appears that there were issues of fact as to (1) whether there existed a dangerous condition known to the owner but not open to ordinary observation which placed upon him a duty to warn, and if so, (2) whether the owner adequately fulfilled this duty.

Our discussion of this issue could be terminated at this point were it not for the fact that in defining the duty owed to a licensee at least two Florida cases have added a caveat to the effect that before the duty to warn of a hidden danger arises, the presence of the licensee on the premises must be known by the owner. City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644; Romedy v. Johnston, supra. While such statements only constituted dicta in both cases, we would readily concede that a strict requirement of knowledge makes good sense in many circumstances. For example, a person who finds himself on another's premises as a result of an emergency has usually been categorized as a licensee. Restatement of Torts 2d, § 330, comment e. Yet, if the landowner has no reason to believe he is coming, it would be an undue burden to require him to warn of all dangerous but hidden conditions on the property even assuming this could be accomplished. Logic would dictate the application of the same rule with respect to a policeman who happens to be crossing an owner's premises while chasing a person who has just burglarized a neighboring home. Where, however, the circumstances are such that one might reasonably expect the presence of a licensee at the site of a hidden but dangerous condition on his premises, we think that it is not too much to ask that the landowner erect signs or take other suitable precautions to warn the licensee when he comes. Thus, we construe the requirement of knowledge of the licensee's presence to include those circumstances where the owner could reasonably anticipate that the licensee would be on his premises. See 62 Am.Jur.2d, Premises Liability, § 84.

As related to the instant case, the police, themselves, had advised Holton that vagrants were making themselves at home in his unoccupied building. He also knew that for this reason the police were making periodic inspections of the premises. Thus, Holton has not satisfied his summary judgment burden of demonstrating that he had no reason to anticipate the presence of police officers in his building. Smith v. Avis Rent-A-Car System, Inc., F...