Johnson v. Rinker Materials, Inc., 87-325

• Decision Date: 01 March 1988
• Docket Number: No. 87-325,87-325
• Parties: 13 Fla. L. Weekly 559 William A. JOHNSON, as personal representative of the Estate of William Garrett Johnson, Appellant, v. RINKER MATERIALS, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 684

520 So.2d 684

13 Fla. L. Weekly 559

William A. JOHNSON, as personal representative of the Estate of William Garrett Johnson, Appellant, v. RINKER MATERIALS, INC., a Florida corporation, Appellee.

No. 87-325.

District Court of Appeal of Florida,

Third District.

March 1, 1988.

Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh and Herman J. Russomanno and Sally R. Doerner, Miami, for appellant.

Highsmith, Strauss & Glatzer and Phillip Glatzer, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.

HUBBART, Judge.

This is an appeal by the plaintiff from an adverse final summary judgment entered in a wrongful death action arising out of a fatal, late-night accident on the defendant's land. It appears that the plaintiff's decedent was killed while joy-riding on an all-terrain cycle (ATC) up a sand hill located on the premises of the defendant's cement plant and sand quarry. The central issue presented for review is whether the defendant breached any legal duty owed to the plaintiff's decedent by failing to warn the latter concerning the known dangerous condition of the sand hill--the sole claimed negligence in this case. For the reasons which follow, we affirm.

I

The facts of this case, for summary judgment purposes, are as follows. ¹ The defendant Rinker Materials, Inc. [Rinker] owns and operates a large cement plant and sand quarry located at N.W. 137 Avenue and N.W. 12 Street in Dade County, Florida. In connection with its cement manufacturing operations, Rinker maintains large hills of raw materials on the premises; the contours of these mounds frequently change as the material therein is used or discarded in the cement manufacturing process. These mounds, in turn, have long attracted ATC enthusiasts who liked to joy-ride over them for recreational purposes; in particular, the plaintiff's decedent, William Garrett Johnson [Garrett] and his friends frequently engaged in such ATC joy-riding on the Rinker property, with Garrett having been there over twenty times. This trespassing, however, was clearly not tolerated by Rinker as it posted a twenty-four-hour guard at the entrance to its property and a periodic roving guard on weekends with strict instructions to expel all trespassers, posted and regularly maintained approximately one hundred "no trespassing" signs around the fenced perimeter of the property, and reported all trespassing incidents to the police. Pursuant to this policy, Garrett and others known to him had been previously chased off the Rinker property by Rinker personnel. Despite these efforts, however, Rinker was aware that ATC enthusiasts, like Garrett, would frequently break their security and joy-ride on the aforesaid hills; there was, in fact, one ATC accident involving injuries at the plant prior to the fatality in this case.

On September 6, 1985, a weekend night, Garrett and ten to twelve of his friends met at approximately 9:00 P.M. at a convenience store in west Dade County where they consumed a few beers. As was their custom, the group then rode their ATCs north on N.W. 137 Avenue until they came to the entrance of the Rinker property. Instead of proceeding straight through the gateway entrance, however, they went around a fenced area which opened up around a quarter of a mile beyond the guard house at a point where a train track entered the plant area. Two of Garrett's companions were sure that the Rinker guard saw them enter the property because they went within several hundred yards of the guardhouse. Garrett and his passenger were in the lead with their headlights on.

The group rode over a small, black slag hill, traversed a flat distance achieving a top speed of about 30 M.P.H., and proceeded toward a white, "sugar" sand hill composed of silica used in the manufacture of cement. The hill was about ten to twelve feet high with its contours clearly visible from the plant lights in the distance and the ATC headlights. Garrett, with a passenger aboard, went straight up the sand hill, unaware that the opposite side had recently been excavated to create a sheer cliff; as a result, Garrett and his passenger fell over the precipice to the ground at the base of the hill. The ATC landed on top of Garrett, and he died at the scene. Garrett was well aware that this and other hills on the property were constantly being dug away by Rinker in connection with its business; consequently, he always checked out the hills prior to riding them. He did not, however, do so on this fatal night, having ridden the subject hill the previous day without incident.

William Johnson, as personal representative of Garrett's estate, brought a wrongful death action against Rinker alleging that Rinker had a duty to warn Garrett about the dangerous condition created by the excavation of the "sugar hill," that its failure to do so constituted a breach of that duty, and that this breach was the proximate cause of Garrett's death. There were no allegations, however, that the failure to provide such warnings constituted willful or wanton negligence on Rinker's part; in fact, plaintiff's counsel both below and on appeal concedes that no claim for willful or wanton negligence could be made in this case.

The defendant Rinker filed a general denial answer and later moved for summary judgment based on depositions and affidavits filed in the cause which revealed the above-stated facts. Rinker argued that it had breached no duty owed to Garrett because he was a trespasser to whom no duty was owed except to refrain from willful and wanton negligence which, concededly, was not committed. The plaintiff countered that Garrett was a discovered trespasser because the Rinker guard saw Garrett and his friends enter the property--and, accordingly, Rinker owed a duty to Garrett to warn him of the alleged hidden dangerous condition of the subject sand hill; he claimed that genuine issues of material fact were presented on these issues which precluded summary judgment. The trial court entered final summary judgment for Rinker concluding that, as a matter of law, no such warning was required because the dangerous condition of the sand hill was open to ordinary observation, and consequently no legal duty was breached as to Garrett, whom the trial court found to be an uninvited licensee on Rinker's property. The plaintiff appeals.

II

We have no trouble in concluding that, as a matter of law, the defendant Rinker breached no duty owed to the plaintiff's decedent, Garrett, by failing to warn the latter concerning the known dangerous condition of the sand hill in question, and accordingly affirm. We reach this result based on the following briefly-stated legal analysis.

A

First, unlike the trial court, we think it plain on this record that Garrett was a trespasser on Rinker's land, not an uninvited licensee. Rinker (a) posted a permanent twenty-four-hour security guard and a weekend roving security guard on the premises, both with strict orders to expel all trespassers, (b) posted and regularly maintained approximately one hundred "no trespassing" signs around the fenced perimeter of its property, and (c) reported all trespassing incidents to the police....