Kagan v. Eisenstadt

• Citation: 98 So.2d 370
• Decision Date: 19 November 1957
• Docket Number: No. 57-124,57-124
• Parties: Robert KAGAN, Appellant, v. Irving S. EISENSTADT, d/b/a Escott Construction Co., and Fem Corporation, a Florida corporation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 370

98 So.2d 370

Robert KAGAN, Appellant, v. Irving S. EISENSTADT, d/b/a Escott Construction Co., and Fem Corporation, a Florida corporation, Appellees.

No. 57-124.

District Court of Appeal of Florida, Third District.

Nov. 19, 1957.

Barry L. Garber and Von Zamft & Kravitz, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for appellees.

HORTON, Judge.

Summary judgment was entered by the lower court against the appellant and this appeal is from that judgment. The facts were established by the appellant's deposition and are not in dispute.

Appellees were in the process of constructing apartment buildings on Miami Beach when the appellant, an experienced lumber salesman, came upon the premises in an attempt to sell some lumber. He had visited the job site regularly and was familiar with the plans of the buildings. The appellant successded in obtaining an order from appellee, Eisenstadt, who requested that he count the number of rafters and ceiling joists needed to complete the job. Before entering the building, the appellant inquired as to whether the building was safe and Eisentadt informed him that it was, that the subflooring was in but to watch out for the open stairwell. Appellant climbed an outside stairway, entered the building and proceeded to count the rafters. As he passed the stairwell, his foot caught in a hole, he lost his balance and fell through the open stairwell. The appellant testified, by way of deposition, that he was not looking any particular place but just walking along in a normal manner.

It is not disputed that the appellant had entered the premises for the purpose of making a lumber sale and that he was a business invitee, either by express or implied invitation. It is incumbent upon the person in control of the premises to exercise ordinary care for the safety of business invitees and to warn them of any latent defects known to him, or by the exercise of due care should have been known to him, that might cause injury if encountered. See Hall v. Holland, Fla.1950, 47 So.2d 889. This rule must be considered in light of all the facts and circumstances of a particular case. When an invitation is made to use the facilities of premises under construction, the invitation is made subject to the conditions that exist and the invitee must assume the risk of such conditions. 65 C.J.S. Negligence § 50, p. 545. It is reasonable to expect to encounter conditions which do not offer the safeguards of a completely constructed building when entering a building only partially constructed. See Hickory House, Inc., v. Brown, Fla.1955, 77 So.2d 249; Hall v. Holland, supra; cf. Forgione v. Frankini Construction Co., 1941, 308 Mass. 29, 30 N.E.2d 819; ...