Knight v. Waltman, 2D99-3855.

• Decision Date: 27 October 2000
• Docket Number: No. 2D99-3855.,2D99-3855.
• Citation: 774 So.2d 731
• Parties: Phillip A. KNIGHT and Brenda Fae Knight, Appellants, v. Robert M. WALTMAN and Hazel C. Waltman, Appellees.
• Court: Florida District Court of Appeals

774 So.2d 731

Phillip A. KNIGHT and Brenda Fae Knight, Appellants, v. Robert M. WALTMAN and Hazel C. Waltman, Appellees.

No. 2D99-3855.

District Court of Appeal of Florida, Second District.

October 27, 2000.

Joshua E. Burnett of Gardner, Wilkes, Shaheen & Candelora, Tampa, for Appellants.

Charles W. Hall of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., St. Petersburg; and Charles Tyler Cone of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for Appellees.

PARKER, Judge.

Phillip A. Knight and Brenda Fae Knight, plaintiffs in the trial court, challenge the trial court's order granting final summary judgment in favor of the defendants, Robert M. Waltman and Hazel C. Waltman, in this personal injury action. We agree that the trial court properly granted summary judgment on the Knights' claims for negligence and failure to warn; however, we reverse the summary judgment on the Knights' premises liability claim for failure to maintain the premises in a reasonably safe condition and remand for further proceedings.

The evidence before the trial court showed that in November 1994 Mr. Waltman began reroofing his house. Mr. Waltman enlisted the gratuitous assistance of both Mr. Knight and John Heth, Mr. Waltman's son-in-law, with the project. Mr. Waltman had two or three years of experience as a roofer. Mr. Knight had no such experience.

On the first day of work, the three men pulled all of the shingles off the roof. After removing the shingles, they checked the roof for rotten wood. Several rotten areas were discovered, including one on the right front corner of the roof over the eave. While Mr. Waltman took care of other work, Mr. Knight and Mr. Heth cut out the rotten wood, leaving holes in the roof. Mr. Waltman inspected the holes, including the hole in the right front corner of the roof, to determine what type of repair would be necessary. Mr. Waltman then left to purchase wood to repair the holes. After Mr. Waltman returned, all three men continued to work on the roof until it began to get dark; however, they did not repair the holes in the roof. When they were finished for the day, Mr. Waltman began cleaning up on the ground while Mr. Knight and Mr. Heth covered the holes in the roof with tarpaper. While the hole in the right front corner of the roof was visible from underneath the eave, no one marked the covered holes on the roof, erected barricades around the holes, or took any other steps to warn of the holes. Mr. Waltman was aware that the holes in the roof, including the one at the right front corner, had not been repaired and had been covered only with tarpaper.

The following morning, the men began shingling the back side of the roof. While Mr. Knight was shingling, Mr. Waltman got off the roof and went to the front of the house to get the materials. Mr. Waltman then took the materials to the right front corner of the house and called for Mr. Knight to come and get them. As Mr. Knight walked across the roof to take the materials from Mr. Waltman, his foot went through the tarpaper covering the hole at the right front corner of the roof, causing him to fall and injure his knee.

In his deposition, Mr. Waltman admitted that he should have put something over the holes in the roof and that he was partially at fault for Mr. Knight's injuries. Mr. Waltman also admitted that when he was working as a roofer, his employer would not have allowed a hole in a roof to be left unrepaired overnight because of the danger of an accident such as this.

In their complaint, the Knights alleged that the Waltmans were liable for Mr. Knight's injuries under two theories of premises liability and under a separate negligence theory for "luring" Mr. Knight to the danger. We reject Mr. Knight's claim for "negligent luring" and affirm summary judgment on that count. As to the premises liability theories, we affirm in part and reverse in part.

Under premises liability law, a landowner owes two duties to an invitee:

(1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.

Pittman v. Volusia County, 380 So.2d 1192, 1193 (Fla. 5th DCA 1980); see also Spadafora v. Carlo, 569 So.2d 1329, 1330 (Fla. 2d DCA 1990)

; Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989, 990 (Fla. 2d DCA 1980). The Knights argue that the Waltmans breached both duties.

Taking the duty to warn first, an invitee¹ cannot recover from a landowner based on the failure to warn of a danger on the property when the invitee's knowledge of the danger is equal to or superior to the landowner's knowledge. See Ahl v. Stone S.W., Inc., 666 So.2d 922, 923 (Fla. 1st DCA 1995)

; Miller v. Wallace, 591 So.2d 971, 973 (Fla. 5th DCA 1991). Therefore, in order to prevail on a theory of breach of a duty to warn, the Knights had to establish that Mr. Waltman's knowledge of the danger presented by the covered hole in the roof was superior to Mr. Knight's.

In this case, however, the undisputed evidence shows that Mr. Knight not only knew of the hole in the roof, but in fact created it. Moreover, Mr. Knight is the one who covered the hole with tarpaper, thus concealing it from view. Mr. Waltman was told of the hole only after it was created, and he did nothing to conceal it from view. Therefore, the undisputed evidence shows that Mr. Knight's knowledge of...