Kupperman v. Levine, 84-1177
| Decision Date | 09 January 1985 |
| Docket Number | No. 84-1177,84-1177 |
| Citation | 10 Fla. L. Weekly 166,462 So.2d 90 |
| Parties | 10 Fla. L. Weekly 166 Esther KUPPERMAN and Fred Kupperman, her husband, Appellants, v. Daniel LEVINE and Barbara Levine, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Larry Klein, West Palm Beach, and Easley Massa & Willits, West Palm Beach, for appellants.
Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellees.
Appellants challenge the dismissal of their amended complaint for damages arising out of Esther Kupperman's fall in appellees' home.
Appellants alleged that:
On or about February 14, 1983, there existed upon Defendants' premises an inherently dangerous and non-obvious condition, to-wit: a dining table around which the associated chairs all appeared to be of the same overall height, but which in reality were not, due to a change in floor grade. Such condition was caused by a combination of factors including: floor grade change, poor lighting, chairs with chair backs and seats of even height, some of which had longer legs to accomodate the change in floor grade, part way around the table, and all of which presented an optical illusion, thereby creating a latently dangerous condition.
The trial court granted appellees' motion to dismiss the amended complaint with prejudice and on the authority of Schoen v. Gilbert, 436 So.2d 75 (Fla.1983). In Schoen, the supreme court held:
[A] difference in floor levels does not of itself constitute failure to use due care for the safety of a person invited to the premises and there is no duty to issue warning of such condition when it is obvious and not inherently dangerous." Hoag v. Moeller, 82 So.2d 138, 139 (Fla.1955). See also General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964).
....
Because a difference in floor levels is not an inherently dangerous condition, even in dim lighting, a homeowner has no duty to warn of such condition as a matter of law.
Id. at 76 [emphasis added].
In Schoen the court said that changing floor levels between rooms is so common a mode of construction that even dim lighting would not transform the difference in floor level into an inherently dangerous condition. Sub judice, appellants have alleged more than a change in floor levels and dim lighting. They also allege an uncommon mode of construction--a change of floor level in the middle of a room--and a choice of furniture designed to create the illusion of a level floor.
On motion to dismiss our review is limited to the four corners of the complaint and the allegations must be taken as true. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). Therefore we hold that appellants have alleged sufficient facts to distinguish this case from the facts presented on summary judgment in Schoen. However, appellants shall have the burden to prove a causal relationship between the deceptive condition which they allege and...
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...a matter of law. See Northwest Florida Crippled Children's Association v. Harigel, 479 So.2d 831 (Fla. 1st DCA 1985); Kupperman v. Levine, 462 So.2d 90 (Fla. 4th DCA 1985). Such considerations maintain the equilibrium between competing policy considerations of protecting proprietary interes......
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Sanford v. Omni Hotels Mgmt. Corp., Case No. 3:16-cv-1578-J-34PDB
...flatness, the change in floor level must be concealed by something more than a uniform color scheme. For example, in Kupperman v. Levine, 462 So. 2d 90 (Fla. 1st DCA 1985), the court reversed the dismissal of a complaint based on its finding that the plaintiffs sufficiently pled that the la......
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Hernandez v. Amisub (American Hosp.), Inc.
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