Lukancich v. City of Tampa

• Decision Date: 10 July 1991
• Docket Number: No. 90-02078,90-02078
• Parties: 16 Fla. L. Weekly D1814 Janie R. LUKANCICH, personally and as natural guardian and next friend to Michelle Lee Lukancich, her minor child, Appellant, v. CITY OF TAMPA, Appellee.
• Court: Florida District Court of Appeals

Page 1070

583 So.2d 1070

16 Fla. L. Weekly D1814

Janie R. LUKANCICH, personally and as natural guardian and next friend to Michelle Lee Lukancich, her minor child, Appellant, v. CITY OF TAMPA, Appellee.

No. 90-02078.

District Court of Appeal of Florida,

Second District.

July 10, 1991.

Edward B. Knauer, Tampa, for appellant.

Pamela K. Akin, City Atty., and Jack M. Larkin, Asst. City Atty., Tampa, for appellee.

PARKER, Judge.

Janie R. Lukancich, personally and as natural guardian and next friend to Michelle Lee Lukancich, her minor child, plaintiff in the trial court, appeals a summary judgment entered in favor of the City of Tampa in an action for personal injury- /premises liability. We reverse, concluding that there are disputed issues of material fact which preclude the entry of summary judgment.

Michelle injured her eye in 1985 while playing with friends and her sister in an alley near her residence. The alley, approximately ten feet wide and running behind residences on both sides, contained weeds and bushes as tall as Michelle and debris consisting of sticks, branches, leaves, bottles, cans, and other waste materials. Michelle testified that the weeds and bushes prevented her from seeing the object which caused her to stumble and fall. Although there was impeachment of her testimony at deposition, Karen Helton, a friend of Michelle, testified that Michelle fell because of all the grass and debris.

In her fourth amended complaint, appellant alleged that Michelle went upon the property as an invitee. The City filed a motion for summary judgment, alleging that Michelle was not an invitee but, at most, an uninvited licensee or trespasser and, therefore, the City breached no duty which was owed to her. The trial court granted the motion for summary judgment in favor of the City, finding as a matter of law that appellant's minor child was either an uninvited licensee or trespasser.

A person who goes upon the property of another is either an invitee, licensee, or trespasser. Post v. Lunney, 261 So.2d 146 (Fla.1972). A public invitee is a licensee on the premises by invitation, either express or reasonably implied, of the owner or controller of the property. Wood v. Camp, 284 So.2d 691 (Fla.1973). ¹ An uninvited licensee is a person who chooses "to come upon the premises solely for ... [his] own convenience without invitation either expressed or reasonably implied under the circumstances." Wood, 284 So.2d at 695. Finally, a trespasser is a person "who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity." Post, 261 So.2d at 147 (quoting 23 Fla.Jur. Negligence Sec. 54 (1959)).

The importance of the classification is that the owner or controller of the property owes varying degrees of care based on whether the person is an invitee, licensee, or trespasser. The status of the person on the premises of another is generally a question of fact. Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA), cert. denied, 348 So.2d 946 (Fla.1977). The case of Bottita v. Florida Power & Light Company, 534 So.2d 1198 (Fla. 4th DCA 1988), which is similar to the instant case, demonstrates this legal principle. In Bottita, a child was injured while playing with other children when she fell over a Florida Power transformer located between two of her neighbor's homes. The fourth district held that summary judgment was improper because there was a question of fact regarding the status of the child. The concurring opinion noted that the child fell "where children, like the minor plaintiff, were free to come and go." Bottita, 534 So.2d at 1199 (Anstead, J., concurring specially). Likewise, it cannot be said as a matter of law in the instant case that the minor plaintiff was not an invitee by virtue of being a licensee by implied invitation.

Even if the minor plaintiff were found to be an uninvited licensee, there are disputed facts in the record regarding whether the City exercised the requisite degree of care. An owner or controller of property must refrain from wanton negligence or wilful misconduct which would injure an uninvited licensee, must refrain from intentionally exposing the uninvited licensee to danger, and must warn an uninvited licensee of a defect or condition known to the owner or controller of the land when the danger is not open to ordinary observation by the licensee. Collom v. Holton, 449 So.2d 1003 (Fla. 2d DCA 1984). It is disputed whether the City knew of the dangerous condition on the land. The City alleged in an affidavit in support of its motion for summary judgment that it did not know the condition of the alleyway. On the other hand, appellant presented evidence from which it could be inferred reasonably that the City controlled and maintained the land and, therefore, knew or should have known of the dangerous condition of the land. In opposition to the City's motion, Patrick Hughes, an adjoining property owner, testified that the City cleaned the alley on a regular basis from the early 1950's until approximately 1964 and occasionally thereafter. Sarah Busciglio, another adjoining property owner, submitted an affidavit that stated that the City had controlled and maintained the alley since 1967 and had...