Marriott Intl., Inc. v. Perez-Melendez, 092603 FLCA5, 5D02-1624

Docket Nº092603 FLCA5, 5D02-1624
Party NameMarriott Intl.
Case DateSeptember 26, 2003

MARRIOTT INTERNATIONAL, INC., Appellant/Cross-Appellee,

v.

ZAIRA PEREZ-MELENDEZ, Appellee/Cross-Appellant.

Case No. 5D02-1624

Florida Court of Appeal, Fifth District

September 26, 2003

Appeal from the Circuit Court for Orange County, William C. Gridley, Judge.

Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa and John H. Ward of Brown, Ward, Salzman & Weiss, Orlando, for Appellant/Cross-Appellee.

Elizabeth H. Faiella of Elizabeth H. Faiella, P.A., Winter Park and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellee/Cross- Appellant.

SAWAYA, C.J.

Marriott International, Inc. (Marriott) has filed a motion for rehearing, clarification and certification with respect to our opinion entered in this appeal on July 25, 2003. Although we deny Marriott's motion, we will address certain of the issues raised therein.

Marriott contends in its motion for rehearing, clarification and certification that this court has misapprehended the proper standard of review because the issue of whether the condition on the premises is dangerous is a question of law rather than an issue of fact for the jury to resolve. In support of that contention, Marriott cites several cases from this court: City of Melbourne v. Dunn, 841 So.2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Property Management, 779 So.2d 621 (Fla. 5th DCA), review denied, 799 So.2d 219 (Fla. 2001); Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001); Rosenfeld v. Walt Disney World Co., 651 So.2d 811 (Fla. 5th DCA 1995); Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5thDCA), review denied,604 So.2d 486 (Fla. 1992); and Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990). Marriott also cites several cases from other courts: Casby v. Flint, 520 So.2d 281 (Fla. 1988); Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983); Hoag v. Moeller, 82 So.2d 138 (Fla. 1955); Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA), review denied, 574 So.2d 142 (Fla. 1990); McAllister v. Robbins, 542 So.2d 470 (Fla. 1st DCA 1989). Marriott contends that the decision in the instant case directly conflicts with these decisions and that certification of conflict is appropriate. We disagree.

All of the cases cited by Marriott are inapplicable to the instant case because the basis for the ruling in each was the open and obvious danger doctrine, a doctrine not raised in...

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