Morris v. Florentes, Inc., 81-1473
| Decision Date | 06 October 1982 |
| Docket Number | No. 81-1473,81-1473 |
| Parties | Clinton E. MORRIS, Jr., Appellant, v. FLORENTES, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
James O. Cunningham of Billings, Morgan & Cunningham, Orlando, and Marcia K. Lippincott, Sanford, for appellant.
E. Clay Parker of Parker, Johnson, Owen & McGuire, Orlando, for appellees.
Clinton Morris, Jr. appeals from an order dismissing his second amended complaint with prejudice for failure to state a cause of action.
Morris was riding a motorcycle known as a "dirt bike" on property owned by Florentes, Inc. and was injured when his bike hit the bank of a ditch which cut across the trail. Morris filed suit against Florentes alleging that Florentes knew or should have known that its property was commonly used in the recreational operation of dirt bikes, that such use had not been restricted or prohibited by Florentes, that Morris was a foreseeable but uninvited user of an existing bike trail on the property, that the ditch presented an extreme danger to those unfamiliar with the bike trail, that Florentes had a duty to warn of this condition, and that as a result of Florentes' negligence, Morris sustained serious injuries.
We agree that the second amended complaint failed to state a cause of action. The appropriate duty of care owed a visitor by the owner or occupier is determined by the status of the visitor. Post v. Lunney, 261 So.2d 146 (Fla.1972). Here, Morris was, at best, an uninvited licensee; 1 at worst, a trespasser. This court has recently noted that the distinction between the duty owed by a landowner to these two classes is hazy (if a distinction exists), but that the labels have been preserved. Dougherty v. Hernando County, 419 So.2d 679 (Fla. 5th DCA 1982) [1982 F.L.W.1815]. The duty owed by a landowner to an uninvited licensee or a discovered trespasser is essentially the same: to avoid willful and wanton harm to him, and to warn him of a defect or condition known by the landowner to be dangerous when such danger is not open to ordinary observation by the licensee or trespasser. Post v. Lunney.
When the factual allegations of Morris' second amended complaint (as distinguished from its conclusions), are measured against Florentes' obligations to him, it becomes clear that a cause of action was not stated. There is no allegation that Florentes acted in a willful and wanton manner. Florentes' duty to warn related only to those dangerous conditions known to it which were not open to...
To continue reading
Request your trial
-
Florida East Coast Ry. Co. v. Shulman
...a defect or condition known by the landlord to be dangerous when such danger is not open to ordinary observation. Morris v. Florentes, Inc., 421 So.2d 582 (Fla. 5th DCA 1982); Florida East Coast Railway Co. v. Gonsiorowski, 418 So.2d 382 (Fla. 4th DCA 1982), pet. for rev. denied, 427 So.2d ......
-
Poe v. IMC PHOSPHATES MP, INC.
...landowner to be dangerous when such danger is not open to ordinary observation by the licensee or trespasser." Morris v. Florentes, Inc., 421 So.2d 582, 583 (Fla. 5th DCA 1982). According to IMC, the large pipe was open and obvious to motorists, and it was not foreseeable that Mr. Poe would......
-
Barrio v. City of Miami Beach, 96-2983
...duty of care owed by the landowner varies according to the visitor's status. See Lukancich, 583 So.2d at 1072; Morris v. Florentes, Inc., 421 So.2d 582, 583 (Fla. 5th DCA 1982); Zipkin, 418 So.2d at Based upon the undisputed record evidence, we reject Ms. Barrio's contention that she was an......
-
Kapetanopoulos v. Herbert, 83-1591
...appellants have not asserted meritorious defenses. See, e.g., Simms v. Kennedy, 74 Fla. 411, 76 So. 739 (1918); Morris v. Florentes, Inc., 421 So.2d 582 (Fla. 5th DCA 1982); McDonald v. Wingard, 309 So.2d 192 (Fla. 1st DCA 1975); Pinson v. Barlow, 209 So.2d 722 (Fla. 2d DCA 1968), overruled......