Pep Boys v. FOUR SEASONS COMMERCIAL, 4D03-4610.

• Decision Date: 26 January 2005
• Docket Number: No. 4D03-4610.,4D03-4610.
• Citation: 891 So.2d 1160
• Parties: The PEP BOYS-MANNY, MOE & JACK, INC., a Florida corporation, Appellant, v. FOUR SEASONS COMMERCIAL MAINTENANCE INC., Ferrari Construction Co., Inc., and Joseph Adamo, Jr., Appellees.
• Court: Florida District Court of Appeals

891 So.2d 1160

The PEP BOYS-MANNY, MOE & JACK, INC., a Florida corporation, Appellant, v. FOUR SEASONS COMMERCIAL MAINTENANCE INC., Ferrari Construction Co., Inc., and Joseph Adamo, Jr., Appellees.

No. 4D03-4610.

District Court of Appeal of Florida, Fourth District.

January 26, 2005.

Richard G. Bartmon, Rhea P. Grossman and J. Frank Beauchamp, III of Carman, Beauchamp & Sang, P.A., Boca Raton, for appellant.

Luis J. Perdomo and Paul H. Field of Lane, Reese, Aulick, Summers & Field, P.A., Coral Gables, for Appellees-Four Seasons Commercial Maintenance, Inc. and Ferrari Construction Co., Inc.

STONE, J.

A customer of The Pep Boys-Manny, Moe & Jack, Inc. (Pep Boys) was injured in a trip and fall accident, allegedly caused by a nail protruding from an asphalt parking lot. Three months earlier, protective "parking bollards" were installed in that area as a barrier between cars and the Pep Boys building. Four Seasons Commercial Maintenance, Inc. and Ferrari Construction Co., Inc. (the contractor) performed the installation. The complaint assumes that the nail was a defect resulting from the installation of the "parking bollards."

The trial court granted summary judgment in favor of the contractor because Pep Boys presented no evidence that the protruding nail was not discernable or that the dangerous nature of the nail would not have been discoverable during the course of a reasonable inspection. We reverse.

The complaint asserts the plaintiff's injury was a result of Pep Boys' negligence in maintaining its premises. It also claims the contractor had a duty to exercise reasonable care in performing the project and the duty was breached by creating a dangerous latent condition on the premises. The contractor responded by the motion for summary judgment, asserting that Slavin v. Kay, 108 So.2d 462 (Fla.1959), is controlling and that summary judgment must be granted as a matter of law because Pep Boys had accepted the project from the contractor and "the defective nature of the imbedded nail was obvious to Pep Boys and clearly discoverable upon reasonable inspection."

In Slavin, the Florida Supreme Court determined that a contractor is not liable to third parties once the work has been accepted by the owner of the premises and the owner has knowledge of the defect, or the defective nature of the condition is patent. Id. at 466. The test for patency is whether the defective nature of the condition would be obvious to the owner with the exercise of reasonable care. See Kala Inv., Inc. v. Sklar, 538 So.2d 909, 913 (Fla. 3d DCA 1989). The holding in Slavin is based on the "principle that it would be unfair to continue to hold the contractor responsible for patent defects after the owner had accepted the improvements and undertaken its maintenance and repair...." Easterday v. Masiello, 518 So.2d 260, 261 (Fla.1988).

We conclude that material issues of fact exist as to the patency of the defective condition. Therefore, the trial court erred in granting the motion for summary judgment. Where the record demonstrates the possibility of a disputed fact, summary judgment is improper. Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). Every possible inference must be viewed in favor of the non-moving party and, if there is any doubt that a material issue remains unresolved, summary judgment must be reversed. See Moore v. Morris, 475 So.2d 666 (Fla.1985).

Pep Boys' response in opposition to summary judgment contests the contractor's contention that the nail was an obvious condition. There is deposition testimony by the plaintiff that the nail was dark in color and blended in with the surrounding asphalt, making it difficult to see. Further, the manager of Pep Boys stated the nail was not readily observable and that he had never noticed it in the...