Pittman v. Volusia County

• Decision Date: 12 March 1980
• Docket Number: No. NN-186,NN-186
• Citation: 380 So.2d 1192
• Parties: Ruby PITTMAN, Appellant, v. VOLUSIA COUNTY et al., Appellees. /T1-62.
• Court: Florida District Court of Appeals

Page 1192

380 So.2d 1192

Ruby PITTMAN, Appellant, v. VOLUSIA COUNTY et al., Appellees.

No. NN-186/T1-62.

District Court of Appeal of Florida, Fifth District.

March 12, 1980.

Daniel J. Roberson, of Roberson & Roberson, DeLand, for appellant.

Robert K. Rouse, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellees.

COBB, Judge.

This case requires a determination of the nature and extent of the duty owed to an invitee by an occupier of premises; in particular, whether or not that duty is ever greater than the mere duty to warn of dangers unknown to the invitee.

In the instant case, the plaintiff stepped in, and slipped upon, a foreign substance (which appeared to be vomit) on the steps of a public building owned and operated by the defendant, Volusia County. From the evidence adduced at trial, the plaintiff had actual knowledge of the presence of the substance; the defendant was chargeable with no more than constructive knowledge of the condition.

A property owner or occupier owes two duties to an invitee: "he must keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware." Post v. Lunney, 261 So.2d 146, 147 (Fla.1972). In Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 969-970 (Fla.1977), the dual nature of a landowner's or occupier's duties to an invitee was more clearly expressed in dictum by Justice Sundburg in a dissent in which Justices England and Overton concurred:

In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Id., quoting Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229, 233 (2d Cir. 1973).

The defendant, at the conclusion of the plaintiff's case, convinced the trial court that it was entitled to a directed verdict on the basis of the obvious danger principle set forth in Vermont Mutual Ins. Co. v. Conway, 358 So.2d 123 (Fla.1st DCA 1978) that a duty to warn does not arise if the invitee has knowledge of the danger equal or superior to that of the occupier. We agree with that statement of the law in Vermont Mutual. But we do not agree that it is dispositive of the instant case. The fallacy is in the premise that the discharge of the occupier's duty to warn by the plaintiff's actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge. ¹ To extend the obvious danger doctrine to bar a plaintiff from recovery by negating a landowner's or occupier's duty to invitees to maintain his premises in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), that liability should be apportioned according to fault. ²

The issue with which we are confronted was addressed by the Second District Court of Appeal in Heath v. First Baptist Church, 341 So.2d 265 (Fla.2d DCA 1977), cert. denied, 348 So.2d 946 (Fla.1977). The plaintiff therein tripped over a rise in the floor, which she admittedly had tripped over three or four times in the past. In reversing a summary judgment for the defense, the appellate court discussed the dual duties of a landowner:

Aside from the question of assumption of risk, there remains the question of whether an occupier of land can ever owe a duty greater than the mere duty to warn of defects unknown to the plaintiff. If there is no such duty, then assumption of risk becomes irrelevant.

The general duty of a landowner to an invitee has been described by this court as: 'the duty to use ordinary care in keeping the premises in a reasonably safe condition, and to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the plaintiff.' (emphasis supplied in original.)

Waterman v. Graham, 228 So.2d 925 (Fla.2d DCA 1969); see also Standard Jury Instruction 3.5(f). We think this statement of the rule suggests that in some circumstances the duty may extend beyond mere warning.

3. In discussing this issue, Prosser writes:

'Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.'

W. Prosser; Law of Torts 394-95 (4th Ed. 1971).

Likewise, in 2d Restatement of Torts, § 343A, it is said:

'Known or obvious dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is...