Rocamonde v. Marshalls of Ma Inc.

• Decision Date: 09 March 2011
• Docket Number: No. 3D10–1088.,3D10–1088.
• Citation: 56 So.3d 863
• Parties: Maria ROCAMONDE, Appellant,v.MARSHALLS OF MA, INC., Appellee.
• Court: Florida District Court of Appeals

56 So.3d 863

Maria ROCAMONDE, Appellant,

v.MARSHALLS OF MA, INC., Appellee.

No. 3D10–1088.

District Court of Appeal of Florida, Third District.

March 9, 2011.

Billbrough & Marks, and Geoffrey B. Marks, Coral Gables, for appellant.Wicker Law Firm, and Vivianne A. Wicker, Coral Gables, and James Sherman, Tallahassee, for appellee.Before WELLS, SALTER, and EMAS, JJ.EMAS, J.

This is an appeal of a summary final judgment entered in favor of Marshalls of Ma, Inc. Finding that genuine issues of material fact remain, we reverse.

On February 2, 2007, Appellant, Maria Rocamonde (Rocamonde) sustained injuries when she tripped over a mobile clothing rack within Appellee's premises (Marshalls). Rocamonde filed a negligence action against Marshalls, alleging that Marshalls breached its duty to operate and maintain the store in a reasonably safe condition, free from dangerous conditions or concealed perils within its premises or in failing to warn of such conditions. Marshalls denied the allegations of negligence, and asserted that it had no notice of the alleged dangerous condition or, alternatively, that such condition was open and obvious to Rocamonde. Marshalls moved for summary judgment, attaching Rocamonde's deposition transcript and the deposition transcript of Marshalls' employee, Marinna Lopez.

Rocamonde's deposition testimony established that prior to her fall, she visited the Marshalls store weekly and had done so for more than ten years. On the day of the accident, Rocamonde was walking down the center aisle of the store, toward the shoe department. She noticed a temporary clothing rack in the aisle, which she described as “S”-shaped. Clothing was hanging from the top bar of the rack, and Rocamonde did not see the base of the rack. As she turned toward the shoe department, she tripped over a piece of iron protruding from the bottom of the rack, “got tangled up with the S the rack makes, and ... fell forward.” She had seen these “S racks” in the store before, but testified that she “did not know that on the bottom [of the rack] it has some steel that overlaps.” Rocamonde testified that she attempted to walk around the rack and would have walked more to the side to get around the rack had she known that it was sticking out as much as it was.

Marshalls' employee, Marinna Lopez, testified in her deposition that the rack in question is a mobile “Z”-rack, and is used to transport merchandise to different areas of the store.

At the summary judgment hearing, counsel for Rocamonde argued there were genuine issues of material fact as to whether a hidden protrusion at the bottom of the rack caused Rocamonde's fall. Marshalls argued it had no duty to warn as the danger was not hidden or concealed, but was open and obvious. The court entered final summary judgment in Marshalls' favor, and in its order, set forth findings of fact, which were, in pertinent part, that Rocamonde fell over a mobile Z-rack used to transport inventory throughout the store, which had been positioned in an aisle; that Rocamonde “tripped over the lower portion of the rack which protruded further than the upper portion”; that Rocamonde did not look at the base of the rack prior to her fall, but nothing prevented her from doing so; that Rocamonde observed the rack and nothing prevented her from walking around the other side; and that Rocamonde had visited the store once per week for the year preceding her fall and previously had seen the base of the racks.

The granting of summary judgment is subject to de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). The appellate court is required to “consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Tropical Glass & Constr. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009), quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). In negligence suits particularly, “summary judgments should be cautiously granted.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id., (citing Williams v. Lake City, 62 So.2d 732 (Fla.1953)). Summary judgment should not be granted “unless the facts are so crystallized that nothing remains but questions of law.” Id., (citing Shaffran v. Holness, 93 So.2d 94 (Fla.1957)).

A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition. Westchester Exxon v. Valdes, 524 So.2d 452, 455 (Fla. 3d DCA 1988).

These two duties are separate and distinct, and a landowner's compliance with the duty to warn (or the open and obvious nature of the danger) does not necessarily mean the landowner has satisfied the duty to maintain the premises in a reasonably safe condition:

While the open and obvious nature of a hazard...