Schoen v. Gilbert, 80-163

• Decision Date: 21 April 1981
• Docket Number: No. 80-163,80-163
• Citation: 404 So.2d 128
• Parties: Sylvia SCHOEN and David Schoen, her husband, Appellants, v. Robert GILBERT and Highland Insurance Company, a foreign corporation forprofit, Appellees.
• Court: Florida District Court of Appeals

Page 128

404 So.2d 128

Sylvia SCHOEN and David Schoen, her husband, Appellants, v. Robert GILBERT and Highland Insurance Company, a foreign corporation forprofit, Appellees.

No. 80-163.

District Court of Appeal of Florida, Third District.

April 21, 1981.

Rehearing Denied Oct. 12, 1981.

Rizzo & Koltun and Dennis A. Koltun, Miami, for appellants.

Worley & Gautier and Henry H. Harnage, Miami, for appellees.

Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.

PER CURIAM.

The final summary judgment under review which was entered below in favor of the defendant Robert Gilbert and his insurer Highland Insurance Company is affirmed upon a holding that: (a) the defendant Gilbert as a landowner had no duty to warn the plaintiff Sylvia Schoen as a social guest in the defendant Gilbert's home as to a six-inch drop between the foyer and living room of the defendant's house into which the plaintiff slipped and fell, as a mere shift in the level of floors between two rooms in a house is not a dangerous condition requiring advance warning thereof; Hoag v. Moeller, 82 So.2d 138 (Fla.1955); Bowles v. Elkes Pontiac Co., 63 So.2d 769 (Fla.1953); General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964); Meyer v. Pitzele, 122 So.2d 228 (Fla. 3d DCA 1960); and (b) the fact that the foyer and living room herein were shrouded in semi-darkness at the time the plaintiff Sylvia Schoen slipped and fell did not elevate, in our view, the above natural drop-off into a dangerous condition requiring a warning thereof, as such semi-darkness was a factor which should have signaled caution to the plaintiff Sylvia Schoen and was relevant only as to said plaintiff's comparative negligence. See e. g., Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971); Trinity Episcopal Church of Vero Beach v. Hoglund, 222 So.2d 781 (Fla. 4th DCA 1969).

Affirmed.

DANIEL S. PEARSON, Judge, dissenting.

I respectfully dissent. First, the majority's decision is anachronous in light of this State's adoption eight years ago of a comparative negligence rule. Second, the majority's decision is unsound even when tested under the displaced law of contributory negligence.

A.

As is so explicit in Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971), Florida's "step in the dark" rule, namely, that one who enters a totally unfamiliar area in the darkness is not ordinarily justified in proceeding without first ascertaining whether there are obstacles to safe progress, is a rule of contributory negligence. Thus, in times past, a plaintiff whose behavior was within the parameters of this rule was barred from recovery, not because an obstacle in the dark was not a dangerous condition, but because the plaintiff's negligence contributed, in some appreciable way, to cause the injury.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the Florida Supreme Court abandoned the contributory negligence rule in favor of a rule of comparative negligence. Given that an obstacle in the dark is, and always has been, a dangerous condition, the question, since Hoffman v. Jones, is to what extent did the plaintiff's negligence cause the injury. That question is one for a jury to answer.

This case is not unlike Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla.1980). There Mrs. Ellis, visiting her son's new home for the first time, was given the traditional grand tour, which unfortunately included a six-to-eight-inch step-down in the garage. Mrs. Ellis failed to observe that the upper level of the garage floor had a two-inch red line painted along the edge. Otherwise, both levels of the floor were gray. The court held, inter alia, that whether the homeowner had a duty to warn Mrs. Ellis was a factual question to be decided by a jury. Significantly, the court in Ellis, reversing a summary judgment in favor of the defendants, rejected an entire line of cases which presumably would have sanctioned summary judgment because the exemption from liability in those cases was founded upon the now-extinct contributory negligence rule.

An obstacle in the dark is a hazard, whether obvious or not. Since obviousness relates to the plaintiff's negligence, not the defendant's, obviousness can no longer bar recovery as a matter of law. Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA), rev. denied, 389 So.2d 1113 (Fla.1980); Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980). Cf. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979) (under comparative negligence, the obvious danger of a product is a defense, not a bar to recovery). If taking the "step in the dark" is, alternatively, considered a risk assumed by the plaintiff, see Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980),...