Spaulding v. City of Melbourne
| Citation | 473 So.2d 226,10 Fla. L. Weekly 1597 |
| Decision Date | 27 June 1985 |
| Docket Number | No. 83-1809,83-1809 |
| Parties | 10 Fla. L. Weekly 1597 Conrad A. SPAULDING, and Betty Spaulding, his wife, Appellants, v. CITY OF MELBOURNE, etc., et al., Appellees. |
| Court | Court of Appeal of Florida (US) |
Catherine A. Riley, of Blumenthal, Schwartz & Riley, P.A., Titusville, for appellants.
William L. Mims, Jr., of Sanders, McEwan, Mims & McDonald, Orlando, for appellee, City of Melbourne.
Mitchell J. Frank, of Rogers, Dowling and Bos, Orlando, for appellees, Southern Bell Telephone and G.H. Skipper, Inc.
The plaintiffs appeal from an adverse summary final judgment in this personal injury suit. We find that triable issues of fact exist and that defendants were not entitled to a judgment as a matter of law, so we reverse.
Plaintiffs sued the City of Melbourne (City), Southern Bell Telephone and Telegraph Company (Southern Bell) and G.H. Skipper, Inc. (Skipper) alleging that Southern Bell had caused a public sidewalk to be broken up by Skipper, its contractor, for the purpose of laying a cable, and that Southern Bell and Skipper created a dangerous condition by leaving the sidewalk broken up and in a state of disrepair without warnings or barricades. Plaintiffs further alleged that the City negligently permitted the public sidewalk to remain in a state of disrepair for so long a period of time that it knew or in the exercise of reasonable care should have known of its dangerous condition, that Spaulding was walking on the sidewalk because she had no other way to cross the area in question, and that she caught her heel on a broken rock and fell, causing injuries to herself. Her husband joined in the suit seeking derivative damages.
There was evidence in the record to reflect that Southern Bell had hired Skipper to break up the sidewalk so that Southern Bell could lay a cable, that the area was not barricaded nor was foot traffic otherwise diverted nor were there any warning devices placed there. There was also testimony that the sidewalk had been in this condition for three weeks, that leaving a sidewalk broken up for three weeks was too long a time and that to leave it broken and unbarricaded was dangerous. The trial court entered summary judgment in favor of all the defendants on the ground that there was no duty to warn plaintiff of the dangerous condition when her knowledge was equal to or superior to that of the defendants, and that plaintiff expressly assumed the risk of walking across the broken sidewalk.
Southern Bell and its agent created the condition in the sidewalk, and to that extent became the occupier of that strip of property. A property owner or occupier owes two duties to an invitee: (1) to keep its property reasonably safe and protect an invitee from dangers of which the owner or occupier is aware; and (2) to give the invitee warning of concealed perils which are or should be known to the owner or occupier, and which are unknown to the invitee and...
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