White Palms of Palm Beach, Inc. v. Fox, s. 88-1848

• Decision Date: 02 August 1989
• Docket Number: 88-1944,Nos. 88-1848,s. 88-1848
• Citation: 14 Fla. L. Weekly 1833,547 So.2d 269
• Parties: 14 Fla. L. Weekly 1833 WHITE PALMS OF PALM BEACH, INC., Appellant, v. Herbert FOX and Barbara Fox, his wife and Harold Kaplan, Appellees.
• Court: Florida District Court of Appeals

Page 269

547 So.2d 269

14 Fla. L. Weekly 1833

WHITE PALMS OF PALM BEACH, INC., Appellant, v. Herbert FOX and Barbara Fox, his wife and Harold Kaplan, Appellees.

Nos. 88-1848, 88-1944.

District Court of Appeal of Florida,

Fourth District.

Aug. 2, 1989.

Rehearing Denied Aug. 29, 1989.

Michele I. Nelson of Paxton, Crow, Bragg & Smith, P.A., West Palm Beach, for appellant.

John J. Bulfin of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appellee-Harold Kaplan.

Dominic Brandy, Jules E. Mazzarantani of Bauman, Wurtenberger & Schottenfeld, P.A., Plantation, for appellees-Herbert Fox and Barbara Fox.

WALDEN, Judge.

This is a suit for personal injuries based upon an event that occurred upon the business premises of the White Palms florist shop. Involved are the landlord, Mr. Kaplan; the tenant, White Palms of Palm Beach, Inc.; and the injured business invitee, Mr. Fox.

Mr. Fox entered the White Palms florist shop to collect payment for window washing services he had performed. The ceiling height in the front of the shop was apparently sufficiently high as to cause no problem. However the ceiling in the rear of the shop, the work area, had been lowered to a height somewhere between 5'10"' and 5'11"'. Mr. Fox, who is 6'5"', was invited into the work area whereupon he struck his head on the low ceiling and suffered damages.

Mr. and Mrs. Fox sued Mr. Kaplan, the owner of the building, and White Palms, the lessee, and alleged negligent maintenance by allowing the existence of drop ceiling in the work area and failure to warn. Mr. Kaplan filed a cross-claim against White Palms for contractual indemnity based upon the provisions of the lease agreement. Thereafter the trial court entered final summary judgment in favor of Mr. Kaplan and against Mr. and Mrs. Fox as concerning their claim for damages. The trial court also granted summary final judgment in favor of Mr. Kaplan and against White Palms upon Mr. Kaplan's cross-claim. White Palms and Mr. and Mrs. Fox appeal from the summary judgments. We reverse both judgments and remand.

As concerns the Foxes' claims against the landlord, Mr. Kaplan, we reverse because there were genuine issues of material fact which stood in the way of Mr. Kaplan's entitlement to summary judgment, as a matter of law. It is clear that the low ceiling height existed at the time Mr. Kaplan gave over possession of the premises to the tenant and for many years prior thereto. There were at least issues as to whether the...