Premises liability — Fourth DCA upholds summary judgment regarding plaintiff’s status as uninvited licensee

Torts — Premises liability — Hospitals — Slip and fall on
wet floor — Uninvited licensee or trespasser — No error in granting
defendant’s motion for summary judgment regarding plaintiff’s status as
uninvited licensee or trespasser where incident occurred in kitchen of hospital
that was posted for use by staff only, an area which was beyond scope of
plaintiff’s invitation — Duty to warn — Error to grant summary judgment in
favor of defendant on duty to warn where there was genuine issue of material
fact whether defendant knew of wet floor and plaintiff’s presence in kitchen
before her fall, but still failed to warn her

FAYGIE DENNISER, Appellant, v. COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD
d/b/a WESTSIDE MEDICAL CENTER, Appellee. 4th District. Case No. 4D13-1427. May
14, 2014. Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 11020382 CA04. Counsel:
Andrew S. Lieberman of Andrew S. Lieberman, P.A., Plantation, for appellant.
Scott L. Mendlestein of Falk, Waas, Hernandez, Cortina, Solomon & Bonner,
P.A., Coral Gables, for appellee.

(Per Curiam.) The appellant/plaintiff, Faygie Denniser, appeals the final
summary judgment entered in favor of Columbia Hospital Corporation of South
Broward (Columbia) after a slip and fall on a wet floor. The appellant raises
two issues on appeal. First, she alleges that the trial court erred in finding
her status as an uninvited licensee or trespasser was uncontested. Second, she
argues that there was a genuine issue of material fact as to whether Columbia
knew of the wet floor and her presence in the kitchen before her fall, but still
failed to warn her. We affirm on the first point and reverse on the second.

The appellant was a frequent visitor to the hospital during her mother’s
week-long stay. On one visit, she went into a kitchen through a closed, unlocked
door to get some tea. Inside the kitchen area, she allegedly slipped and fell on
the wet floor causing injury. After falling, the appellant claims that a person
dressed in hospital scrubs, presumably a hospital employee, said to her “Be
careful. It’s wet.” Thereafter, she sued Columbia, asserting that as an invitee,
the hospital breached its duty of care by failing to warn her of the concealed
and dangerous condition of the floor. Columbia’s risk manager testified in an
affidavit that the subject kitchen area is for use only by the employees and
staff of the hospital and “is not to be used by patients and/or visitors of the
Hospital.” A sign posted on the wall next to the entry door read “PANTRY” and
“STAFF ONLY.” There was no evidence that the appellant was ever given permission
to enter the kitchen.

Columbia moved for summary judgment arguing that the appellant lost her
status as an invitee and became an uninvited licensee or trespasser by going
into an area of the hospital that was beyond the scope of her invitation. As
such, Columbia asserted that it was only required to warn the appellant of
concealed dangers if her trespass was discovered. The hospital denied that any
employee was aware of the appellant’s presence in the kitchen before she fell.
After a hearing, the trial court granted Columbia’s motion for summary judgment.

We affirm the trial court’s order on the appellant’s status as uninvited
licensee or trespasser. No genuine issue of material fact was presented to
dispute that the appellant lost her status as an invitee by going into a part of
the premises that was beyond the scope of her invitation. See Byers v.
Radiant Grp., L.L.C., 966 So. 2d 506, 509 (Fla. 2d DCA 2007).

A duty to warn an uninvited licensee or trespasser of any known, concealed
dangers arises only when the owner discovers their presence. See Wood v.
Camp, 284 So. 2d 691, 693 (Fla. 1973). In its motion for summary judgment,
Columbia cited the appellant’s deposition testimony that she did not see anybody
in the kitchen before she fell. However, as Columbia concedes on appeal, this
page of the deposition was not attached to the summary judgment motion or
pretrial filings, nor was it included within the record on appeal.1 This was the only evidence Columbia relied on to
support its contention that the appellant was an undiscovered trespasser.

A trial court’s order for summary judgment must be reversed when there is no
sworn evidence, in the record, to support that motion. See Servedio v.
U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (reversing
summary judgment where the record on appeal did not contain any admissible
evidence to support summary judgment); see also TRG-Brickell Point NE,
Ltd v. Wajsblat, 34 So. 3d 53, 55 (Fla. 3d DCA 2010) (holding that the trial
court could not enter partial summary judgment absent any summary judgment
evidence in the record); Schrank v. Pearlman, 683 So. 2d 559, 563 (Fla.
3d DCA 1996) (holding competent evidence must support a motion for summary
judgment). Without record evidence that the appellant’s presence in the kitchen
was not known before she fell, the facts were not sufficient to enable the trial
court to reasonably determine that no genuine issue of material fact existed.
Therefore, summary judgment on this ground was improper. See Singer v.
Star, 510 So. 2d 637, 641 (Fla. 4th DCA 1987).

For these reasons, we reverse the final summary judgment and remand this case
to the trial court for further proceedings.

Affirmed in part, Reversed in part and Remanded. (Damoorgian, C.J., Gross and
Klingensmith, JJ., concur.)

__________________

1The record on appeal also did not include
the transcript of the summary judgment hearing.