Torts — Premises liability — Business invitees — Trip and
fall on above-ground tree roots in landscaping area — Defendant had no duty to
make landscaping areas safe for walking when it had already provided concrete
walkways for invitees to cross landscaping areas — Fact that two other persons
had tripped on tree roots during three years prior to plaintiff’s accident did
not create duty on part of defendant to make landscaping areas safe for
pedestrian traffic where plaintiff fell because he knowingly cut through a
landscaping area rather than using concrete walkways designed for that purpose
— No error in granting summary judgment in favor of defendant

SHERWIN WOLF, Appellant, v. SAM’S EAST, INC. d/b/a SUNRISE SAM’S CLUB,
Appellee. 4th District. Case No. 4D12-3064. January 15, 2014. Appeal from the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J.
Murphy, III, Judge; L.T. Case No. 11-8156 (21). Counsel: Arnold R. Ginsberg of
Arnold R. Ginsberg, P.A., Miami, and H. Joshua Diamond of H. Joshua Diamond,
P.A., Coral Gables, for appellant. Thomas A. Valdez of Quintairos, Prieto, Wood
& Boyer, P.A., Tampa, and David Tarlow and Michael Wood of Quintairos,
Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellee.

(Ciklin, J.) Sherwin Wolf appeals the order granting final summary judgment
in favor of Sam’s East, Inc. (“Sam’s Club”). Wolf argues the trial court erred
by entering summary judgment because there was a genuine issue of material fact
as to whether Sam’s Club breached its duty to make the premises reasonably safe
for invitees by failing to trim or remove above-ground tree roots from a
landscaping area. We disagree because Sam’s Club had no duty to make its
landscaping areas safe for walking when Sam’s Club had already provided concrete
walkways for invitees to cross the landscaping areas. Accordingly, we affirm the
summary judgment.

Wolf went to Sam’s Club for the purpose of making a purchase within the
store. He parked his car in the Sam’s Club parking lot. The parking lot had
landscaping areas with dirt, trees, grass, and mulch. The landscaping areas were
a few feet wide, were not curbed, and had concrete walkways that allowed persons
to cross from one side of the landscaping area to the other without the need to
step into the landscaping area itself. There were no signs directing persons to
use the concrete walkways.

Wolf exited his vehicle and attempted to traverse a landscaping area located
between his parking spot and the Sam’s Club entrance. In a deposition, Wolf
testified that he was aware there were concrete walkways located throughout the
landscaping areas, but nevertheless chose to enter and cross the landscaping
area because it was a shorter distance from his car to the store entrance. When
crossing the landscaping area, Wolf’s foot caught on a tree root and Wolf fell
on a concrete parking stop. Wolf stated he was aware there were trees in the
landscaping areas, but that he had “not consciously” noted the tree roots before
the accident. Wolf was injured by the fall, and he was taken by ambulance to a
hospital.

Wolf sued Sam’s Club, alleging the store breached its duty to maintain the
premises in a reasonably safe condition by allowing the tree roots to grow
above-ground in the landscaping areas. Wolf also alleged Sam’s Club failed to
warn him of the latent danger posed by the tree roots, which Wolf alleged were
obscured by grass and leaves.

During discovery, Sam’s Club disclosed that two other persons had tripped
over tree roots when crossing the landscaping areas in the three years before
Wolf’s accident. In a deposition, a Sam’s Club employee testified that Sam’s
Club was responsible for evaluating potential hazards to Sam’s Club members in
the Sam’s Club parking lot. The employee also stated that Sam’s Club contracted
with a landscaping service for routine landscaping duties, but that something as
extraordinary as tree root removal would not be part of regular landscape
maintenance and would require a specific request from Sam’s Club.

Sam’s Club moved for summary judgment, arguing that even taking the evidence
in the light most favorable to Wolf, he was solely liable for the accident
because he chose to walk across the landscaping area even though he knew there
were concrete walkways for that purpose. The court denied the motion. Sam’s Club
then moved for rehearing and reconsideration, citing the then recently issued
opinion Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204 (Fla. 5th
DCA 2012). Upon reconsideration, the court entered final summary judgment in
favor of Sam’s Club.

Wolf now appeals the entry of summary judgment.

“A trial court’s entry of a final summary judgment is reviewed de
novo. When reviewing a ruling on summary judgment, an appellate court must
examine the record in the light most favorable to the non-moving party.”
Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 733 (Fla. 4th DCA 2012)
(citations and quotation marks omitted).

“A landowner or occupier owes an invitee two independent duties: (1) to
maintain the premises in a reasonably safe condition, and (2) to give warning of
concealed perils.” Id. at 734 (citation omitted). As this court and other
Florida courts have stated:

Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 576-77 (Fla. 5th DCA
2005) (citation omitted); see also Spatz v. Embassy Home Care, Inc., 9
So. 3d 697, 698-99 (Fla. 4th DCA 2009).

Sam’s Club relies primarily on Dampier v. Morgan Tire & Auto, LLC,
to argue that it had no duty to make the landscaping areas in its parking lot
fit for pedestrian traffic. In Dampier, the plaintiff was an invitee of a
Tires Plus store who walked to a nearby McDonald’s restaurant. 82 So. 3d at 205.
To reach the restaurant, the plaintiff chose to walk across a raised, curbed
planting bed that was eight to ten feet wide. The plaintiff tripped on a tree
stump in the planting bed. The trial court granted summary judgment in favor of
the store because the stump was “so open and obvious as to not constitute a
dangerous condition as a matter of law.” Id. at 206.

On appeal, the Fifth District affirmed the summary judgment. Id. at
208. The court acknowledged that the open and obvious nature of a hazard does
not discharge the landowner’s duty to maintain the property in a reasonably safe
condition, but wrote “[n]onetheless, some conditions are so obvious and not
inherently dangerous that they can be said, as a matter of law, not to
constitute a dangerous condition, and will not give rise to liability due to the
failure to maintain the premises in a reasonably safe condition.” Id. at
206 (citation omitted). Relying on a line of Fifth District and Third District
cases, the court wrote that “[l]andscaping features are generally found not to
constitute a dangerous condition as a matter of law. . . . [A] landowner has no
liability for falls which occur when invitees walk on surfaces not designed for
walking, such as planting beds.” Id. (citing City of Melbourne v.
Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Prop.
Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001); K.G. v. Winter Springs Cmty.
Evangelical Congregational Church, 509 So. 2d 384 (Fla. 5th DCA 1987);
Prager v. Marks Bros. Co., 483 So. 2d 881 (Fla. 3d DCA 1986)). The court
concluded that “the planting bed, and the stump within the planting bed, did not
constitute a dangerous condition that could give rise to liability . . . due to
the alleged failure to maintain the premises in a reasonably safe condition.”
Id. at 208. The court also concluded the store had no duty to warn the
plaintiff “of the danger of walking in the planting bed, because the planting
bed and stump did not constitute a dangerous condition when used as a planting
bed and not for walking.” Id.

As to the instant case, we find that the tree roots in the landscaping
areas were “so obvious and not inherently dangerous” as to constitute a
non-dangerous condition as a matter of law. Id. at 206. Our conclusion is
reinforced by the fact that Wolf could have easily and safely crossed the
landscaping area using a concrete walkway located only a few feet away from
where he fell. Wolf testified in his deposition that he knew the walkway existed
but chose not to use it.

We are not persuaded by Wolf’s arguments that the above-ground tree roots
were not easily visible. As the Fifth District stated:

Taylor, 779 So. 2d at 622.

Like the court in Taylor, we conclude that anyone who walks into a
landscaping area containing trees, grass, and mulch is held to know that the
landscaping area presents “a hazard to walking,” particularly when concrete
traverses have been specifically constructed to prevent this type of accident.
See id. Under these facts, we find that Sam’s Club had no duty to make
the landscaping areas safe for a pedestrian’s encroachment. See Dampier,
82 So. 3d at 208.

We also reject Wolf’s arguments that reversal is required because two other
persons had tripped on the tree roots during the three years before Wolf’s
accident. Wolf relies on Williams v. Madden, 588 So. 2d 41 (Fla. 1st DCA
1991). In that case, the plaintiff fell on a step in a hotel restaurant.
Id. at 42. The plaintiff was informed by hotel staff that other persons
had fallen due to the same condition. The trial court granted summary judgment
in favor of the hotel, reasoning that the danger posed by the step was “open and
obvious” and that the plaintiff admitted she was aware of the step. Id.
at 43.

On appeal, the First District reversed the summary judgment. The court
acknowledged that “Florida courts have applied the general rule that it is not
negligence for the proprietor of a public place to maintain steps or uneven
floor levels and fail to give warning of such conditions to invitees.”
Id. (citation omitted). Nevertheless, the court concluded that summary
judgment was inappropriate because the hotel staff member admitted that prior
invitees had fallen due to the same condition. The court wrote: “Evidence of the
occurrence or non-occurrence of prior accidents can serve to prove whether the
proprietor of a business should have anticipated harm to his invitees despite
the obviousness of the condition.” Id. (citations omitted). The court
concluded that “[t]he issue of [the hotel owner’s] negligence, if any, must be
resolved by a jury.” Id. at 44.

The instant case is distinguishable from Williams because in that case
the falls occurred in an area that was apparently intended for walking. In
contrast, Wolf fell because he was knowingly cutting through a landscaping area
rather than using the concrete walkways designed for that purpose. Under the
facts of this case, we determine that the prior falls did not create a duty on
the part of Sam’s Club to make the landscaping areas safe for pedestrian
traffic.

Affirmed. (Gross and May, JJ., concur.)