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Fla. L. Weekly D526aTop of Form
Fla. L. Weekly D526aTop of Form
Torts
— Premises liability — Action by plaintiff, who was injured when she stepped
into a pothole in bank’s parking lot which was under construction, against
bank, general contractor, and company that actually performed construction on
the parking lot — Error to enter summary judgment for defendants on basis of
obvious danger doctrine where there was a factual issue as to whether owner or possessor
breached duty to maintain premises in a reasonably safe condition — Court
declines to affirm summary judgment as to general contractor and company that
performed construction on basis that they did not owe a duty to plaintiff on a
premises liability theory where that ground was not raised in motion for
summary judgment
— Premises liability — Action by plaintiff, who was injured when she stepped
into a pothole in bank’s parking lot which was under construction, against
bank, general contractor, and company that actually performed construction on
the parking lot — Error to enter summary judgment for defendants on basis of
obvious danger doctrine where there was a factual issue as to whether owner or possessor
breached duty to maintain premises in a reasonably safe condition — Court
declines to affirm summary judgment as to general contractor and company that
performed construction on basis that they did not owe a duty to plaintiff on a
premises liability theory where that ground was not raised in motion for
summary judgment
JANET
TRAINOR, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, KIRBY BROS.
CONSTRUCTION, INC. AND LEE WILLIAMS & ASSOCIATES, INC., Appellees. 5th
District. Case No. 5D15-4536. Opinion filed March 3, 2017. Appeal from the
Circuit Court for Volusia County, William A. Parsons, Judge. Counsel: David M.
Russell, of Pappas & Russell, P.A., Daytona Beach, for Appellant.
T’anjuiming A. Marx and Robert J. Rubin, of Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A., Maitland, for Kirby Bros. Construction, Inc.,
Appellee. Daniel S. Liebowitz and Kelley Kronenberg, of the Law Firm of Kelly
Kronenberg, Orlando, for PNC Bank, National Association, Appellee. Derek J.
Angell and Ryan P. Scordato, of O’Connor & O’Connor, LLC, Winter Park, for
Lee Williams & Associates, Inc., Appellee.
TRAINOR, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, KIRBY BROS.
CONSTRUCTION, INC. AND LEE WILLIAMS & ASSOCIATES, INC., Appellees. 5th
District. Case No. 5D15-4536. Opinion filed March 3, 2017. Appeal from the
Circuit Court for Volusia County, William A. Parsons, Judge. Counsel: David M.
Russell, of Pappas & Russell, P.A., Daytona Beach, for Appellant.
T’anjuiming A. Marx and Robert J. Rubin, of Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A., Maitland, for Kirby Bros. Construction, Inc.,
Appellee. Daniel S. Liebowitz and Kelley Kronenberg, of the Law Firm of Kelly
Kronenberg, Orlando, for PNC Bank, National Association, Appellee. Derek J.
Angell and Ryan P. Scordato, of O’Connor & O’Connor, LLC, Winter Park, for
Lee Williams & Associates, Inc., Appellee.
(JACOBUS,
B.W., Senior Judge.) Janet Trainor appeals final summary judgments granted to
PNC Bank, National Association (PNC), Kirby Brothers Construction, Inc. (Kirby)
and Lee Williams & Associates, Inc. (Williams), collectively Appellees, in
her action for damages for the alleged injuries she suffered when she stepped
into a pothole in a parking lot serving customers of PNC Bank. We reverse after
concluding that the obvious danger doctrine does not discharge an owner’s or
possessor’s duty to maintain its premises in a reasonably safe condition, and
that material issues of fact remain precluding summary judgment.
B.W., Senior Judge.) Janet Trainor appeals final summary judgments granted to
PNC Bank, National Association (PNC), Kirby Brothers Construction, Inc. (Kirby)
and Lee Williams & Associates, Inc. (Williams), collectively Appellees, in
her action for damages for the alleged injuries she suffered when she stepped
into a pothole in a parking lot serving customers of PNC Bank. We reverse after
concluding that the obvious danger doctrine does not discharge an owner’s or
possessor’s duty to maintain its premises in a reasonably safe condition, and
that material issues of fact remain precluding summary judgment.
Ms.
Trainor drove to a nearby PNC branch location intending to make a deposit with
the drive-through teller on June 20, 2012. She arrived to a closed bank and
opted to make her deposit through the bank’s outdoor ATM. After parking her
car, Ms. Trainor discovered that the area was under construction, as there was
a barricade in front of the ATM and, according to her, a sign with an arrow and
red lettering, directing customers to walk around. Ms. Trainor complied and
began to walk around the barricade. While walking through the parking lot, she
stepped in what she described as a pothole. The unexpected drop in pavement
levels caused her foot to get caught and twist, resulting in a fall that
fractured her left foot and leg and injured her neck and back. Although she did
not see the pothole before she stepped in it, Ms. Trainor acknowledges that
there was nothing prohibiting her from looking down and seeing the pothole.
Trainor drove to a nearby PNC branch location intending to make a deposit with
the drive-through teller on June 20, 2012. She arrived to a closed bank and
opted to make her deposit through the bank’s outdoor ATM. After parking her
car, Ms. Trainor discovered that the area was under construction, as there was
a barricade in front of the ATM and, according to her, a sign with an arrow and
red lettering, directing customers to walk around. Ms. Trainor complied and
began to walk around the barricade. While walking through the parking lot, she
stepped in what she described as a pothole. The unexpected drop in pavement
levels caused her foot to get caught and twist, resulting in a fall that
fractured her left foot and leg and injured her neck and back. Although she did
not see the pothole before she stepped in it, Ms. Trainor acknowledges that
there was nothing prohibiting her from looking down and seeing the pothole.
Ms.
Trainor filed a complaint against PNC and Kirby, PNC’s general contractor,
presenting two theories of liability — breach of the duty to warn and breach
of the duty to maintain. Kirby filed a third-party complaint against Williams,
the company that actually performed the construction, alleging counts for
common law indemnity and/or contribution, negligence, and equitable
subrogation. PNC moved for summary judgment, joined by Kirby and Williams,
claiming that they were entitled to a judgment as a matter of law pursuant to
the obvious danger doctrine. Ms. Trainor responded that the condition was not
open and obvious and that the doctrine did not absolve PNC of its duty to
maintain. After hearing argument, the trial court concluded that Appellees were
entitled to summary judgment as to all counts based on the obvious danger
doctrine.
Trainor filed a complaint against PNC and Kirby, PNC’s general contractor,
presenting two theories of liability — breach of the duty to warn and breach
of the duty to maintain. Kirby filed a third-party complaint against Williams,
the company that actually performed the construction, alleging counts for
common law indemnity and/or contribution, negligence, and equitable
subrogation. PNC moved for summary judgment, joined by Kirby and Williams,
claiming that they were entitled to a judgment as a matter of law pursuant to
the obvious danger doctrine. Ms. Trainor responded that the condition was not
open and obvious and that the doctrine did not absolve PNC of its duty to
maintain. After hearing argument, the trial court concluded that Appellees were
entitled to summary judgment as to all counts based on the obvious danger
doctrine.
This
court reviews de novo the grant of summary judgment. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In order
to determine the propriety of a summary judgment, this court must resolve
whether there is any “genuine issue as to any material fact” and whether “the
moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P.
1.510(c). Generally, “[t]he party moving for summary judgment has the burden to
prove conclusively the nonexistence of any genuine issue of material fact.” Krol
v. City of Orlando, 778 So. 2d 490, 491-92 (Fla. 5th DCA 2001) (citing City
of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000)). We must
consider the evidence contained in the record, including any supporting
affidavits, in the light most favorable to the non-moving party, and if the
slightest doubt exists, the summary judgment must be reversed. Id. at
492.
court reviews de novo the grant of summary judgment. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In order
to determine the propriety of a summary judgment, this court must resolve
whether there is any “genuine issue as to any material fact” and whether “the
moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P.
1.510(c). Generally, “[t]he party moving for summary judgment has the burden to
prove conclusively the nonexistence of any genuine issue of material fact.” Krol
v. City of Orlando, 778 So. 2d 490, 491-92 (Fla. 5th DCA 2001) (citing City
of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000)). We must
consider the evidence contained in the record, including any supporting
affidavits, in the light most favorable to the non-moving party, and if the
slightest doubt exists, the summary judgment must be reversed. Id. at
492.
The
first inquiry in a negligence action is whether the defendant owed a duty to
the plaintiff. Id. Under the facts of this case, Ms. Trainor occupies
the status of an invitee. “This court has consistently held that the duty owed
to invitees is 1) to use ordinary care in keeping the premises in a reasonably
safe condition, and 2) to give timely warning of latent or concealed perils
which are known or should be known by the owner or occupier.” Id. at
492-93 (citations omitted). The duty to protect others from injury resulting
from a dangerous condition on the premises rests on the right to control access
to the property. Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078
(Fla. 5th DCA 1999); see generally 41 Fla. Jur 2d Premises Liability § 5
(2017). Thus, ownership of the property is not the determining factor. Rather,
it is the failure of a person who is in actual possession and control (be it the
owner, an agent, a lessee, a construction contractor, or other possessor with
authority or control) to use due care to warn or to exclude licensees and
invitees from areas known to the possessor to be dangerous because of
operations, activities, or conditions. Haynes v. Lloyd, 533 So. 2d 944,
946 (Fla. 5th DCA 1988). Accordingly, PNC, as owner of the parking lot in
question, Kirby, as PNC’s general contractor, and Williams, who performed the
construction, may all be jointly liable. Notwithstanding, Kirby and Williams
contend that they did not owe a legal duty to Ms. Trainor under a premises
liability theory. However, this ground was not raised below in any motion for
summary judgment. Accordingly, we decline to affirm summary judgment on such
ground. Loranger v. State, Dep’t of Transp., 448 So. 2d 1036, 1038-39
(Fla. 4th DCA 1984) (declining, on rehearing, to affirm summary judgment on
ground not raised below, ground being an absence of legal duty); see Agudo,
Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311, 1315,
n.3 (Fla. 3d DCA 1985) (“[A]s Loranger v. State, Department of
Transportation, 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983), makes clear, the
‘right for the wrong reason’ appellate maxim does not apply in summary judgment
proceedings where the issue was never raised in the motion for summary
judgment.”).
first inquiry in a negligence action is whether the defendant owed a duty to
the plaintiff. Id. Under the facts of this case, Ms. Trainor occupies
the status of an invitee. “This court has consistently held that the duty owed
to invitees is 1) to use ordinary care in keeping the premises in a reasonably
safe condition, and 2) to give timely warning of latent or concealed perils
which are known or should be known by the owner or occupier.” Id. at
492-93 (citations omitted). The duty to protect others from injury resulting
from a dangerous condition on the premises rests on the right to control access
to the property. Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078
(Fla. 5th DCA 1999); see generally 41 Fla. Jur 2d Premises Liability § 5
(2017). Thus, ownership of the property is not the determining factor. Rather,
it is the failure of a person who is in actual possession and control (be it the
owner, an agent, a lessee, a construction contractor, or other possessor with
authority or control) to use due care to warn or to exclude licensees and
invitees from areas known to the possessor to be dangerous because of
operations, activities, or conditions. Haynes v. Lloyd, 533 So. 2d 944,
946 (Fla. 5th DCA 1988). Accordingly, PNC, as owner of the parking lot in
question, Kirby, as PNC’s general contractor, and Williams, who performed the
construction, may all be jointly liable. Notwithstanding, Kirby and Williams
contend that they did not owe a legal duty to Ms. Trainor under a premises
liability theory. However, this ground was not raised below in any motion for
summary judgment. Accordingly, we decline to affirm summary judgment on such
ground. Loranger v. State, Dep’t of Transp., 448 So. 2d 1036, 1038-39
(Fla. 4th DCA 1984) (declining, on rehearing, to affirm summary judgment on
ground not raised below, ground being an absence of legal duty); see Agudo,
Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311, 1315,
n.3 (Fla. 3d DCA 1985) (“[A]s Loranger v. State, Department of
Transportation, 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983), makes clear, the
‘right for the wrong reason’ appellate maxim does not apply in summary judgment
proceedings where the issue was never raised in the motion for summary
judgment.”).
The
only issue raised in PNC’s motion for summary judgment, to which Kirby and
Williams filed joinders, was whether Appellees were entitled to judgment as a
matter of law pursuant to the obvious danger doctrine. “The obvious danger
doctrine recognizes that owners and occupiers should be legally permitted to
assume that the invitee will perceive that which would be obvious to them upon
the ordinary use of their own senses.” Krol, 778 So. 2d at 493
(footnotes, citations omitted). However, while the open and obvious nature of a
hazard may discharge a landowner’s or possessor’s duty to warn, it does not
discharge the landowner’s or possessor’s duty to maintain the property in a
reasonably safe condition. Dampier v. Morgan Tire & Auto, LLC, 82
So. 3d 204, 206 (Fla. 5th DCA 2012) (citation omitted); see also Burton v.
MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012) (“Florida
courts have long held that a landowner’s duty to warn is separate and distinct
from the duty to maintain the premises in a reasonably safe condition. ‘Case
law consistently recognizes that the fact that a danger is open and obvious may
operate to discharge a landowner’s duty to warn, but it does not discharge the duty
to maintain the property in a reasonably safe condition.’ ” (quoting Lomack
v. Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009)); Aaron v. Palatka
Mall, LLC, 908 So. 2d 574, 577 (Fla. 5th DCA 2005) (“We have noted that in
addition to alleging negligence based on breach of the duty to warn of the
alleged dangerous condition, Aaron also alleges that Palatka Mall breached its
duty to keep the premises in a reasonably safe condition. The fact that Aaron
alleges breach of both duties is significant because the courts generally agree
that the obvious danger doctrine does not apply when negligence is predicated
on breach of the duty to maintain the premises in a reasonably safe
condition.”); Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624,
632 (Fla. 5th DCA 2003) (“The fallacy is in the premise that the discharge of
the occupier’s duty to warn by the plaintiff’s actual knowledge necessarily
discharges the duty to maintain the premises in a reasonably safe condition by
correcting dangers of which the occupier has actual or constructive knowledge.
To extend the obvious danger doctrine to bar a plaintiff from recovery by
negating a landowner’s or occupier’s duty to invitees to maintain his premises
in a reasonably safe condition would be inconsistent with the philosophy of Hoffman
v. Jones, 280 So. 2d 431 (Fla. 1973), that liability should be apportioned
according to fault.” (citation omitted)); see generally Benjamin
Jilek, The “Open and Obvious” Defense and Summary Judgment in Premises
Liability Claims, 25 Trial Advoc. Q. 36, 37 (2006) (“The [other] duty owed
by a landowner or occupier to an invitee is to use reasonable care to maintain
the premises in a reasonably safe condition. In contrast to popular belief
among many trial attorneys and judges, the duty to maintain is not related to,
or discharged along with, the duty to warn. Instead, it is a distinct duty that
does not depend on whether or not the condition was open and obvious: A
plaintiff’s knowledge of a dangerous condition does not negate a defendant’s
potential liability for negligently permitting the dangerous condition to
exist; it simply raises the issue of comparative negligence and precludes
summary judgment.” (footnotes, citations and internal quotations omitted)).
only issue raised in PNC’s motion for summary judgment, to which Kirby and
Williams filed joinders, was whether Appellees were entitled to judgment as a
matter of law pursuant to the obvious danger doctrine. “The obvious danger
doctrine recognizes that owners and occupiers should be legally permitted to
assume that the invitee will perceive that which would be obvious to them upon
the ordinary use of their own senses.” Krol, 778 So. 2d at 493
(footnotes, citations omitted). However, while the open and obvious nature of a
hazard may discharge a landowner’s or possessor’s duty to warn, it does not
discharge the landowner’s or possessor’s duty to maintain the property in a
reasonably safe condition. Dampier v. Morgan Tire & Auto, LLC, 82
So. 3d 204, 206 (Fla. 5th DCA 2012) (citation omitted); see also Burton v.
MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012) (“Florida
courts have long held that a landowner’s duty to warn is separate and distinct
from the duty to maintain the premises in a reasonably safe condition. ‘Case
law consistently recognizes that the fact that a danger is open and obvious may
operate to discharge a landowner’s duty to warn, but it does not discharge the duty
to maintain the property in a reasonably safe condition.’ ” (quoting Lomack
v. Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009)); Aaron v. Palatka
Mall, LLC, 908 So. 2d 574, 577 (Fla. 5th DCA 2005) (“We have noted that in
addition to alleging negligence based on breach of the duty to warn of the
alleged dangerous condition, Aaron also alleges that Palatka Mall breached its
duty to keep the premises in a reasonably safe condition. The fact that Aaron
alleges breach of both duties is significant because the courts generally agree
that the obvious danger doctrine does not apply when negligence is predicated
on breach of the duty to maintain the premises in a reasonably safe
condition.”); Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624,
632 (Fla. 5th DCA 2003) (“The fallacy is in the premise that the discharge of
the occupier’s duty to warn by the plaintiff’s actual knowledge necessarily
discharges the duty to maintain the premises in a reasonably safe condition by
correcting dangers of which the occupier has actual or constructive knowledge.
To extend the obvious danger doctrine to bar a plaintiff from recovery by
negating a landowner’s or occupier’s duty to invitees to maintain his premises
in a reasonably safe condition would be inconsistent with the philosophy of Hoffman
v. Jones, 280 So. 2d 431 (Fla. 1973), that liability should be apportioned
according to fault.” (citation omitted)); see generally Benjamin
Jilek, The “Open and Obvious” Defense and Summary Judgment in Premises
Liability Claims, 25 Trial Advoc. Q. 36, 37 (2006) (“The [other] duty owed
by a landowner or occupier to an invitee is to use reasonable care to maintain
the premises in a reasonably safe condition. In contrast to popular belief
among many trial attorneys and judges, the duty to maintain is not related to,
or discharged along with, the duty to warn. Instead, it is a distinct duty that
does not depend on whether or not the condition was open and obvious: A
plaintiff’s knowledge of a dangerous condition does not negate a defendant’s
potential liability for negligently permitting the dangerous condition to
exist; it simply raises the issue of comparative negligence and precludes
summary judgment.” (footnotes, citations and internal quotations omitted)).
Further,
“[w]hen an injured party alleges that the owner or possessor breached the duty
to keep the premises in a reasonably safe condition, an issue of fact is
generally raised as to whether the condition was dangerous and whether the
owner or possessor should have anticipated that the dangerous condition would
cause injury despite the fact it was open and obvious.” Aaron, 908 So.
2d at 578 (citing Lotto v. Point E. Two Condo. Corp., 702 So. 2d 1361,
1362 (Fla. 3d DCA 1997)). The length of time the pothole may have existed,
whether the pothole had existed for a sufficient length of time to put
Appellees on actual or constructive notice of its existence, such as might
constitute negligence for the Appellees’ alleged failure to make timely repairs
are material issues of fact that remain. Turner v. Winn-Dixie Food Stores,
Inc., 651 So. 2d 827, 828 (Fla. 5th DCA 1995) (citing Barrett v. State
Dep’t of Transp., 546 So. 2d 1175 (Fla. 4th DCA 1989); Martin v. Consol.
City of Jacksonville, 483 So. 2d 804 (Fla. 1st DCA 1986)). Accordingly, the
trial court erred in entering summary judgment in regards to the theory alleged
by Ms. Trainor that Appellees breached their duty to maintain the premises in a
reasonably safe condition. Cf. Aaron, 908 So. 2d at 578 (“[W]e do not
think that the obviousness of the condition relieved the condominium
association of the duty to repair it . . . . We think there remains a factual
issue whether the association should anticipate that condominium residents
would use the sidewalk and proceed to encounter the cracked and uneven
concrete, notwithstanding that the condition was obvious, and would be harmed
thereby.” (quoting Lotto, 702 So. 2d at 1362)); accord De Cruz-Haymer
v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013) (“When
an injured party alleges that the owner or possessor breached the duty to keep
the premises in a reasonably safe condition, an issue of fact is generally
raised as to whether the condition was dangerous and whether the owner or
possessor should have anticipated that the dangerous condition would cause
injury despite the fact it was open and obvious.” (quoting Aaron, 908
So. 2d at 578)). “Moreover, when the failure to maintain premises is alleged,
the obvious nature of the danger creates an issue of fact regarding the
plaintiff’s own comparative negligence.” De Cruz-Haymer, 117 So. 3d at
888 (citing Burton, 78 So. 3d at 735; Fieldhouse v. Tam Inv. Co., 959
So. 2d 1214, 1216 (“A plaintiff’s knowledge of a dangerous condition . . .
simply raises the issue of comparative negligence and precludes summary
judgment.”)).
“[w]hen an injured party alleges that the owner or possessor breached the duty
to keep the premises in a reasonably safe condition, an issue of fact is
generally raised as to whether the condition was dangerous and whether the
owner or possessor should have anticipated that the dangerous condition would
cause injury despite the fact it was open and obvious.” Aaron, 908 So.
2d at 578 (citing Lotto v. Point E. Two Condo. Corp., 702 So. 2d 1361,
1362 (Fla. 3d DCA 1997)). The length of time the pothole may have existed,
whether the pothole had existed for a sufficient length of time to put
Appellees on actual or constructive notice of its existence, such as might
constitute negligence for the Appellees’ alleged failure to make timely repairs
are material issues of fact that remain. Turner v. Winn-Dixie Food Stores,
Inc., 651 So. 2d 827, 828 (Fla. 5th DCA 1995) (citing Barrett v. State
Dep’t of Transp., 546 So. 2d 1175 (Fla. 4th DCA 1989); Martin v. Consol.
City of Jacksonville, 483 So. 2d 804 (Fla. 1st DCA 1986)). Accordingly, the
trial court erred in entering summary judgment in regards to the theory alleged
by Ms. Trainor that Appellees breached their duty to maintain the premises in a
reasonably safe condition. Cf. Aaron, 908 So. 2d at 578 (“[W]e do not
think that the obviousness of the condition relieved the condominium
association of the duty to repair it . . . . We think there remains a factual
issue whether the association should anticipate that condominium residents
would use the sidewalk and proceed to encounter the cracked and uneven
concrete, notwithstanding that the condition was obvious, and would be harmed
thereby.” (quoting Lotto, 702 So. 2d at 1362)); accord De Cruz-Haymer
v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013) (“When
an injured party alleges that the owner or possessor breached the duty to keep
the premises in a reasonably safe condition, an issue of fact is generally
raised as to whether the condition was dangerous and whether the owner or
possessor should have anticipated that the dangerous condition would cause
injury despite the fact it was open and obvious.” (quoting Aaron, 908
So. 2d at 578)). “Moreover, when the failure to maintain premises is alleged,
the obvious nature of the danger creates an issue of fact regarding the
plaintiff’s own comparative negligence.” De Cruz-Haymer, 117 So. 3d at
888 (citing Burton, 78 So. 3d at 735; Fieldhouse v. Tam Inv. Co., 959
So. 2d 1214, 1216 (“A plaintiff’s knowledge of a dangerous condition . . .
simply raises the issue of comparative negligence and precludes summary
judgment.”)).
For
the reasons stated herein, we reverse the final summary judgments entered in
favor of PNC, Kirby and Williams and remand this case for further proceedings.
the reasons stated herein, we reverse the final summary judgments entered in
favor of PNC, Kirby and Williams and remand this case for further proceedings.
REVERSED
AND REMANDED. (SAWAYA and EDWARDS, JJ., concur.)
AND REMANDED. (SAWAYA and EDWARDS, JJ., concur.)
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