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January 8, 2016 by admin

Torts — Premises liability — Trip and fall — Error to enter summary judgment for defendant in action alleging that plaintiff tripped over a raised wooden plank while walking on a large wharf-like deck owned by defendant on the basis that the cause of the fall was a common design element

40
Fla. L. Weekly D49a

Torts
— Premises liability — Trip and fall — Error to enter summary judgment for
defendant in action alleging that plaintiff tripped over a raised wooden plank
while walking on a large wharf-like deck owned by defendant on the basis that
the cause of the fall was a common design element where there was factual issue
as to whether the cause of plaintiff’s fall was a common design element or the
result of poor maintenance

DIANE DOERING, Appellant, v. THE VILLAGES OPERATING COMPANY,
Appellee. 5th District. Case No. 5D13-3021. Opinion filed December 19, 2014.
Appeal from the Circuit Court for Sumter County, William H. Hallman, III,
Judge. Counsel: Bryan S. Gowdy, and Jennifer Shoaf Richardson, of Creed &
Gowdy, P.A., Jacksonville, and Timothy S. Babiarz, of Babiarz Law Firm, P.A.,
The Villages, for Appellant. Joseph T. Patsko, of Austin Roe & Patsko,
P.A., Tampa, for Appellee.
(LEBLANC, B., Associate Judge.) Appellant, Diane Doering,
timely appeals the trial court’s summary final judgment in favor of Appellee,
The Villages Operating Company (“The Villages”). Because we find there are
disputed questions of material fact to be determined by a fact finder, we
reverse.
While walking on a large wharf-like wooden deck owned by The
Villages during a well-attended Mardi Gras festival, Appellant tripped over a
raised wooden plank and suffered a broken left femur. She claimed The Villages
breached its duty to warn her of the dangerous condition and its duty to
maintain the deck at all times in a reasonably safe condition. The Villages
claimed that the cause of the fall was a common design element, not the result
of poor maintenance. In addition, The Villages claimed by an affirmative
defense that the condition was an open and obvious condition and therefore no
duty was breached. The trial court agreed with The Villages and granted summary
judgment.
A trial court’s decision to grant final summary judgment is
reviewed de novo. If this court finds the lack of any genuine material issue of
fact, summary judgment should be affirmed. If it appears in the record that
there are disputed issues of material fact, summary judgment must be reversed. Lawrence
v. Pep Boys Manny Moe & Jack, Inc.
, 842 So. 2d 303 (Fla. 5th DCA 2003).
The Villages asserts that the deck Appellant was walking on
was “not designed to be a flat surface” and included “boards that were rough
and uneven to accomplish the wharf theme aesthetic.” We do not find evidence to
support this assertion, but even if such evidence exists, conflicting evidence
was presented that the end of the board in question was in very bad condition
— completely rotted and warped upward between one-half inch and one and
one-half inches above the deck’s surface. The Villages’ representative was
aware that wooden deck boards could rot and warp over time, creating a tripping
hazard. Additional evidence was presented that the board constituted a building
code violation because any elevation changes over a quarter inch were required
to be beveled. Thus, a genuine issue of fact existed as to whether the cause of
Appellant’s fall was a common design element or the result of poor maintenance.
See, e.g., Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577
(Fla. 5th DCA 2005) (noting 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”).1

REVERSED AND REMANDED. (PALMER and WALLIS, JJ., concur.)
__________________
1Although unnecessary to our
resolution of this case, we also believe a genuine issue of material fact
existed as to whether the raised plank was open and obvious. Although Appellant
testified that the raised plank was open and obvious when confronted with a
close-up photo of it, she also testified that at the time she fell, thousands
of people were at the festival. There were people “all around” and she was
“scanning the area” for a place to sit down as she walked. Doering’s expert
witness also testified that “the change in elevation would have been in
[Appellant’s] lower peripheral vision which cannot adequately visualize
blending color surfaces, e.g., brown and brown, if one is normally ‘looking
straight ahead.’ ”

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