42
Fla. L. Weekly D752aTop of Form

Torts
— Premises liability — Trip and fall over pallet on floor of supermarket —
Trial court properly entered summary judgment for defendant supermarket where
defendant tripped over pallet which he had previously seen and walked around —
Defendant owed no duty to warn plaintiff of open and obvious condition where
defendant’s knowledge of condition was not superior to plaintiff’s — Defendant
did not breach duty to exercise ordinary care to maintain premises in
reasonably safe condition where condition was open and obvious and not
inherently dangerous, and, even if pallet’s location was dangerous, it was so
open and obvious, and previously observed by plaintiff, that defendant could
reasonably expect plaintiff to protect himself from purported danger

THOMAS
BROOKIE, Appellant, v. WINN-DIXIE STORES, INC. and THE LEWIS BEAR COMPANY,
Appellees. 1st District. Case No. 1D16-1285. Opinion filed April 4, 2017. An
appeal from the Circuit Court for Bay County. James B. Fensom, Judge. Counsel:
Harold R. Mardenborough, Jr. and C. Brian Davidson of Perry & Young, P.A.,
Panama City, for Appellant. Robert C. Palmer, III of Wade, Palmer &
Shoemaker, P.A., Pensacola; Randall G. Rogers and Kathryn L. Ender of Cole
Scott & Kissane, Pensacola, for Appellee Winn-Dixie Stores, Inc. Charles
Wiggins of Beggs & Lane, RLLP, Pensacola, for Appellee The Lewis Bear
Company.

(B.L.
THOMAS, J.) In this premises-liability case we address the issue of whether
summary judgment may be granted when the injured party observed the condition
but failed to step around the easily avoidable obstacle. We hold that the trial
court properly granted summary judgment, because as a matter of law Appellees
owed no duty to warn Appellant, and properly discharged their duty to exercise
ordinary care to maintain the premises in a reasonably safe condition.

Appellant
went to Winn-Dixie to make a purchase and get empty boxes. During his visit,
Appellant made a total of four trips into and out of the store. On the first
trip, Appellant made his purchase and took it to his car; he then made three
more trips into Winn-Dixie to obtain empty boxes, returning them to his car.
During this time, a Lewis Bear employee was delivering a shipment of beer. The
beer was stacked approximately five feet high on a pallet between Winn-Dixie’s
entrance and exit doors, and an empty pallet was sitting on the pallet jack’s
prongs to the right of the exit. On Appellant’s third trip exiting the store,
he saw the empty pallet, but tripped and fell over it, suffering injuries as a
result. Appellant sued Appellees for negligently failing to warn of the
dangerous condition and negligently failing to make the sidewalk safe to walk
across.

During
discovery, Appellant produced an affidavit from his expert averring that
Appellees created an unsafe condition, and Appellees offered video surveillance
still-shots from footage of the events. In his deposition, Appellant testified
that he did not notice the empty pallet until his third trip, claiming that he
tripped over the prongs protruding from underneath the pallet, as opposed to
the pallet itself. After hearing arguments, the trial court granted summary
judgment in favor of Appellees, finding Appellees owed no duty to warn
Appellant of the pallet or the prongs, because Appellant was aware of the
condition. The court further found the condition to have been so open, obvious,
and ordinary that it was inherently not dangerous as a matter of law, absolving
Appellees of liability.

In
a premises-liability decision upholding summary judgment for the landowner, the
Florida Supreme Court recognized more than a half-century ago that a

business invitee is entitled
to expect that the proprietor will take reasonable care to discover the
actual condition of the premises and either make them safe or warn [the
invitee] of dangerous conditions, it is equally well settled that the
proprietor has a right to assume that the invitee will perceive that which
would be obvious to him upon the ordinary use of his own senses.

Earley
v. Morrison Cafeteria Co. of Orlando, 61 So. 2d 477, 478 (Fla.
1952) (emphasis added). This court has also held that “there is no duty to warn
against an open and obvious condition which is not inherently dangerous.” Ramsey
v. Home Depot U.S.A., Inc., 124 So. 3d 415, 417 (Fla. 1st DCA 2013). As
premises-liability law developed post-Earley, lower-court decisions have
recognized that a business owner owes two “separate and distinct” duties to
business invitees: “1) to warn of concealed dangers which are or should be
known to the owner and which are unknown to the invitee and cannot be
discovered through the exercise of due care; and 2) to use ordinary care to
maintain its premises in a reasonably safe condition.” Rocamonde v.
Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011).

As
noted in Rocamonde:

The granting of summary
judgment is subject to de novo review. Volusia Cnty. v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126 (Fla. 2000). The appellate court is required to
‘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.’ Tropical
Glass & Constr. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009),
quoting Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA
2001). In negligence suits particularly, ‘summary judgments should be
cautiously granted.’ Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
‘If the evidence raises any issue of material fact, if it is conflicting, if it
will permit different reasonable inferences, or if it tends to prove the issues,
it should be submitted to the jury as a question of fact to be determined by
it.’ Id. (citing Williams v. Lake City, 62 So. 2d 732 (Fla.
1953)). Summary judgment should not be granted ‘unless the facts are so
crystallized that nothing remains but questions of law.’ Id. (citing Shaffran
v. Holness, 93 So. 2d 94 (Fla. 1957)).

Id. at
864-865.

In Rocamonde,
the Third District held that summary judgment based on Earley was
improper where “ ‘it is the dangerous condition of an object which must be open
and obvious, not simply the object itself.’ ” Id. (quoting Kloster
Cruise Ltd. v. Grubbs, 762 So. 2d 552, 555 (Fla. 3d DCA 2000)). The Third
District also noted that, although a property owner may comply with the duty to
warn of an open and obvious condition, this “does not necessarily mean
the landowner has satisfied the duty to maintain the premises in a reasonably
safe condition[.]” (Emphasis added.) Id. at 864. Obviously, in some
cases, a property owner may in fact comply with both duties when an open and
obvious condition does not trigger a duty to warn and the condition itself does
not violate a property owner’s duty to maintain the premises in a reasonably
safe condition. We hold here that Appellees did not violate any legal duty to
Appellant, who observed the condition but was injured by failing to use due
care for his own safety, when a reasonable person could have easily avoided the
obstacle and thereby prevented injury.

Here,
Appellant admitted that he saw the empty pallet when he exited the store
and took four more steps before tripping over it. The surveillance video
footage conclusively refutes Appellant’s allegation that he tripped over the
prongs, as he tripped over the pallet itself, but we note that the trial court
found Appellant’s claim regarding the prongs to be immaterial, and we agree
with the trial court, which ruled “the [Appellant] changed course and walked so
as to avoid the [pallet] on three other occasions during the surveillance
video, twice prior to his fall and once again a few minutes afterward. The
Court concludes that no genuine issue of fact exists regarding whether
the condition causing [Appellant’s] fall was open and obvious.” (Emphasis
added.)

Therefore,
the facts are sufficiently crystallized here so that the issue on appeal is purely
a question of law: Did Appellees violate either a duty to warn of a dangerous
condition or a duty to maintain the premises in a reasonably safe condition,
when Appellant previously observed an open and obvious condition, not
inherently dangerous, and walked into the object causing his own injury.

First,
we hold that Appellees owed no duty to warn Appellant of the open and obvious
condition, because Appellees’ knowledge of the condition was not “superior” to
Appellant’s. Hunt v. Slippery Dip of Jacksonville, Inc., 453 So. 2d 139,
139 (Fla. 1st DCA 1984) (holding that “defendant’s knowledge of a danger must
be superior to that of a business invitee . . . to create a duty on the part of
the defendant to warn.”); see also McAllister v. Robbins, 542 So.
2d 470, 470 (Fla. 1st DCA 1989) (affirming summary judgment where there was “no
question of duty to warn, since plaintiff’s knowledge was equal with that of
the defendants”); Ball v. Ates, 369 So. 2d 1023 (Fla. 1st DCA 1979) (citing
Vt. Mut. Ins. Co. v. Conway, 358 So. 2d 123, 124 (Fla. 1st DCA 1978),
and affirming grant of directed verdict for defendant, stating “rule is that a
defendant’s knowledge of danger must be superior to that of a business invitee
in order to create a duty to warn of dangers unknown to the plaintiff.”).
Appellant knew the location of the pallet, having seen it twice earlier, before
the accident. Thus, Appellees had no greater knowledge of the condition than
Appellant, and therefore, had no duty to warn Appellant of its presence.

Second,
we must address whether Appellees breached their duty to exercise ordinary care
in maintaining the walkway in a reasonably safe condition for its intended use.
Denson v. SM-Planters Walk Apartments, 183 So. 3d 1048, 1050-51 (Fla.
1st DCA 2015). In Denson, this court acknowledged that a landowner has
two distinct duties to business invitees: the duty to warn of latent, dangerous
conditions, and the duty to maintain the premises in a reasonably safe
condition. Id. In Dampier v. Morgan Tire & Auto, LLC, as
discussed in Denson, the Fifth District discussed the applicable legal
principles:

Nonetheless, 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. See, e.g., Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983)
(holding difference in floor levels is not inherently dangerous condition, even
in dim lighting, so as to constitute failure to use due care for safety of
person invited to premises). Other conditions are dangerous, but are so open
and obvious that an invitee may be reasonably expected to discover them and to
protect himself. See, e.g., Ashcroft v. Calder Race Course, Inc.,
492 So. 2d 1309, 1311 (Fla. 1986). The rule applied in these circumstances is
to absolve the landowner of liability unless the landowner should anticipate or
foresee harm from the dangerous condition despite such knowledge or
obviousness. Id.; Etheredge v. Walt Disney World Co., 999 So. 2d
669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality,
920 So. 2d 1233, 1234 (Fla. 5th DCA 2006).

82
So. 3d 204, 206 (Fla. 5th DCA 2012) (emphasis added). Thus, there are two types
of obvious conditions that will not constitute a breach of a duty to maintain
premises in a reasonably safe condition, to wit: 1) where the condition is so
“open and obvious and not inherently dangerous”; or 2) where the condition may
be dangerous, but is “so open and obvious that an invitee may be reasonably
expected to discover them to protect himself.” Id. Thus, while many
decisions speak of the duty to warn and the duty to maintain premises in a
reasonably safe condition as separate and distinct duties, for analytical
purposes the duties are not mutually exclusive, as the open and obvious nature
of a condition may preclude a finding of a breach of either duty, as a matter
of law.

In Denson,
this court reversed summary judgment because material facts remained in dispute
as to whether the landowner properly mixed a non-skid additive to
outdoor-concrete paint. 183 So. 3d at 1051-52. But here, we hold that under
these facts, Appellees did not breach their duty to exercise ordinary care to
maintain the premises in a reasonably safe condition, for either of two
reasons: first, that the condition so open and obvious and not inherently
dangerous, or second, assuming arguendo that the pallet’s location was
dangerous, it was so open and obvious, and previously observed by Appellant,
that Appellees could reasonably expect Appellant to protect himself from the
purported danger.

Addressing
the first possible reason in determining whether Appellees are absolved of any
liability of their duty to maintain the premises in a reasonably safe
condition, we hold that the pallet’s location was open and obvious and not
inherently dangerous. There are times when conditions are so common, or so
innocuous in our everyday life, that they do not impose liability on the
landowner. Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d
1207, 1208 (Fla. 5th DCA 1990) (holding that condition was “so open and
obvious, so common and so ordinarily innocuous” that it was not dangerous as a
matter of law where plaintiff tripped over joint in gas station parking lot
where concrete met asphalt); Aventura Mall Venture v. Olson, 561 So. 2d
319, 321 (Fla. 3d DCA 1990) (agreeing with Fifth District’s holding in Ferguson
and affirming summary judgment on same grounds when plaintiff tripped over
sidewalk curb); Ramsey, 124 So. 3d at 419 (affirming summary judgment
where plaintiff tripped over wheel stop in center of parking space that
complied with ADA regulations).

In McAllister,
the plaintiff hurt his foot “when he caught his heel on one of a number of
concrete blocks marking the property line of the Wisteria Bar.” 542 So. 2d at
470. The plaintiff acknowledged that “he knew the line of blocks existed before
the accident” and on the night of the accident “he saw the blocks and ‘was
trying to step over the blocks’ when his heel caught.” Id. This court
affirmed the grant of summary judgment, discussing in detail the applicable
legal principles, noting that the plaintiff “saw and knew about the blocks at
the time of the accident, and there was no question of duty to warn, since
plaintiff’s knowledge was equal with that of the defendants.” Id. at 471
(emphasis in original). While the court noted that the blocks were present for
17 years and no one had previously injured themselves, the court focused
primarily on the fact that the plaintiff had seen the blocks before he injured
himself. Further, this court emphasized that “a person is not required to take
measures to avoid a danger which the circumstances as known to him do not
suggest as likely to happen. Previous decisions have held that protruding,
uneven bricks bordering a tree did not constitute a dangerous condition . . .
even though the area . . . was one in which young children played.” Id.
(citation omitted). Thus, McAllister provides authority for our holding
here.

In Miranda
v. Home Depot U.S.A., Inc., the plaintiff, in attempting to reach a planter
on a display shelf which was blocked by a ladder, “projected her head and
shoulders and upper torso through the ladder,” and after standing up, hit a
cross bar on the ladder and injured her right eye, leading to her suit against
Home Depot. 604 So. 2d 1237, 1238 (Fla. 3d DCA 1992). In moving for summary
judgment, Home Depot argued that “there was no breach of reasonable care and
that the presence of the ladder was open and obvious, making Miranda’s conduct
the sole proximate cause of the accident.” Id. (emphasis added).
The Third District affirmed the trial court’s grant of summary final judgment. Id.
The Third District noted Miranda’s argument that “ladders on the store’s
selling floor represent an unreasonable risk of harm to customers and thus the
relative negligence of the parties . . . creates a question of fact precluding
summary judgment.” Id. The court rejected this argument, distinguishing Nichols
v. Home Depot, Inc., 541 So. 2d 639 (Fla. 3d DCA 1989), where a patron
climbed a ladder in the store and fell off the ladder, noting that in Nichols,
the court recognized a duty based on the “foreseeable risk of harm . . . that
‘customers, inexperienced in scaling ladders and unknowledgeable about the
weights of items in the overhead areas’ ” would potentially harm themselves by
attempting to use the ladders when store assistance was not available. Miranda,
604 So. 2d at 1238. But the court, relying on Stahl v. Metropolitan Dade
County, 438 So. 2d 14 (Fla. 3d DCA 1983), reiterated that only those
injuries “ ‘such as ordinarily and naturally should have been regarded as a
probable, not a mere possible, result of the negligent act‘ ” are entitled
to compensation based on a violation of a legally-imposed duty to maintain the
premises in a safe condition. Id. (emphasis in original).

This
is closely comparable to the facts here: Appellant’s action of walking right
into the pallet, not an inherently dangerous condition and one that he had
previously and contemporaneously observed twice before, was the sole proximate
cause of his injuries. It is neither “probable nor foreseeable” that someone
seeing a pallet on the ground, and having passed by it twice before, would fail
to avoid the open and obvious condition. The standard must be based on an
objective evaluation, understanding that every case will involve an accident,
which cannot by itself mandate that summary judgment never be granted in cases
involving open and obvious conditions.

We
would also hold here that even if the pallet’s location was inherently
dangerous, which it was not, that summary judgment was properly granted,
because Appellant saw the allegedly dangerous condition, which was so open and
obvious, that he could be “ ‘reasonably expected to discover [the pallet] and
to protect himself.’ ” Denson, 183 So. 3d at 1051 (quoting Dampier,
82 So. 3d at 206). As we discussed above, the Florida Supreme Court held that a
“proprietor has a right to assume that the invitee will perceive that which
would be obvious to him upon the ordinary use of his own senses.” Earley,
61 So. 2d at 478. Here, this is precisely the case, as Appellant saw the
purportedly dangerous condition but failed in the “ordinary use of his own
senses” to avoid the observed condition.

To
reverse the summary judgment here would make business owners universal insurers.
Business owners receive shipments of products every day, which must be stored
somewhere before final placement, and if a customer sees the placement of
the products but trips and falls over them, the customer, or invitee, has
violated his own duty to exercise reasonable care for his own safety. Here, as
the trial court stated in its order granting summary judgment, one of the
Appellees was delivering merchandise to the other Appellee, “a practice that is
necessary in everyday life in our society. . . . The condition in this case was
a large pallet . . . that invitees walked by rather than walking into, as
[Appellant] unfortunately did on his third of four exits from the store. The
Court concludes that the condition in this case was not inherently dangerous.”
We agree.

And
we do not think that Owens v. Publix Supermarkets, Inc., 802 So. 2d 315
(Fla. 2001), requires us to reverse, because there, an injured party slipped on
a piece of discolored banana on the floor that was unseen by the plaintiff. The
supreme court noted that “[t]he existence of a transitory foreign substance on
the floor is not a safe condition.” Id. at 330. The court went on to
hold that

the existence of a foreign
substance on the floor of a business premises that causes a customer to fall and
be injured is not a safe condition and the existence of that unsafe condition
creates a rebuttable presumption that the premises owner did not maintain the
premises in a reasonably safe condition.

Id. at
331. A pallet used for unloading goods is not a “foreign substance,” but a
legitimate aspect of a retail-business economy. Furthermore, the Owens
court did not overrule its earlier announced principle in Earley, and
that court has long held that other courts are not to assume that the supreme
court overrules itself sub silentio. Arsali v. Chase Home Fin. LLC,
121 So. 3d 511, 516 (Fla. 2013) (“[W]e did not intentionally overrule our
previous decision . . . sub silentio, because this Court does not engage
in such practices.”); Puryear v. State, 810 So. 2d 901, 905-06 (Fla.
2002) (“We take this opportunity to expressly state that this Court does not
intentionally overrule itself sub silentio.”).

We
also think our decision in Lomack v. Mowrey, 14 So. 3d 1090, 1092 (Fla.
1st DCA 2009), is not to the contrary, as the exposed and “loose wires” there
created a hazard, and it was not clear from our decision whether the landowner
in Mowrey complied with the duty to warn the plaintiff of the hazard. Id.
We think the hazard in Mowrey is qualitatively different than the
temporary placement of a pallet outside a store’s exit.

The
ultimate question is “whether the owner or possessor should have anticipated
that the dangerous condition would cause injury despite the fact that it was
open and obvious.” Moultrie v. Consolidated Stores Int’l Corp., 764 So.
2d 637, 640 (Fla. 1st DCA 2000). In Moultrie, this court properly
reversed summary judgment where, unlike here, the invitee did not see the empty
pallet left unmarked in the store aisle, and she fell over the pallet while
looking upward in another direction and backing up, tripping over the pallet.
Thus, “the height of the pallet was such that it might not fall within the line
of vision of adult invitees who entered . . . to purchase items placed on
counters and shelves.” Id. at 639-640. This court concluded by holding
that the case “does not present a condition which was so open and obvious and
ordinary that it could be held as a matter of law that the pallet did not
constitute a foreseeable risk of harm to individuals . . . .” Id. Here,
Appellant actually observed the pallet’s location; thus, even assuming the
pallet created a dangerous condition, Appellant had a duty to avoid the previously
observed pallet, which he did twice before he fell.

In
another example, in Burton v. MDC PGA Plaza Corp., 78 So. 3d 732 (Fla.
4th DCA 2012), the Fourth District reversed summary judgment where the
plaintiff stepped in a pothole on the defendant’s property. Although the
plaintiff was aware of the “glaringly” open and obvious hazard, and had “
‘knowledge equal to or superior to that of the landowner,’ ” the court
correctly noted that a “pothole is not a natural condition, nor does it create
a reasonable risk of harm. A pothole forms when a landowner fails to maintain
the property . . . .” Id. at 733, 735. Thus, “the defendants’ duty to
maintain the premises in a reasonably safe condition was not discharged by the
plaintiff’s knowledge of the pothole before she fell.” Id. at 735.

But
the court in Burton also acknowledged the decision in Arnoul v. Busch
Entertainment Corp., 2008 WL 4525106 *3-4 (M.D. Fla. Oct. 6, 2008), where
the Middle District granted summary judgment where the plaintiff’s injuries were
caused by his own “failure to take precautions.” In Arnoul, the court
relied on this court’s decision in McAllister for the proposition that
that “ ‘some injury-causing conditions are so open and obvious that they can be
held as a matter of law not to give rise to liability as dangerous conditions.’
” Id. at *2 (quoting Taylor v. Universal City Prop. Mgmt., 779
So. 2d 621, 622 (Fla. 5th DCA 2001) and citing McAllister and Crawford
v. Miller, 542 So. 2d 1050, 1051 (Fla. 3d DCA 1989), for the proposition that
“where a plaintiff had knowledge of a protrusion onto a walkway, the premises
was not in an unreasonably dangerous condition, since the plaintiff’s injuries
could have been avoided by her taking due care to avoid them”). The Arnoul
court noted that the landowner must protect business invitees from potential
dangers by “repairing broken stairway handrails, removing slippery substances
on stairways, and lighting dark objects that may be hard to see at nighttime,
for example.” Id. (footnotes omitted). None of those hazards were
present here. But where the condition at issue is open and obvious, it is

only when a landowner should
anticipate that people will choose to negotiate obvious hazards and thereby
injure themselves, despite their awareness of the danger, is the landowner
responsible for injury resulting from an obvious condition. Such anticipation
should occur, for example, when avoiding the hazard would be impossible or
highly inconvenient.

Id.
(emphasis added) (citation omitted). Thus, the corollary proposition is true as
well:

If the obviousness of the
condition would lead a reasonable person to believe that the danger will
be avoided, the condition is not unreasonably dangerous, and the landowner is
not liable. . . . So, merely being on another’s property when injured by such
conditions does not automatically allow a person to shift the fault for
accidents caused by his own negligence.

Id. at
*3 (emphasis added). Or as stated in Crawford, “The mere occurrence of
an accident does not, without more, give rise to an inference of negligence.”
542 So. 2d at 1051. We concur with this correct legal and logical analysis,
which aligns with our analysis and holding in McAllister.

To
reverse the summary judgment here would make all landowners subject to a jury
trial when a business invitee, by his own negligence, unnecessarily trips on an
open and obvious condition, of which he is aware, when no reasonable person
would injure himself by such negligence. The facts of Arnoul are closely
similar with the facts here: Despite seeing the branch over a busy sidewalk at
Busch Gardens, Arnoul argued that he was distracted by his granddaughter and
the “amount of pedestrian activity and the flashy displays and award-winning
landscaping [all] designed to lure pedestrians’ eyes away from the path in
front of them [and] make it likely that pedestrians [would] not notice the
branch and [would] walk into it . . . .” Arnoul, 2008 WL 4525106 at 3.
Here, Appellant’s argument is that, although he knew of the pallet on the
ground several feet in front of the exit door, he was distracted while carrying
empty boxes and tripped over it. Like here, the Arnoul court rejected
the plaintiff’s argument for two reasons: First, the plaintiff knew of the
branch over the walkway, and second, to hold the property owner liable for
breach of a duty to maintain reasonably safe premises in such a scenario would
mean adopting a universal rule finding premises liability in all cases, as
there are “no premises safe enough to entirely foreclose the risk that a guest
might injure himself during an inattentive moment.” Id.

It
would defy common sense and any valid notion of a rational allocation of risk
in everyday life to make all businesses everywhere liable for unreasonable
inattentiveness of invitees. As concisely noted by the Arnoul court,
this court too “is not prepared to dispense with the duty of care owed to one’s
self, the exercise of which others are entitled to depend upon.” Id.

A
premises owner operating a lawful business benefits society, and part of the
burden of a viable commercial enterprise often requires the receipt and
stocking of goods and products. The law provides protection to premises owners
from unjustified and costly litigation, when any reasonably attentive
invitee who saw an open and obvious condition — such as a pallet partially
blocking a walkway — would act in his or her own interest in personal safety,
and by the use of ordinary common sense, avoid the observed transitory item. Arnoul,
2008 WL 4525106 at *4; Earley, 61 So. 2d at 478; Ramsey, 124 So.
3d at 417; McAllister, 542 So. 2d at 470; Ferguson, 556 So. 2d at
1208. Appellees were under no duty to warn Appellant of the open and obvious
pallet, where Appellant’s knowledge of the pallet was equal to or superior to
Appellees’ knowledge. Furthermore, Appellees did not fail to maintain the
premises in a safe condition where Appellant saw the pallet, which was not
inherently dangerous, or if considered dangerous, was readily avoidable, had
Appellant engaged in the “ordinary use of his own senses.” Earley, 61
So. 2d at 478. The legal duty of premises owners owed to business invitees is
based on logic, common sense, and human experience, and in this case the trial
court correctly granted summary judgment, because Appellees did not breach any
duty owed to Appellant, as a matter of law.

Contrary
to the dissenting opinion, we plainly do not hold that Appellees owed Appellant
no duty to maintain their premises in a reasonably safe condition. Rather, we
follow precedent to hold that Appellees complied with their duty to maintain
the premises in a reasonably safe condition by exercising ordinary care in
accepting delivery of an inventory shipment which, as the trial court correctly
noted, is an ordinary feature of everyday life. Appellees could not reasonably
have anticipated that Appellant would trip over the pallet he had previously
observed and safely walked around twice before the accident.

AFFIRMED.
(OSTERHAUS, J., CONCURS; BILBREY, J., CONCURRING IN PART AND DISSENTING IN
PART.)

__________________

(BILBREY,
J., concurring in part and dissenting in part.) As the majority opinion
correctly notes, a business owner owes two “separate and distinct” duties to
business invitees. (Maj. Op. 3-4). See also Grimes v. Family Dollar
Stores of Florida, Inc., 194 So. 3d 424 (Fla. 3d DCA 2016). I agree that
the presence of the pallets and pallet jack was open and obvious such that
there was no duty to warn, since they were not inherently dangerous. See
Upton v. Rouse’s Enterprise, LLC, 186 So. 3d 1195, 1202 (La. Ct. App.
2016) (explaining “a pallet does not inherently pose an unreasonable risk of
harm.”). I therefore agree that summary judgment was appropriately granted as
to the Appellees’ duty to warn Appellant of objects he already knew or should
have known about. However, I believe questions of fact should have precluded
entry of summary judgment on the issue of whether Appellees used “ordinary care
to maintain [the] premises in a reasonably safe condition,” when a full pallet,
empty pallet, and pallet jack were positioned in close proximity to the only
means of entering and existing the premises and in the pathway to the parking
lot.1 See Rocamonde v. Marshalls
of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011); see also Lynch
v. Brown, 489 So. 2d 65, 67 (Fla. 1st DCA 1986) (holding “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.”). I would therefore reverse the grant of summary judgment as to the
Appellee’s duty to maintain the premises in a reasonably safe condition and
remand the case to the trial court for further proceedings.2

Here,
the Appellees’ motions for summary judgment recognized that there were two
separate duties alleged and therefore two issues for the trial court’s
consideration. The trial court’s order granting summary judgment also
recognized the two duties and thoroughly analyzed the duty to warn, Appellant’s
knowledge of the hazard, and the fact that the pallets and jack were not
inherently dangerous. But the trial court’s order did not explain why the
Appellees did not owe Appellant a duty to maintain the premises in a reasonably
safe condition. We are left with a review of the record to determine as a
matter of law whether no material issues of fact exist such that summary
judgment was appropriate as to Appellees’ duty to maintain the premises. See
Fla. R. Civ. P. 1.510; Lomack v. Mowrey, 14 So. 3d 1090 (Fla. 1st DCA
2009).

In
opposition to the motions for summary judgment, Appellant submitted the
affidavit of Jeremy Cummings, Ph.D., as expert opinion in the areas of human
factors, biomechanics, and biomedicine. Dr. Cummings’ affidavit stated that the
pallet was not in a reasonably safe location and that it was reasonable to
anticipate that Appellant’s attention could have been diverted when Appellant
tripped. Deposition testimony of Appellees’ employees showed that the pallets
were placed as they were so that the beer on the pallets could be monitored to
prevent theft. Appellant contended that a safer location for the pallets would
have been next to the entry door against the wall of the premises.

In
the past, this court has looked to the Restatement (Second) of Torts section
343A in analyzing legal principles of premises liability. Lynch, 489 So.
2d at 66; Ahl v. Stone Southwest, Inc., 666 So. 2d 922 (Fla. 1st DCA
1995); Moultrie v. Consol. Stores Int’l Corp., 764 So. 2d 637 (Fla. 1st
DCA 2000). Subsection (1) of section 343A states, “A possessor of land is not
liable to his invitees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge or obviousness.” Comment f to
this subsection states:

There are, however, cases in
which the possessor of land can and should anticipate that the dangerous
condition will cause physical harm to the invitee notwithstanding its known or
obvious danger. In such cases the possessor is not relieved of the duty of
reasonable care which he owes to the invitee for his protection. This duty may
require him to warn the invitee, or to take other reasonable steps to protect
him, against the known or obvious condition or activity, if the possessor has
reason to expect that the invitee will nevertheless suffer physical harm.

 

Such reason to expect harm to
the visitor from known or obvious dangers may arise, for example, where the
possessor has reason to expect that the invitee’s attention may be distracted,
so that he will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it. Such reason may also arise
where the possessor has reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the apparent risk. In such
cases the fact that the danger is known, or is obvious, is important in
determining whether the invitee is to be charged with contributory negligence,
or assumption of risk. . . . It is not, however, conclusive in determining the
duty of the possessor, or whether he has acted reasonably under the circumstances.

The
Restatement comments are consistent with Florida law that even when there is an
open and obvious hazard, “liability can still attach when the landowner or
possessor should have anticipated the possibility of injury resulting from the
hazard.” Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.
3d 120, 123 (Fla. 2d DCA 2015). In Cook, the court reversed a grant of
summary judgment where the plaintiff had tripped over an obvious pipe in a
walkway. Id. The court in Cook noted “while injuries caused by a
condition that is not ‘dangerous’ do not give rise to liability due to failure
to maintain the premises in a reasonably safe condition . . . whether the
exposed pipe was a ‘dangerous condition’ in the context of foreseeability is a
question to be answered by the jury.” Id. (citations omitted). Applying Cook
and the various cases it cites, the determination here of whether the pallets
and pallet jack were a “dangerous condition” such that Appellees should have
anticipated the possibility of Appellant’s injury is a question of fact for the
jury.

I
believe the situation here is similar to other cases where a material issue of
fact as to the possessor of the premises’ duty to maintain the premises
remained when a customer tripped on an open and obvious object. See De
Cruz-Haymer v. Festival Food Market, Inc., 117 So. 3d 885 (Fla. 4th DCA
2013) (open and obvious rumbled door mat); Skala v. Lyon Heritage Corp.,
127 So. 3d 814 (Fla. 2d DCA 2013) (obvious construction debris); Burton v.
MDC PGA Plaza Corp., 78 So. 3d 732 (Fla. 4th DCA 2012) (pothole known to
plaintiff); Taylor v. Tolbert Enters. Inc., 439 So. 2d 991 (Fla. 1st DCA
1983) (sand and water accumulated on steps and walkway known to plaintiff). In
all of these cases summary judgment was reversed because material issues of
fact remained regarding the possessor’s duty to maintain the premises in a
reasonably safe condition.

The
majority attempts to distinguish our decision in Lomack, but I
respectfully fail see to how it differs. Like here, the trial court’s order in Lomack
was “grounded on a finding that appellees had no duty to warn” but did not
analyze the duty to maintain the premises. 14 So. 3d at 1092. We reversed the
summary judgment for the landowners in Lomack noting that “an invitee’s
knowledge of a danger is normally not a complete bar to recovery, but rather
triggers the application of comparative negligence principles.” Id. I
fail to see how the exposed computer cable in an office which the appellant in Lomack
had traversed at least a hundred times would implicate a duty to maintain a
premises but pallets temporarily placed adjacent to the entry and exit of a
premises, and between the premises and its parking lot, do not.

I
do not believe that Appellees have carried their burden to show no disputed
issues of material fact remain for summary judgment on the issue of their duty
to maintain the premises. For the above reasons, I respectfully dissent from
the portion of the majority opinion which holds Appellees had no duty to
maintain the premises. I would remand the case back to the trial court for
further proceedings.

__________________

1Appellant
tripped over the empty pallet or tips of the pallet jack while exiting the premises
for a third time, this time with an armful of boxes which obstructed his
vision.

2Appellant
would still need to prove that Appellees “had actual or constructive notice of
the dangerous condition.” Grimes, 194 So. 3d at 427 (citing Schaap v.
Publix Supermarkets, Inc., 579 So. 2d 831, 834 (Fla. 1st DCA 1991)).

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