42
Fla. L. Weekly D938aTop of Form

Torts
— Premises liability — Uninvited licensee — No error in entering judgment in
favor of commercial property owner where undisputed facts showed that plaintiff
entered property, including area of city’s utility easement in which accident
occurred, without any express or reasonably implied invitation and where record
established, without genuine issue of material fact, that owner did not breach
any duty it owed to plaintiff as an uninvited licensee or trespasser

DELORES ARP, Appellant, v. WATERWAY
EAST ASSOCIATION, INC., a Florida non-profit corporation, W.E. ASSOCIATION,
INC., a Florida non-profit corporation, WATERWAY CONDOMINIUM ASSOCIATION, INC.,
a Florida non-profit corporation, and CITY OF DELRAY BEACH, Appellees. 4th
District. Case No. 4D16-114. April 26, 2017. Appeal from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge;
L.T. Case No. 502013CA015566XXXXMBAN. Counsel: Chad E. Brocato, Sr. of Murphy
& Brocato, Coconut Creek, for appellant. Thomas A. Valdez and Karen M.
Shimonsky of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellees
Waterway East Association, Inc., W.E. Association, Inc. and Waterway
Condominium Association, Inc.

(TAYLOR, J.) In this premises
liability action, the plaintiff, Delores Arp, appeals a final judgment entered
in favor of one of the defendants, W.E. Association, Inc., following the trial
court’s order granting W.E. Association’s motion for summary judgment. Because
the plaintiff was an uninvited licensee at best, and because W.E. Association
did not breach any duty it owed to her in her capacity as an uninvited
licensee, we affirm.

At around 11:00 p.m. one evening,
the plaintiff was injured while walking over a pathway of “paver stones”
located in the area of a utility easement on property owned by W.E. Association
and operated as a shopping center. The plaintiff stepped on a cracked paver
stone that was “a little loose,” causing her to roll her ankle and fall. The
accident occurred as the plaintiff and a companion were walking back to the
plaintiff’s home after taking a dinner cruise in Delray Beach.

Although the plaintiff and her
companion had walked along public roads on the way to the dinner cruise, they
decided to take a shortcut on the way home. To access the plaintiff’s street
via this “cut through,” one has to go through the shopping center’s parking
lot, step over a raised curb at the end of the parking lot, and then walk
through a grassy area, over a short path of paver stones located next to a
storm pump station, through more grass, and around a guardrail.

The “cut through” area of the
property is subject to a perpetual easement in favor of the City of Delray
Beach for the purpose of the installation and maintenance of public utilities.
The easement contains multiple storm pumps, which are maintained by the City.

The “cut through” did not have a “No
Trespassing” sign at the time of the incident. The plaintiff testified that she
regularly saw other people using the “cut through.”

On the evening of the accident, the
plaintiff did not visit any of the businesses in the shopping center. The
reason she took the shortcut on W.E. Association’s property was because she
“[j]ust wanted to get home.”

The plaintiff filed a negligence
action against W.E. Association and other defendants, alleging that she was an
implied invitee on the property by virtue of the creation of the pathway and
that she was injured as a result of the defendants’ negligent maintenance of
the pathway. The plaintiff later filed an amended complaint, adding the City as
a defendant.

W.E. Association ultimately moved
for summary judgment, arguing in relevant part that: (1) it did not breach any
duty to the plaintiff, who was either a trespasser or an uninvited licensee,
and (2) it had no duty to maintain an area covered by an exclusive utility
easement granted to the City.

The trial court granted the motion
for summary judgment, finding that there were no genuine issues of material
fact. The trial court reasoned that the plaintiff “was at best a licensee” and
that W.E. Association’s “only duty was not to harm her willfully or wantonly.”1 The trial court later entered a final
judgment in favor of W.E. Association.

On appeal, the plaintiff argues that
summary judgment was improper because she was an implied invitee on the
property. She claims that the paver stones were open to the public and were
utilized by the public as a convenient pathway between the shopping center and
the nearby residences. Alternatively, she argues that factual issues regarding
her status on the property created a question for the jury. For the reasons
that follow, we find the plaintiff’s arguments unpersuasive.

An order granting summary judgment
is reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d
1205, 1206 (Fla. 4th DCA 2010).

“Summary judgment is appropriate
only where there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law.” Cohen v. Arvin, 878 So. 2d
403, 405 (Fla. 4th DCA 2004). “[T]he burden is upon the party moving for
summary judgment to show conclusively the complete absence of any genuine issue
of material fact.” Albelo v. S. Bell, 682 So. 2d 1126, 1129 (Fla. 4th
DCA 1996). “[A]ll inferences must be made in favor of the non-moving party.” Cohen,
878 So. 2d at 405.

Under the common law, a visitor who
enters the private property of another falls within one of three
classifications: an invitee, a licensee, or a trespasser.2 Post v. Lunney, 261 So. 2d
146, 147 (Fla. 1972). “The classification of the entrant is significant because
the duty of care owed by the landowner varies according to the visitor’s
status.” Barrio v. City of Miami Beach, 698 So. 2d 1241, 1243 (Fla. 3d
DCA 1997). The only duty a landowner owes to a trespasser or uninvited licensee
is “to avoid willful or wanton harm to him and, upon discovery of his presence,
to warn him of any known dangers which would not be open to his ordinary
observation.” Nolan v. Roberts, 383 So. 2d 945, 946 (Fla. 4th DCA 1980).

An invitee is a visitor on the
premises by invitation, either express or reasonably implied, of the owner. Wood
v. Camp, 284 So. 2d 691, 695 (Fla. 1973). An “invitation” means that “the
visitor entering the premises has an objectively reasonable belief that he or
she has been invited or is otherwise welcome on that portion of the real
property where injury occurs.” § 768.075(3)(a)1., Fla. Stat. (2011). However,
erecting “No Trespassing” signs “is purely optional to a landowner,” so the
absence of such signs does not mean that a landowner has impliedly invited the
public on the land. Bishop v. First Nat’l Bank of Fla., Inc., 609 So. 2d
722, 725 (Fla. 5th DCA 1992).

In determining whether one attains
the status of invitee, Florida courts apply the “invitation test.” Post,
261 So. 2d at 148-49. As we have explained:

[T]he
invitation test bases “invitation” on the fact that the occupier by his
arrangement of the premises or other conduct has led the entrant to believe
that the premises were intended to be used by visitors for the purpose which
this entrant was pursuing, and that such use was not only acquiesced in by the
owner or possessor, but that it was in accordance with the intention and design
with which the way or place was adopted or prepared.

Smith v. Montgomery Ward & Co., 232 So. 2d 195, 198 (Fla. 4th DCA 1970).

An uninvited licensee is a person
who chooses “to come upon the premises solely for [his or her] own convenience
without invitation either expressed or reasonably implied under the
circumstances.” Wood, 284 So. 2d at 695. “An uninvited licensee is
neither an invitee nor a trespasser, but rather, a legal status in between
whose presence is neither sought nor forbidden, but merely permitted or
tolerated by the landowner.” Bishop, 609 So. 2d at 725. For example, a
visitor who entered the premises of an office building for the purpose of
finding a phone to call a cab was held to be an uninvited licensee, as she
“could not have reasonably believed that the owner had asked her onto its
premises for a mission which so obviously served only her personal convenience
and did not benefit the landlord in any way.”3 Iber v. R.P.A. Int’l Corp.,
585 So. 2d 367, 369 (Fla. 3d DCA 1991).

Finally, a trespasser is a person
“who enters the premises of another without license, invitation, or other
right, and intrudes for some definite purpose of his own, or at his
convenience, or merely as an idler with no apparent purpose, other than perhaps
to satisfy his curiosity.” Post, 261 So. 2d at 147 (quoting 23 Fla. Jur.
Negligence § 54 (1959)). A trespasser may be a “discovered trespasser” or an
“undiscovered trespasser.” § 768.075(3)(a)2. & 3., Fla. Stat. (2011). An
“undiscovered trespasser” is “a person who enters property without invitation,
either express or implied, and whose actual physical presence was not detected,
within 24 hours preceding the accident, by the person or organization owning or
controlling an interest in real property.” § 768.075(3)(a)3., Fla. Stat.
(2011). Nonetheless, when a landowner knows of the continued existence of
previous trespassers over a substantial period of time, a trespasser who is
injured on the land becomes elevated to the status of an uninvited licensee. Libby
v. W. Coast Rock Co., Inc., 308 So. 2d 602, 604 (Fla. 2d DCA 1975).

A plaintiff’s status on property may
be determined as a matter of law in some cases, but in others it may present a
factual question for the jury:

It may be
that on the facts in a particular case the determination of the category of the
plaintiff must be determined as a matter of law by the trial judge, as in other
cases in this respect; other causes will present a factual issue for the jury
as to whether plaintiff is invitee, licensee or trespasser under appropriate
instructions.

Wood, 284 So. 2d at 696.

For example, in Bottita v. Fla.
Power & Light Co., 534 So. 2d 1198, 1198-99 (Fla. 4th DCA 1988), we
reversed a summary judgment in favor of Florida Power and Light, holding that
the trier of fact was required to decide the status of a two-year-old child who
was playing with other children near a transformer located between two of her
neighbors’ homes and was injured when she tripped on a transformer pad. We
explained: “At the very least, we believe that the facts must be more fully
developed before a judgment on the issue may be made.” Id. at 1199.

Here, the trial court properly
granted summary judgment to W.E. Association. The undisputed facts established
that the plaintiff was, at best, an uninvited licensee, and that W.E.
Association did not breach any duty it owed to her in her capacity as an
uninvited licensee. The plaintiff’s reliance upon the Bottita case is
misplaced, as that case is factually distinguishable and involved a record that
was not “fully developed” as to the status of the claimant. By contrast, under
the fully developed record of this case, the determination of the plaintiff’s
status may be determined as a matter of law.

The plaintiff was on W.E.
Association’s property late at night; she was not there to visit any of the
businesses in the shopping center, and she was taking a shortcut on the
property solely for her own convenience. She was on the easement area without
invitation, either expressed or reasonably implied under the circumstances. Put
simply, no one would reasonably believe that the area near the storm pumps was
“intended to be used by visitors for the purpose which this entrant was
pursuing, and that such use was . . . in accordance with the intention and
design with which the way or place was adopted or prepared.” Smith, 232
So. 2d at 198.

This is not a case where the
plaintiff’s status on the property presents a factual question for the jury. No
reasonable jury could conclude from this record that the easement area was
designed as a “convenient path” for pedestrians to use to reach the shopping
center. Although the property contains a short pathway of paver stones next to
a storm pump station, the area plainly was not intended to be used by visitors
as a walkway to and from the parking lot of the shopping center.

Contrary to the plaintiff’s
suggestion, the absence of a “No Trespassing” sign does not constitute an
implied invitation by the owner. See Bishop, 609 So. 2d at 725. Nor can
an implied invitation be inferred from the fact that others may have trespassed
upon the easement area of the property over a substantial period of time. In
short, the undisputed facts show that the plaintiff entered W.E. Association’s
property, including the area of the City’s utility easement, without any
express or reasonably implied invitation.

Finally, the record establishes,
without genuine issue of material fact, that W.E. Association did not breach
any duty it owed to the plaintiff as an uninvited licensee or trespasser.
First, W.E. Association did not willfully or wantonly harm the plaintiff.
Second, the property did not contain any “known dangers” that were not open to
ordinary observation. The condition of the paver stones was open to ordinary
observation. Moreover, even if there were concealed dangers on the property,
W.E. Association was not aware of the plaintiff’s presence on the property
until after the incident. The duty to warn an uninvited licensee or trespasser
of a concealed danger known to the owner arises only when the owner discovers
the entrant’s presence on the property.

For the foregoing reasons, we affirm
the summary judgment in favor of W.E. Association.

Affirmed. (GERBER and KLINGENSMITH, JJ., concur.)

__________________

1The trial court did not address W.E.
Association’s alternative argument for summary judgment — namely, that it owed
no duty to the plaintiff because the accident occurred on a utility easement
that was maintained by the City. We likewise decline to reach that issue.

2Section 768.075(3), Florida Statutes
(2011), which in certain circumstances provides tort immunity to owners of real
property for injuries to trespassers on the property, divides the status of
entrants into slightly different categories: invitees, discovered trespassers,
and undiscovered trespassers.

3Other examples abound in the case
law. See, e.g., Barrio, 698 So. 2d at 1242-43 (a plaintiff
who was injured during a robbery that occurred while she was visiting a closed
public beach at about 3:30 a.m. was held to be an uninvited licensee because
the City “neither affirmatively promotes nor discourages visitation to the
beach during these early morning hours”); Morris v. Florentes, Inc., 421
So. 2d 582, 583 (Fla. 5th DCA 1982) (motorcyclist was, at best, an uninvited
licensee where he was an uninvited user of a bike trail on the defendant’s
property, which was commonly used in the recreational operation of dirt bikes
without being restricted or prohibited by the defendant).

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