Cooper v. Makabe & Makabe LLC
8:23-cv-01157
| M.D. Fla. | Mar 3, 2025Background
- Plaintiff Kim Hamilton Cooper sued Makabe & Makabe, LLC (property owner) and CBRE, Inc. (property manager) for negligence after tripping over uneven brick pavers at a shopping center.
- The incident occurred in an outdoor courtyard at "Tyrone Corners" shopping center in St. Petersburg, Florida.
- Cooper alleges the pavers were raised and created a concealed danger; his spouse also sued for loss of consortium.
- Makabe moved for summary judgment, arguing the condition was open and obvious and not inherently dangerous, thus voiding any duty to warn or liability.
- Multiple witnesses and a plaintiff's expert supported Cooper's claim that the uneven pavers were not easily noticeable and had caused tripping incidents before.
- The court denied summary judgment, finding genuine disputes of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether uneven pavers were an open and obvious condition | Cooper argues the hazard was concealed, supported by witness testimony and an expert's findings | Makabe argues the condition was so open and obvious that no duty to warn existed | Not open and obvious as a matter of law; factual dispute for jury |
| Whether uneven pavers constituted an inherently dangerous condition | Cooper asserts pavers were in disrepair and created a hidden danger for invitees | Makabe asserts that uneven outdoor surfaces are common and not inherently dangerous | Issue of fact; jury must decide |
| Makabe’s duty to warn about the condition | Cooper contends a warning was required because the danger was concealed and not reasonably discoverable by invitees | Makabe argues no duty to warn exists because the danger should have been perceived by any reasonable invitee | Factual dispute exists; jury must decide |
| Makabe’s duty to maintain premises in reasonably safe condition | Cooper presents evidence that Makabe did not maintain the walkway safely and should have anticipated harm | Makabe claims duty was met and no foreseeable harm from a commonplace condition | Factual dispute exists; jury must decide |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (burden of proof at summary judgment)
- Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (duty to warn and duty to maintain under Florida premises liability law)
- Middleton v. Don Asher & Assocs., Inc., 262 So. 3d 870 (uneven sidewalk generally open and obvious, but factual issues may preclude summary judgment)
- Kersul v. Boca Raton Community Hospital, Inc., 711 So. 2d 234 (duty to warn as issue for jury when evidence indicates the condition was not open and obvious)
- Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574 (maintenance duty and issues of fact in premises liability)