Middleton v. Don Asher & Assocs., Inc.
262 So. 3d 870
| Fla. Dist. Ct. App. | 2019Background
- Middleton, a Lemon Tree condominium resident for 15 years, tripped on an uneven sidewalk on condominium property and sued the condominium association and its property manager for negligence.
- She had frequently used and was familiar with the area where she fell.
- Appellees moved for summary judgment, arguing the sidewalk defect was open and obvious, so they had no duty to warn.
- Middleton conceded obviousness but argued a factual issue existed whether Appellees should have anticipated residents would encounter the defect and thus had a duty to repair.
- The trial court granted summary judgment for Appellees; the appellate court reviewed whether open-and-obviousness defeated all duties or whether a duty to maintain/repair remained.
- Appellees had known of the sidewalk disrepair for up to eighteen months (marked by blue dots for repair), but took no corrective action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether open-and-obvious sidewalk defect absolves landowner of duty | Middleton: Even if obvious, appellees should have anticipated residents would use the sidewalk and be harmed; duty to repair remains | Appellees: Obvious condition negates duty to warn or liability; summary judgment appropriate | Reversed: Obviousness may discharge duty to warn but not duty to maintain/repair; factual question exists whether appellees should have foreseen harm |
| Whether summary judgment was proper | Middleton: Material fact issue exists (knowledge of defect and inaction) precluding summary judgment | Appellees: No genuine issue because defect was open and obvious as a matter of law | Reversed: summary judgment improper due to factual dispute about foreseeability and duty to repair |
| Whether plaintiff’s familiarity bars recovery entirely | Appellees: Middleton knowingly encountered the risk; comparative negligence issue | Middleton: Familiarity does not eliminate appellees’ duty to maintain | Court: Familiarity may raise comparative negligence but does not resolve duty to maintain at summary judgment stage |
| Applicability of precedent distinguishing duty to warn vs. duty to repair | Middleton: Cites Lotto and others to show obligation to repair remains despite obviousness | Appellees: Cite cases holding uneven surfaces are not inherently dangerous and open-and-obvious | Court: Agrees unevenness is open-and-obvious but relies on Lotto/others to hold maintenance duty survives |
Key Cases Cited
- Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990) (articulates open-and-obvious danger doctrine)
- Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001) (duty to invitees: maintain premises and warn of latent dangers)
- Casby v. Flint, 520 So.2d 281 (Fla. 1988) (uneven floor levels not inherently dangerous as a matter of law)
- De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885 (Fla. 4th DCA 2013) (obviousness discharges duty to warn but not duty to maintain)
- Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012) (landowner may remain liable if it should have anticipated harm despite obviousness)
- Lotto v. Point East Two Condominium Corp., 702 So.2d 1361 (Fla. 3d DCA 1997) (condominium liable to repair sidewalk despite obvious deterioration; factual issue on foreseeability)
- Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA 1990) (six-inch sidewalk curb not a concealed danger)