Schoen v. Gilbert, 404 So. 2d 128

Dissenting Opinion

DANIEL S. PEARSON, Judge,

dissenting.

I respectfully dissent. First, the majority’s decision is anachronous in light of this State’s adoption eight years ago of a comparative negligence rule. Second, the majority’s decision is unsound even when tested under the disрlaced law of contributory negligence.

A.

As is so explicit in Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971), Florida’s “step in the dark” rule, namely, that one who enters а totally unfamiliar area in the darkness is not ordinarily justified in proceeding without first ascertaining whether there are obstacles to safe progress, is a rule of contributory negligence. Thus, in times past, a plaintiff whose behavior was within the parameters of this rule was barred from recovery, not because an obstaсle in the dark was not a dangerous condition, but because the plaintiff’s negligence contributed, in some appreciable way, to cause the injury.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the Florida Supreme Court abandoned the contributory nеgligence rule in favor of a rule of comparative negligence. Given that an obstacle in the dаrk is, and always has been, a dangerous condition, the question, since Hoffman v. Jones, is to what extent did the plaintiff’s negligence cause thе injury. ‍​​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌‌​‌​‌​‌​​‌​‌‌​​‌​​​​​​‌‌‌‌‌‍That question is one for a jury to answer.

This case is not unlike Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), rev. denied, 389 So.2d 1112 (Fla.1980). There Mrs. Ellis, visiting her son’s new home for the first time, was given the traditional grand tоur, which unfortunately included a six-to-eight-inch step-down in the garage. Mrs. Ellis failed to observe that the upper level of the garage floor had a two-inch red line painted along the edge. Otherwise, both levels of thе floor were gray. The court held, inter alia, that whether the homeowner had a duty to warn Mrs. Ellis was a factual question to be decided by a jury. Significantly, the court in Ellis, reversing a summary judgment in favor of the defendants, rejected an entirе line of cases which presumably would have sanctioned summary judgment because the exemption from liability in those cases was founded upon the now-extinct contributory negligence rule.

An obstacle in the dark is а hazard, whether obvious or not. Since obviousness relates to the plaintiff’s ‍​​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌‌​‌​‌​‌​​‌​‌‌​​‌​​​​​​‌‌‌‌‌‍negligence, not the defendаnt’s, obviousness can no longer bar recovery as a matter of law. Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA), rev. denied, 389 So.2d 1113 (Fla.1980); Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980). Cf. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979) (under comparative negligеnce, the obvious danger of a product is a defense, not a bar to recovery). If taking the “step in thе dark” is, alternatively, considered a risk assumed by the plaintiff, see Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), the result is the same since, under comparаtive negligence, the doctrine of assumed risk is not a bar to recovery. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In short, it appears that the “step in the dark” rule, as we once knew it, is no more, and its remnants will be found in instructions to the jury-

B.

The error of the mаjority is exacerbated by the fact that even under pre-compara-tive ‍​​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌‌​‌​‌​‌​​‌​‌‌​​‌​​​​​​‌‌‌‌‌‍negligence law, Mrs. Schoen was entitled to have her case submitted to a jury.

Briefly, the facts before the trial court were that Mrs. Sсhoen and her husband were guests, for the first time, in Gilbert’s newly-acquired home; while the three were sitting in the kitchen, Gilbert asked Mrs. Schoen if she would like to see his living room; Mrs. Schoen assented, got up, and, unguided by Gilbert, who remained in the kitсhen with Mr. Schoen, made her way into a foyer area darkened by drawn shades and shutters and then fell into the sunken and dark living room.

Under these circumstances, the cases relied on by the majority for the proposition that a mere difference in floor levels is not a dangerous condition requiring warning¹ are inappositе. Instead, because this was not just a difference in floor levels, but rather a difference in floor levels in a darkened area, the applicable rule in the days of contributory negligence was that “where а person proceeds in the dark but has the right reasonably to expect that the route ahead is frеe of the particular physical impediment which causes injury, it is for the jury to determine from all the circumstances whether that person used due care.” See Brant v. Van Zandt, 77 So.2d 858 (Fla.1955); Yoder v. Greenwald, supra. I think it is indisputable that Gilbert’s invitation to Mrs. Schoen to look at his living room, combined with his ‍​​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌‌​‌​‌​‌​​‌​‌‌​​‌​​​​​​‌‌‌‌‌‍failure to accompany her or to light the area, created jury questions whether Mrs. Sсhoen had the right to reasonably expect that the course was clear and whether she used due care.

Accordingly, I would reverse the summary judgment for the defendants and remand the cause for trial.

Notes

1 . Compare, however, Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965) (while an uneven level itself may not be dangerous, surrounding circumstances in a particular case may create a duty to warn).

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Lead Opinion

PER CURIAM.

The final summary judgment under review which was entered below in favor of the defendant Robert Gilbert and his insurer Highland Insurance Company is affirmed upon a holding that: (a) the defendant Gilbert as a landowner had no duty to warn the plaintiff Sylvia Schoen as a social guest in ‍​​‌‌​​‌​‌‌‌‌​‌​‌​‌‌‌‌‌​‌​‌​‌​​‌​‌‌​​‌​​​​​​‌‌‌‌‌‍the defendant Gilbert’s home as to a six-inch drop between the foyer and living room of the defendant’s house into which the plaintiff slipped and fell, as a mere shift in thе level of floors between two rooms in a house is not a dangerous condition requiring advance warning thеreof; Hoag v. Moeller, 82 So.2d 138 (Fla.1955); Bowles v. Elkes Pontiac Co., 63 So.2d 769 (Fla.1953); General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964); Meyer v. Pitzele, 122 So.2d 228 (Fla. 3d DCA 1960); and (b) the fact that the foyer and living room herein were shrouded in semi-darkness at the time the plаintiff Sylvia Schoen slipped and fell did not elevate, in our view, the above natural drop-off into a dangеrous condition requiring a warning thereof, as such semi-darkness was a factor which should have signaled cautiоn to the plaintiff Sylvia Schoen and was relevant only as to said plaintiff’s comparative negligence. See e. g., Yoder v. Greenwald, 246 So.2d 148 (Fla. 3d DCA 1971); Trinity Episcopal Church of Vero Beach v. Hoglund, 222 So.2d 781 (Fla. 4th DCA 1969).

Affirmed.

Case Details

Case Name: Schoen v. Gilbert

Court Name: District Court of Appeal of Florida

Date Published: Apr 21, 1981

Citations: 404 So. 2d 128; 1981 Fla. App. LEXIS 19300; No. 80-163

Docket Number: No. 80-163

Court Abbreviation: Fla. Dist. Ct. App.