Conrad A. SPAULDING, and Betty Spaulding, His Wife, Appellants,
v.
CITY OF MELBOURNE, Etc., et al., Appellees.
District Court of Appeal of Florida, Fifth District.
Catherine A. Riley, of Blumenthal, Schwartz & Riley, P.A., Titusville, for appellants.
William L. Mims, Jr., of Sanders, McEwan, Mims & McDonald, Orlando, for appellee, City of Melbourne.
Mitchell J. Frank, of Rogers, Dowling and Bos, Orlando, for appellees, Southern Bell Telephone and G.H. Skipper, Inc.
ORFINGER, Judge.
The plaintiffs appeal from an adverse summary final judgment in this personal injury suit. We find that triable issues of fact exist and that defendants were not entitled to a judgment as a matter of law, so we reverse.
Plaintiffs suеd the City of Melbourne (City), Southern Bell Telephone and Telegraph Company (Southern Bell) and G.H. Skipper, Inc. (Skipper) alleging that Southern Bell had caused a public sidewalk tо be broken up by Skipper, its contractor, for the purpose of laying a cable, and that Southern Bell and Skipper created a dangerous condition by leaving the sidewalk broken up and in a state of disrepair without warnings or barricades. Plaintiffs further allegеd that the City negligently permitted the public sidewalk to remain in a state of disrepair for sо long a period of time that it knew or in the exercise of reasonable care should have known of its *227 dangerous condition, that Spaulding was walking on the sidewalk because she had no other way to cross the area in question, and that she caught her heel on a broken rock and fell, causing injuries to herself. Her husband joined in the suit seeking derivative dаmages.
There was evidence in the record to reflect that Southern Bell had hired Skiрper to break up the sidewalk so that Southern Bell could lay a cable, that the аrea was not barricaded nor was foot traffic otherwise diverted nor were there any warning devices placed there. There was also testimony that the sidewalk had been in this condition for three weeks, that leaving a sidewalk broken up for three weeks was too long a time and that to leave it broken and unbarricaded was dangerous. The trial court entered summary judgment in favor of all the defendants on the ground that there was no duty to warn plaintiff of the dangerous condition when her knowledge was equal to or superior to that of the defendants, and that plaintiff expressly assumed the risk of walking across the broken sidewalk.
Southern Bell and its agent created the condition in the sidewalk, and to that extent became the occupier of that strip of property. A property оwner or occupier owes two duties to an invitee: (1) to keep its property reasonably safe and protect an invitee from dangers of which the owner or oсcupier is aware; and (2) to give the invitee warning of concealed perils which аre or should be known to the owner or occupier, and which are unknown to the inviteе and cannot be discovered by him through the exercise of due care. Pittman v. Volusia County,
Similarly, it was error to rely on the doctrinе of express assumption of risk, because even assuming that plaintiff was fully aware of the condition of the sidewalk, such knowledge alone does not trigger that doctrine. In O'Connell v. Walt Disney World Company,
For an express assumption of risk to be valid whether it arises from a contract or from voluntary participation in an activity such as a sport it must be clear that the plaintiff understood that he was assuming the risk of the particular conduct by the defendant which caused his injuriеs. Restatement of Torts, Second, § 496B, comment d. No agreement to assume risks not known to the plaintiff will be inferred unlеss clearly intended. Restatement of Torts, Second, § 496 D, comment a.
Id. at 448.
The Florida supreme court has held that express assumption of risk requires that a plaintiff recognize the risk and then proceed in the face of such danger. Voluntary exposure is the bedrock upon whiсh the doctrine of express assumption of risk rests. Kuehner v. Green,
The final summary judgment is reversed and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
COWART, J., and PERRY, R.R., Associate Judge, concur.