The lower court sustained a motion to dismiss plaintiffs' amended complaint on the authority of Matson v. Tip Top Grocery, 151 Fla. 247, 9 So.2d 366, 368. The plaintiffs declined to further amend, final judgment was entered against them and they appealed.
The pertinent portions of the amended complaint, which charges negligence, are as follows:
We fail to see the similarity between the allegations in the declaration of the Matson case, supra, and the allegations in the complaint in this case. In the former the platform and the lunch counter were visible and obvious and the plaintiff in that case had clearly observed the very conditions which she alleged caused her injury. In the instant case, the complaint alleges that the drop-off in the floor level near the door presented a hidden and dangerous defect and alleged facts which, if true, tended to support the averment. In the Matson case Mr. Justice Adams, in speaking for this Court, said:
The above quotation from the opinion so clearly differentiates this case that further comment would be superfluous.
The appellee cites many cases of this Court where we have held that the owner of premises is not liable to an invitee for "approved conditions that are plainly observable." The very crux of this case, however, is whether the condition complained of in the complaint was in that category. The whole matter boils down to the question of whether, under the circumstances set forth in the complaint, the defendant exercised ordinary care to protect its patrons from injury. We hold that under the circumstances related in the complaint this was a matter to be decided by a jury under appropriate instructions from the Court. Mertz v. Krueger, Fla., 58 So.2d 160; Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720.
For the reasons herein stated the lower court erred in sustaining the motion to dismiss the amended complaint and in entering a judgment for the defendant.
TERRELL, Acting Chief Justice, and HOBSON, and MATHEWS, JJ., concur.
The appellee operated and maintained an automobile sales and showroom. The declaration alleged the showroom was in a dangerous and defective condition because there was an unsafe and obscure drop-off 18 inches inside the entrance door and approximately 3 inches in depth. The declaration further alleged that the entrance, surrounding floor and the drop-off were constructed and maintained with the same color floor material and that this fact, coupled with the slight drop-off, made the same a hidden and dangerous condition. Appellant did not allege that she did not see the drop-off or that she was looking at the floor or where she was stepping as she entered the door and went into the showroom.
In the case of Earley v. Morrison Cafeteria Co. of Orlando, Fla., 61 So.2d 477, 478, the complaint was that the defendant maintained a rubber or leather mat, 4 feet wide and 5 feet long, which was between 1/4 and 1/2 inch thick. Plaintiff alleged that this mat was an extreme hazard. One theory was that the mat being only 1/4 to 1/2 inch in thickness made it a hidden danger. This court said:
In the case at bar the appellants complain there was no mat and the drop-off being 3 inches thick, coupled with the fact that the color was the same as the rest of the floor, constituted a hidden danger. The danger should be more "patent and obvious" with a 3 inch drop-off, than a mat 1/4 to 1/2 inch thick.
It was the duty of the invitee to see that which would be obvious to her upon the ordinary use of her senses. It was the duty of the appellant to exercise a reasonable degree of care for her own safety.
In the case of Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366, 368, this Court said:
The allegation of the complaint that the drop-off was 3 inches in depth and was 18 inches inside the showroom from the door entrance, made the dangerous condition more obvious than a 1/2 inch thickness of a rubber or leather mat.
The allegation that the color of the platform drop-off and floor of the showroom was the same and this fact, coupled with the 3 inch drop-off, made the situation dangerous, contains no merit. It is a matter of general knowledge that there are multiple steps in hotels, restaurants, storerooms and other business establishments throughout Florida with the same color as that of the floor. Even the sidewalks and the drop-off from such sidewalks to the streets have the same color as the streets in thousands of instances throughout Florida.
Any person of ordinary intelligence entering a door to a building or a showroom, such as that shown in this case, has the duty and obligation to use ordinary care for his own safety and to look and see where he is going. There is no allegation in this complaint that the plaintiff looked, or took any other precaution, to see the condition which existed before she entered.
For the reasons stated, we recede from the former opinion reversing the judgment, and the said judgment should be and is hereby
THOMAS, SEBRING and ROBERTS, JJ., concur.
HOBSON, C.J., TERRELL and DREW, JJ., dissent and adhere to original opinion.