HOBSON, Acting Chief Judge.
This is an appeal from a summary judgment entered in favor of the First Baptist Church and its insurance carrier, Home Insurance Corporation.
Appellants Heath filed their complaint against appellees for damages as a result of injuries sustained by Mrs. Heath in a fall at the church. It was adduced during the pendency of this action that Mrs. Heath fell when she tripped over the interior portion of the floor of the church which separated the church from the "Parrish Hall." The difference in the floor levels between the hall and the church was some 2 7/8" in height. This difference in height was attributed to the recent construction of the Parrish Hall six months prior to the accident herein.
In her deposition Mrs. Heath stated that she attended church fairly regularly. She also admitted that she knew the step was there, had stumbled on it three or four times before the accident, and had seen others stumble over it. However, appellants asserted that the coloring of the two different floor levels was similar and the lighting conditions present made it difficult for users to ascertain the difference between the two floor levels.
Thereafter the appellees moved for summary judgment and the appellants filed an affidavit of a safety engineering consultant in opposition. Upon hearing on the motion the court entered an order for the appellees finding that Mrs. Heath's knowledge of the condition was at least equal to that of the appellee church and that no duty existed on the part of the church to protect her or warn her of said condition. The court bottomed its decision on the law as applied in McNulty v. Hurley, 97 So.2d 185 (Fla. 1957). We think the decision reached by the lower court was error and we reverse.
Although this case involves an ordinary slip and fall negligence action, several questions remain as to whether the appellees here should have been given an opportunity for a full trial. At the outset we would note that while McNulty, supra, has not been expressly overruled, the ratio decidendi of that case has been altered in the subsequent decisions of Post v. Lunney, 261 So.2d 146 (Fla. 1972) and Wood v. Camp, 284 So.2d 691 (Fla. 1973). Both Post and Wood have effectively laid to rest the "mutual benefit" test in assessing whether a person on the land of another is an invitee or something less. The effect of those cases has been the express adoption in Florida of the "invitation test" as stated in 2d Restatement of Torts, § 332.
The lower court's reliance on McNulty, supra, although not clear from a reading of the order, seems to focus on the lack of benefit conferred by Mrs. Heath and her corresponding status as a licensee. Such a construction was not proper. Post, supra, Wood, supra.
Further questions also arise in the context of the duty owed, if any, by the
Aside from the question of assumption of risk, there remains the question of whether an occupier of land can ever owe a duty greater than the mere duty to warn of defects unknown to the plaintiff. If there is no such duty, then assumption of risk becomes irrelevant.
The general duty of a landowner to an invitee has been described by this court as:
Waterman v. Graham, 228 So.2d 925 (Fla. 2d DCA 1969); see also Standard Jury Instruction 3.5(f). We think this statement of the rule suggests that in some circumstances the duty may extend beyond mere warning.
REVERSED and REMANDED.
GRIMES and SCHEB, JJ., concur.
W. Prosser; Law of Torts 394-95 (4th Ed. 1971).
Likewise, in 2d Restatement of Torts, § 343A, it is said:
Other comments on this problem may be found at the annotation at 35 A.L.R.3d 230 (1971), and 62 Am.Jur.2d, Premises Liability, §§ 72-73.