This case requires a determination of the nature and extent of the duty owed to an invitee by an occupier of premises; in particular, whether or not that duty is ever greater than the mere duty to warn of dangers unknown to the invitee.
In the instant case, the plaintiff stepped in, and slipped upon, a foreign substance (which appeared to be vomit) on the steps of a public building owned and operated by the defendant, Volusia County. From the evidence adduced at trial, the plaintiff had actual knowledge of the presence of the substance; the defendant was chargeable with no more than constructive knowledge of the condition.
A property owner or occupier owes two duties to an invitee: "he must keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware." Post v. Lunney, 261 So.2d 146, 147 (Fla. 1972). In Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 969-970 (Fla. 1977), the dual nature of a landowner's or occupier's duties to an invitee was more clearly expressed in dictum by Justice Sundburg in a dissent in which Justices England and Overton concurred:
The defendant, at the conclusion of the plaintiff's case, convinced the trial court that it was entitled to a directed verdict on the basis of the obvious danger principle set forth in Vermont Mutual Ins. Co. v. Conway, 358 So.2d 123 (Fla.1st DCA 1978) that a duty to warn does not arise if the invitee has knowledge of the danger equal or superior to that of the occupier. We agree with that statement of the law in Vermont Mutual. But we do not agree that it is dispositive of the instant case. The fallacy is in the premise that the discharge of the occupier's duty to warn by the plaintiff's actual knowledge necessarily discharges the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive knowledge.
The issue with which we are confronted was addressed by the Second District Court of Appeal in Heath v. First Baptist Church, 341 So.2d 265 (Fla.2d DCA 1977), cert. denied, 348 So.2d 946 (Fla. 1977). The plaintiff therein tripped over a rise in the floor, which she admittedly had tripped over three or four times in the past. In reversing a summary judgment for the defense, the appellate court discussed the dual duties of a landowner:
3. In discussing this issue, Prosser writes:
Likewise, in 2d Restatement of Torts, § 343A, it is said:
The Vermont Mutual case, which apparently weighed heavily in the granting of the directed verdict, is distinguishable. In that case, the defendant homeowner had hosed down a paved driveway. The plaintiff housepainter placed his ladder on the wet surface, knowing it was wet, just before he fell. The appellate court, in reversing the denial of a directed verdict for the homeowner, stated that her knowledge was no greater than that of the housepainter. As we see it, the defendant in that case was not chargeable with any knowledge, actual or constructive, of a danger. It was not foreseeable that the housepainter would place his ladder on the wet driveway and fall — hence she was under no duty to warn or to correct a danger. The wet driveway was not a danger, as such. There was no way for her to have foreseen any danger or to correct it. In the instant case, there were facts from which a jury could conclude that there was a duty occasioned by foreseeability that someone would fall on the slippery steps and there was a reasonable opportunity to have corrected this danger before the fall occurred.
Here, it is clear that the plaintiff was negligent. But was there any negligence — i.e., any breach of a duty causally related to the plaintiff's injury — by the defendant which a jury should have been allowed to consider for comparative purposes? In order to say no, it is necessary to say, as a matter of law, that defendant's allowing a large puddle of vomit to remain for approximately six hours on steps used by the public was causally unrelated to the plaintiff's fall at the later time. That is not the law under the doctrine of comparative negligence. Hoffman v. Jones, supra.
Accordingly, the judgment for the defendant is reversed and this cause is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
UPCHURCH and SHARP, JJ., concur.