Attorney(s) appearing for the Case
Freshman, Freshman & Traitz and Steven H. Rothstein, Miami, for appellants.
Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy E. Gallagher, Miami, for appellees.
Before SCHWARTZ, C.J., and BARKDULL and COPE, JJ.
District Court of Appeal of Florida, Third District.
Appellants, who were plaintiffs below, appeal a summary judgment against them. We affirm.
Appellant Gloris Crawford was a housekeeper for appellees. While appellant was so employed, appellees installed Malibu lights in the shrubbery along their front sidewalk.1 Appellant was informed of the installation and had seen them illuminated at night. A month after the installation, appellant tripped and fell on the walkway. Appellant and her husband brought suit, contending that the top of the light protruded over the edge of the sidewalk, and that appellant had tripped over it. Appellant contended that an overgrowth of shrubbery just above the light obscured the light's location and created an unreasonably dangerous condition. The trial judge entered summary judgment for appellees.
As was held in Storr v. Proctor, 490 So.2d 135, 136 (Fla. 3d DCA), review denied, 500 So.2d 546 (Fla. 1986):
The duty of the landowner to a business invitee is to maintain the premises in a reasonably safe condition and to warn the invitee of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care could not be known to him. Hickory House v. Brown, 77 So.2d 249 (Fla. 1955); Messner v. Webb's City, 62 So.2d 66 (Fla. 1952).
An owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own sense[s], and is not required to give the invitee notice or warning of an obvious danger. Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978).
In the present case there is no dispute that appellant was aware of the existence of the lights. She traversed the walkway daily, and the lights and shrubbery were in place for the month preceding the accident.2 The mere occurrence of an accident does not, without more, give rise to an inference of negligence. Cassel v. Price, 396 So.2d 258, 264 (Fla. 1st DCA), review denied, 407 So.2d 1102 (Fla. 1981). Based on the undisputed facts, appellees were entitled to summary judgment as a matter of law.3
BARKDULL and COPE, JJ., concur.
SCHWARTZ, Chief Judge (dissenting).
There is no real dispute that reasonable persons could find that the Malibu light presented a potential danger to persons on the Millers' sidewalk. Since this is true, the plaintiff's alleged previous knowledge of its existence is pertinent only to the extent, if any, of her comparative negligence in tripping over the shrubbery-obscured light in the course of her work. It does not as a matter of law negate the existence of liability vel non for maintaining a defective condition in the first place. Taylor v. Tolbert Enters., 439 So.2d 991 (Fla. 1st DCA 1983); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980), review denied, 389 So.2d 1113 (Fla. 1980); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980). I would reverse for a jury to make these decisions.