No. 92-2800.

653 So.2d 1046 (1995)

Gloria KOPF, Appellant, v. CITY OF MIAMI BEACH, Appellee.

District Court of Appeal of Florida, Third District.

Rehearing Denied May 17, 1995.

Attorney(s) appearing for the Case

Bolton & Kirschner and Michael Kirschner, Miami, for appellant.

Laurence Feingold, City Atty. and Debora J. Turner, Asst. City Atty., for appellee.

Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.

SCHWARTZ, Chief Judge.

The plaintiff, who had recently undergone cataract surgery, tripped and fell over a cracked and deteriorated area of a Miami Beach sidewalk. In our view, the record — including a photograph of the area where the fall took place, see Bess v. 17545 Collins Ave., Inc., 98 So.2d 490 (Fla. 1957); Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975) — raises issues of negligence, comparative negligence, and causation which may properly be resolved only by a jury. Williams v. Madden, 588 So.2d 41 (Fla. 1st DCA 1991); Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991); Bryant v. Lucky Stores, Inc., 577 So.2d 1347 (Fla. 2d DCA 1990); Spaulding v. City of Melbourne, 473 So.2d 226 (Fla. 5th DCA 1985); Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla. 3d DCA 1978); City of Miami v. Altman, 128 So.2d 416 (Fla. 3d DCA 1961). Hence, the summary judgment entered for the city below1 is reversed and the cause remanded for trial.

Reversed and remanded.

GERSTEN, J., concurs.

COPE, Judge (dissenting).

I respectfully dissent. The judgment should be affirmed.

The majority opinion begins with the assertion that the plaintiff had recently undergone cataract surgery. The opinion proceeds on the premise that the plaintiff suffered from impaired vision. The City contends that the condition of the sidewalk was open and obvious; the majority rejects this argument, reasoning that there is a disputed issue of material fact on the question of openness and obviousness because the plaintiff is sight-impaired.

The problem with the majority position is that it is contradicted by the record. When asked about her eyesight, plaintiff testified:

Q ... Mrs. Kopf, are you stating that before the accident you had a cataract removed from your left eye? A. Yes. Q. Do you understand — A. And they put on a lens. And I saw very well. Q. Do you recall more or less when this was? A. It was in September. Q. September of what year? A. Of the same year. Q. Of the same year as the accident? A. Yes. Q. September of 1990? A. Yes. Q. Did they ever do that procedure to your right eye? A. Yes. After. Q. How long after? A. About two or three months. Q. So they also removed a cataract and put in a lens for your right eye. A. Yes, I think so. I only know that I could see very well.

(Emphasis added). The plaintiff's testimony was that she saw very well on the day of the accident.1 There is no evidence to the contrary.

Given the plaintiff's own testimony that she could see very well, the question is whether the trial court was correct in granting summary judgment. Plaintiff in this case crossed a city street in the middle of the block. On the far side was a concrete driveway, which was surfaced with a reddish material. A semicircular area of the surfacing material, about the size of a dinner plate, had eroded where the driveway joined the street. This left a shallow depression which exposed the underlying concrete. The parties introduced three photographs which reflect the condition of the sidewalk. The eroded surface was clear for all to see.

The Florida Supreme Court has summarized the law of premises liability applicable here by utilizing the formulation found in Restatement (Second) of Torts § 343A (1965). Casby v. Flint, 520 So.2d 281, 282 (Fla. 1988); Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311-12 (Fla. 1986). In Ashcroft the court said:

The owner or occupier of land has a duty to exercise reasonable care for the protection of invitees. Prosser and Keaton, Law of Torts, § 61 (5th ed. 1984): [I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is sometimes held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. In some jurisdictions, it is also true where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. The jury in such cases may be permitted to find that obviousness, warning or even knowledge is not enough.

Id. (footnotes omitted). Accord Restatement (Second) of Torts § 343A (1965):

Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Ashcroft, 492 So.2d at 1311-12 (some emphasis added; some emphasis omitted).2

The majority suggests in a footnote that Restatement section 343A, relating to known or obvious dangers, does not apply where there is negligent maintenance of premises. To the contrary, the Florida Supreme Court in Ashcroft v. Calder Race Course, Inc., relied on Restatement section 343A in the context of an injury which the court attributed to "negligent maintenance of the facility... ." 492 So.2d at 1312.3 This court has repeatedly relied on Restatement section 343A in cases involving negligent maintenance or similar negligent conduct. See Miranda v. Home Depot, Inc., 604 So.2d 1237, 1238-39 (Fla. 3d DCA 1992) (citing Restatement (Second) of Torts § 343A; alleged negligent placement of ladder); La Villarena, Inc. v. Acosta, 597 So.2d 336, 338 (Fla. 3d DCA 1992) (citing Restatement (Second) of Torts § 343A; wet, slippery floor); Boatwright v. Sunlight Foods, Inc., 592 So.2d 261, 263 (Fla. 3d DCA 1991) (citing Restatement (Second) of Torts § 343A; failure to provide guardrail for construction worker; owner left dangerous condition knowing worker would proceed to encounter it), review denied, 601 So.2d 553 (Fla. 1992); Hogan v. Chupka, 579 So.2d 395, 397 (Fla. 3d DCA 1991) (citing Restatement (Second) of Torts § 343A; negligent maintenance of sidewalk and pavement in front of store exit); Gloris v. Williams Paving Co., 556 So.2d 748, 749 (Fla. 3d DCA 1989) (citing Restatement (Second) of Torts § 343A; pedestrian proceeded into area where sidewalk under construction; factual issue remained regarding whether defendant had negligently obstructed only available pathway); cf. Crawford v. Miller, 542 So.2d 1050 n. 3 (Fla. 3d DCA 1989) (citing Restatement (Second) of Torts § 343A; alleged negligent maintenance of pathway).

Comment g to Restatement section 343A states in part:

[Municipalities] may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid. This is true particularly where a reasonable alternative way is open to the visitor, known or obvious to him, and safe.

(Emphasis added). See id. § 343A, illus. 7, 9; see also Gloris, 556 So.2d at 749.

Here, the condition was open and obvious and the plaintiff observed it. The plaintiff could easily have avoided the small eroded area by walking to either side of it. The entire remainder of the driveway was intact, available, and perfectly serviceable. The summary judgment in favor of the City should be affirmed.


1. The trial judge apparently determined that the condition of the broken sidewalk was so "open and obvious" that liability was precluded as a matter of law. While we find it unnecessary now to decide whether the "open and obvious" doctrine can ever apply in a case such as this, we do note that the principle has previously been found applicable only to alleged defects of original design or construction which involve conditions which are said to be "so common and ordinarily innocuous," Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. 5th DCA 1990), that they do not involve any breach of duty — that is, any negligence — on the part of the defendant landowner in creating them in the first place. Casby v. Flint, 520 So.2d 281, 282 (Fla. 1988) ("[T]he focus is not on this petitioner's failure to observe [the step], but on the absence of any duty on the part of the homeowner to warn of possible changes in floor levels."); see Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983); Hoag v. Moeller, 82 So.2d 138 (Fla. 1955); Circle K, 556 So.2d at 1207; McAllister v. Robbins, 542 So.2d 470 (Fla. 1st DCA 1989); Crawford v. Miller, 542 So.2d 1050 (Fla. 3d DCA 1989); K.G. v. Winter Springs Community Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987); Prager v. Marks Bros. Co., 483 So.2d 881 (Fla. 3d DCA 1986); cf. also Gloris v. Williams Paving Co., 556 So.2d 748 (Fla. 3d DCA 1989) (paving contractor not liable for properly barricaded condition caused by repairs to sidewalk). In a broken or deteriorated sidewalk (or floor) case, however, in which, a priori, the landowner is negligent in failing to maintain the already installed surface of his property, it would be indeed incongruous — and certainly directly contrary to the comparative negligence doctrine — to insulate him from liability for an accident caused at least in part by that negligence merely because the defective condition was there to be seen. See Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991); see also Bryant v. Lucky Stores, Inc., 577 So.2d 1347 (Fla. 2d DCA 1990); Spaulding v. City of Melbourne, 473 So.2d 226 (Fla. 5th DCA 1985). See generally Kendrick v. Ed's Beach Serv., Inc., 577 So.2d 936 (Fla. 1991); Lee v. Treasure Island Marina, Inc., 620 So.2d 1295 (Fla. 1st DCA 1993); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980), review denied, 389 So.2d 1113 (Fla. 1980); Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989 (Fla. 2d DCA 1980). It should also be noted that, if the defective condition were not plainly visible, the defendant would then invoke the rule, as the city attempts to do here, that the defect was so in significant as to render the sidewalk not dangerous at all. See City of Tallahassee v. Coles, 148 Fla. 606, 610-11, 4 So.2d 874, 876 (1941). In essence, then, an acceptance of the appellee's position in all its implications would mean the end of a municipality's responsibilities for maintaining its sidewalks in this state.
1. The accident occurred in December, 1990.
2. The Restatement rule is subject to a number of important qualifications and limitations. See Restatement (Second) of Torts § 343A, cmt. f and g, and illus. thereto. Comment b explains: b. The word "known" denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. "Obvious" means that both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.

(Emphasis added).

3. Restatement section 343A explicitly covers negligent maintenance, as well as negligent design. Restatement (Second) of Torts § 343A, illus. 4 (rainspout negligently left across footpath by store exit); 5 (slippery waxed stairway); 6-7 (baggage stacked so as to obstruct exit path); 8 (snow and ice negligently allowed to accumulate across pathway).


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