SUSAN C. BUCKLEW, District Judge.
This cause comes before the Court on Plaintiffs' Motion for partial summary judgment (Doc. No. 46) and Defendant's Motion for final summary judgment (Doc. No. 44). Each party filed a Response in opposition to the opposing party's Motion. (Docs. No. 50, 52.)
Plaintiffs Frederick C. Arnoul ("F. Arnoul") and Annette Arnoul ("A. Arnoul") have filed suit against Defendant Busch Entertainment Corporation, claiming that (1) Defendant failed to maintain the Busch Gardens amusement park in a reasonably safe condition, causing Plaintiff F. Arnoul to be injured while on the premises, and (2) this injury resulted in a loss of consortium to Plaintiff A. Arnoul. (Compl.)
Plaintiffs move for partial summary judgment that (1) Defendant's duty to maintain the premises of the amusement park in a safe condition was non-delegable, and (2) Defendant cannot apportion any part of Plaintiffs' damages to Plaintiff F. Arnoul's treating healthcare providers. (Doc. No. 46.) Defendants respond that Plaintiffs present an evidentiary issue, rather than a proper issue for summary judgment. (Doc. No. 52.)
Defendant moves for full summary judgment on the ground that Plaintiffs' factual allegations, if taken as true, do not demonstrate that the amusement park was unreasonably dangerous or that Defendant had a duty to warn of any alleged danger. (Doc. No. 44.)
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor.
On December 26, 2006, Plaintiff F. Arnoul was visiting Busch Gardens with his son and granddaughter. (Compl., p. 2.) He was walking when he spotted a low-hanging tree branch that extended over the pedestrian pathway, approximately twelve feet in front of him. (Pl. F. Arnoul's depo., pp. 37-38;
Plaintiffs claim that Defendant had a duty to clear the branch from over the crowded pedestrian walkway, because the crowds, the park's visual distractions, and the small children often accompanying park visitors, make such obstructions unreasonably dangerous. (Compl.) Defendant claims that because the tree branch was an open and obvious danger, it had no duty to remove it or to warn visitors of its presence. (Doc. No. 44.)
A landowner owes a duty to business invitees to (1) "use reasonable care in maintaining the landowner's premises in a reasonably safe condition," and (2) to warn of "concealed perils that are or should be known to the landowner" but that would not be discovered by the invitee through the use of reasonable care.
Maintaining the Premises
A landowner has a duty to make his property reasonably safe for the business invitees that he solicits. This duty includes mitigating some potential dangers by repairing broken stairway handrails,
Thus, only when a landowner should anticipate that people will choose to negotiate obvious hazards and thereby injure themselves, despite their awareness of the danger, is the landowner responsible for injury resulting from an obvious condition. Aaron, 908 So. 2d at 576-77. Such anticipation should occur, for example, when avoiding the hazard would be impossible or highly inconvenient.
However, that an accident with an obviously dangerous condition occurs on a landowner's premises does not in itself prove the landowner's negligence.
Here, the condition cited by Plaintiffs is a tree branch extending approximately five and a half feet above the ground, stretched over a busy pedestrian sidewalk. Plaintiffs claim that the branch constitutes an unreasonably dangerous condition, because it spreads over a designated walkway where the amount of pedestrian activity and the flashy displays and award-winning landscaping—designed to lure pedestrians' eyes away from the path in front of them—make it likely that pedestrians will not notice the branch and so will walk into it, the way Plaintiff F. Arnoul did. The argument fails for two reasons.
Plaintiffs' argument is first refuted by Plaintiff F. Arnoul's own admission that he saw the branch when he was twelve feet away from it.
The second reason the Court rejects Plaintiffs' argument is that—while the law does look to the entirety of the circumstances surrounding an accident, including the likelihood of distraction by an invitee—to adopt a rule that any crowded pathway flanked by picturesque or busy surroundings must be entirely devoid of physical obstruction would be a bold step onto a slippery slope. Plaintiffs have cited no reason why such a rule would stop after finding negligence in the low-hanging branch and would not force Defendant to remove the tree trunk, planters, benches, or garbage cans placed within the same pedestrian area (
Some degree of risk can be anticipated no matter the environment. The law does not find fault with men for not futilely endeavoring to change this immutable fact, but recognizes that allowing some degree of risk will always be reasonable. Plaintiffs have presented no evidence tending to show that the branch posed any more than this type of obvious, easily avoidable, reasonable danger.
Warning of Hidden Perils
Landowner's have a duty to warn invitees of known concealed perils that would not be discovered by invitees through the use of due care.
Because the injuries incurred by Plaintiffs were caused by Plaintiff F. Arnoul's failure to take precautions against a reasonable, open, and obvious potential danger, the Court finds that Defendant is not liable for Plaintiffs' injuries or the resulting loss of consortium.
Accordingly, it is