Opinion
Case No. 6:20-cv-1542-CEM-LHP
2022-03-15
Pauline ELLIOTT, Plaintiff, v. MAGIC BURGERS, LLC, Defendant.
Jason Phillip Dollard, Schwed Law, Palm Beach Gardens, FL, Paul Robert Shalhoub, Schwed, Adams, Sobel & McGinley, PA, Palm Beach Gardens, FL, for Plaintiff. Lucie Ailene Robinson, Pintard Robinson, PLLC, Orlando, FL, Abbye Erika Alexander, Kaufman Dolowich & Voluck LLP, Orlando, FL, Jesse Daniel Drawas, Kaufman Dolowich & Voluck Kaufman Dolowich & Voluck, Fort Lauderdale, FL, for Defendant.
Jason Phillip Dollard, Schwed Law, Palm Beach Gardens, FL, Paul Robert Shalhoub, Schwed, Adams, Sobel & McGinley, PA, Palm Beach Gardens, FL, for Plaintiff.
Lucie Ailene Robinson, Pintard Robinson, PLLC, Orlando, FL, Abbye Erika Alexander, Kaufman Dolowich & Voluck LLP, Orlando, FL, Jesse Daniel Drawas, Kaufman Dolowich & Voluck Kaufman Dolowich & Voluck, Fort Lauderdale, FL, for Defendant.
ORDER
CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment ("Motion," Doc. 21), to which Plaintiff filed a Response (Doc. 22) and Defendant filed a Reply (Doc. 23). As set forth below, the Motion will be denied.
I. BACKGROUND
Defendant operates a Burger King. (Am. Compl., Doc. 1-2, at 2; Answer, Doc. 3, at 1). On August 2, 2018, Plaintiff was going to Defendant's Burger King to get something to eat before going to work. (Pl. Dep., Doc. 20-1, at 67). She had done this several times per week for the preceding seven months. (Id. at 53–54). On the day in question, it was around 8:30 or 9:00 at night, and Plaintiff was crossing the drive through to get to the building, which is the path she generally took, when she tripped over a raised crack in the concrete and fell. (Id. at 41, 53, 57, 61, 63–64). Plaintiff indicated that there was poor lighting and that she did not see the raised concrete before she fell, nor had she seen it previously. (Id. at 63–65).
Because Plaintiff's Deposition is filed in a four-to-a-page format, pinpoint citations are to the original page number. For all other documents cited herein, pinpoint citations are to the electronic filing page number.
As a result of this incident, Plaintiff filed suit, asserting a claim of negligence against Defendant. (See generally Doc. 1-2). Defendant has now moved for summary judgment.
II. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it may "affect the outcome of the suit under the governing law." Id.
"The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1313–14 (11th Cir. 2007). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a "properly supported motion for summary judgment," the nonmoving party "must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc. , 131 F.3d 995, 999 (11th Cir. 1997) (citing Anderson , 477 U.S. at 248–49, 106 S.Ct. 2505 (1986) ); see also LaRoche v. Denny's, Inc. , 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear ... that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. "[T]he proper inquiry on summary judgment is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ " Stitzel v. N.Y. Life Ins. Co. , 361 F. App'x 20, 22 (11th Cir. 2009) (quoting Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ). Put another way, a motion for summary judgment should be denied only "[i]f reasonable minds could differ on the inferences arising from undisputed [material] facts." Pioch v. IBEX Eng'g Servs. , 825 F.3d 1264, 1267 (11th Cir. 2016) (quoting Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997) ).
III. ANALYSIS
To prevail on a claim for negligence, a plaintiff must establish that the defendant (1) "owed a ‘duty, or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks"; (2) "that the defendant failed to conform to that duty"; (3) "a reasonably close causal connection between the nonconforming conduct and the resulting injury to the [plaintiff]"; and (4) "some actual harm" to the plaintiff. Am. Optical Corp. v. Spiewak , 73 So. 3d 120, 127 (Fla. 2011) (quotation and emphasis omitted). All of Defendant's arguments assert that it did not breach any duty owed to Plaintiff.
A. Plaintiff's Status and Defendant's Duty of Care
Florida "common law assigns landowners varying duties of care to entrants depending on the terms of entry." Fisher v. United States , 995 F.3d 1266, 1270 (11th Cir. 2021) (citing Post v. Lunney , 261 So. 2d 146, 147 (Fla. 1972) ). "If an individual enters without permission, he is owed the lowest duty of care as a ‘trespasser.’ If he enters with permission, he is owed an intermediate duty of care as a ‘licensee.’ And if he enters pursuant to an invitation, he is owed the highest duty of care as an ‘invitee.’ " Id. "An invitee is a visitor on the premises by invitation, either express or reasonably implied, of the owner." Arp v. Waterway E. Ass'n, Inc. , 217 So. 3d 117, 120 (Fla. 4th DCA 2017) (citing Wood v. Camp , 284 So. 2d 691, 695 (Fla. 1973) ). "An ‘invitation’ means that ‘the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.’ " Id. (quoting Fla. Stat. § 768.075(3)(a) ). A licensee "is a person who chooses ‘to come upon the premises solely for [his or her] own convenience without invitation either expressed or reasonably implied under the circumstances.’ " Id. (quoting Wood , 284 So. 2d at 695 ). Finally, a trespasser is "a person who enters real property without invitation." Fla. Stat. § 768.075(3)(a) 2, 3. "A plaintiff's status on property may be determined as a matter of law in some cases, but in others it may present a factual question for the jury." Arp , 217 So. 3d at 121.
Sometimes this class of person is referred to an "uninvited licensee." Arp , 217 So. 3d at 120 ; Bishop v. First Nat. Bank of Fla., Inc. , 609 So. 2d 722, 725 (Fla. 5th DCA 1992). For purposes of this Order, any distinction between an uninvited licensee and a licensee is immaterial.
Trespassers can be "discovered" or "undiscovered," Fla. Stat. § 768.075(3)(a) 2, 3, but for purposes of this Order, the distinction is immaterial.
The parties do not dispute that, generally, restaurant patrons are invitees. But, Defendant argues that it is entitled to summary judgment because while Plaintiff may have started out as an invitee, she lost that status and became either a trespasser or a licensee when she walked across the drive through, which Defendant maintains was not a permissible place for pedestrians. As such, Defendant argues that Plaintiff has not shown that it breached the lower duties of care associated with trespassers or licensees.
Defendant cites cases for the proposition that "[a]n invitee may lose h[er] status and become a licensee or trespasser by going to a part of the premises that is beyond the scope of his or her invitation." Byers v. Radiant Group, L.L.C. , 966 So. 2d 506, 509 (Fla. 2d DCA 2007). But, there is, at a minimum, an issue of fact as to whether Plaintiff was in a part of the premises that was beyond the scope of her invitation. Specifically, Plaintiff provided evidence that there was a parking lot on one side of the drive-through lane and brick-paved pathways to facilitate foot traffic from the parking lot, across the medians and the drive-through lane, in order to get to the building. (Photographs, Doc. 22-3, at 1–2). Moreover, the facts of this case are far different than the facts of the case cited by Defendant, where a plaintiff went into an employee-only kitchen, which was marked with a sign stating, "staff only." Denniser v. Columbia Hosp. Corp. of S. Broward , 162 So. 3d 26, 28 (Fla. 4th DCA 2014). Defendant has not established that it is entitled to summary judgment on this basis.
Defendant asserts that these photographs cannot be considered but provides no legal authority for such a proposition. (Doc. 25 at 2–3). First, Defendant's argument that "neither Plaintiff nor any other witness has testified about the pavers" is incorrect. (See Doc. 20-1 at 74). Additionally, Defendant takes issue with Plaintiff's characterization of these brick-paved sections as evidence that this was a place where pedestrians were permitted to walk. However, the interpretation and weighing of the evidence is for the jury; it is not a basis for excluding evidence. The Court will consider the photographs.
B. Failure to Warn
Next, Defendant argues that Plaintiff's knowledge of the dangerous condition at issue—the raised portion of the concrete—was superior to that of Defendant. Defendant cites case law for the proposition that where a plaintiff's knowledge of a dangerous condition is equal to or greater than that of a defendant, the defendant has no duty to warn. (Doc. 21 at 10 (citing Brookie v. Winn-Dixie Stores, Inc. , 213 So. 3d 1129, 1132 (Fla. 1st DCA 2017) ; Burton v. MDC PGA Plaza Corp. , 78 So. 3d 732, 734 (Fla. 4th DCA 2012) ; Miller v. Wallace , 591 So. 2d 971, 973 (Fla. 5th DCA 1991) ; Stewart v. Boho, Inc. , 493 So. 2d 95, 96 (Fla. 4th DCA 1986) ; Margrabe v. Graves , 97 So. 2d 498, 500 (Fla. 1st DCA 1957) )). The through line of all of these cases is that the plaintiff had actual knowledge of the dangerous condition. Brookie , 213 So. 3d at 1131 ("Appellant admitted that he saw the empty pallet when he exited the store and took four more steps before tripping over it." (emphasis omitted)); Burton , 78 So. 3d at 734 ("Here, the plaintiff conceded that she knew about the pothole before she fell into it and that her knowledge discharged the defendants of their duty to warn her of the dangerous condition."); Miller , 591 So. 2d at 973 ("The uncontradicted record in this case establishes that the defendant was unaware of the plaintiff's practice of driving through the trees to feed the cattle, and that the plaintiff himself was fully aware of the danger of driving through the thorny branches. The plaintiff's knowledge was, if anything, superior to that of the defendant, and therefore plaintiff could not recover from defendant based upon a theory of failure to warn."); Stewart , 493 So. 2d at 96 ("Where an invitee's knowledge of a dangerous condition will adequately protect him from harm, an owner's duty with regard to the condition is limited to giving a proper warning, where required. The invitee can be expected to protect himself against such risks."); Margrabe , 97 So. 2d at 500 ("[T]here is no[ ] duty to warn or give notice of a dangerous condition to persons already possessed of knowledge of such dangerous condition.").
Significantly, in her deposition, Plaintiff testified that she was unaware of the raised crack in the concrete and that she had never seen it before. (Doc. 20-1 at 63–65). Plaintiff also stated that the lighting in the area was poor, making the raised area difficult to see. (Id. ). Accordingly, there is at least an issue of fact as to whether Plaintiff had knowledge of the dangerous condition, and Defendant is not entitled to summary judgment on this basis.
C. Duty to Maintain the Premises
Finally, Defendant argues that it is entitled to summary judgment on Plaintiff's claim that Defendant failed to maintain the premises in a reasonably safe condition because Plaintiff avoided the raised concrete on the many times she previously traversed the same area. Defendant relies on Brookie , which states that "where the condition may be dangerous, but is ‘so open and obvious that an invitee may be reasonably expected to discover [it] to protect himself,’ " it "will not constitute a breach of a duty to maintain premises in a reasonably safe condition" "unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness." 213 So. 3d at 1132–33 (quoting Dampier v. Morgan Tire & Auto, LLC , 82 So. 3d 204, 206 (Fla. 5th DCA 2012) ).
The condition at issue in Brookie was "an empty pallet ... sitting on [a] pallet jack's prongs to the right of the exit" of a grocery store. Id. at 1130. The pallet was in this place because someone was delivering a shipment of beer, and next to the empty pallet was a second pallet where "beer was stacked approximately five feet high." Id. The Brookie plaintiff was making multiple trips into and out of the grocery store, saw the empty pallet prior to and at the time of the incident, and still tripped over the pallet on his third exit from the store. Id. at 1130, 1134.
The Brookie Court determined that there was no breach of the defendant's duty to maintain the premises "because [the plaintiff] saw the allegedly dangerous condition, which was so open and obvious, that he could be ‘reasonably expected to discover [the pallet] and to protect himself.’ " Id. at 1134 (quoting Denson v. SM-Planters Walk Apartments , 183 So. 3d 1048, 1051 (Fla. 1st DCA 2015) ). The Brookie Court further explained "that a ‘proprietor has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.’ " Id. (quoting Earley v. Morrison Cafeteria Co. of Orlando , 61 So. 2d 477, 478 (Fla. 1952) ). Therefore, because the plaintiff in Brookie "saw the purportedly dangerous condition but failed in the ‘ordinary use of his own senses’ to avoid the observed condition," there was no breach of the defendant's duty. Id.
Defendant here asserts that this case is akin to Brookie because the Plaintiff admitted that she walked across the same area several times a week for seven months, and therefore, according to Defendant, Plaintiff was reasonably expected to discover the raised concrete and avoid it. There are two problems with Defendant's argument. First, as noted above, Plaintiff testified that the lighting in the area was poor and that she had never noticed the raised concrete, which at least creates an issue of fact as to whether it was open and obvious. This in and of itself is a sufficient basis to deny Defendant summary judgment on this issue. Second, Brookie focuses on the fact that the plaintiff had actual knowledge of the pallet and failed to use his own senses to avoid the observed condition. Id. ; see also Arnoul v. Busch Ent. Corp. , No. 8:07-cv-1490T-24-TGW, 2008 WL 4525106, at *1, 3 (M.D. Fla. Oct. 6, 2008) (finding no breach of the duty to maintain premises where the plaintiff "spotted a low-hanging tree branch that extended over the pedestrian pathway, approximately twelve feet in front of him," and failed to use his "common sense to avoid obvious potential injury—by not walking into trees"). Again, as discussed above, Plaintiff testified that she did not see the raised concrete in the walkway, and therefore, it is not apparent that Plaintiff could have easily used her own senses to avoid it. Defendant's motion for summary judgment is due to be denied.
IV. CONCLUSION
In accordance with the foregoing, it is ORDERED and ADJUDGED that Defendant's Motion for Summary Judgment (Doc. 21) is DENIED .
DONE and ORDERED in Orlando, Florida on March 15, 2022.