          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4862
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ELIZABETH CASASANTA,

    Appellant,

    v.

SAILSHARE 296 LLC, and
WILSON MINGER AGENCY, INC.,

    Appellees.
                  _____________________________

On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

                           April 16, 2019

                 ON MOTION FOR WRITTEN OPINION

PER CURIAM.

    We have before us Appellant’s motion for written opinion. We
grant Appellant’s motion, withdraw our former opinion from
December 27, 2018, and substitute this opinion in its place.

                            Background

     Appellant challenges final summary judgment orders granted
in favor of Appellees, arguing that the exculpatory clause in a lease
agreement was ambiguous and therefore unenforceable, and void
as a matter of public policy.

     In 2015, Appellant and her husband entered into a residential
lease agreement for a single-family home. Appellant inspected the
property and agreed to take it in an “as-is” condition. While living
on the property, Appellant brought a negligence action against
Appellee Sailshare 296 LLC, the fee simple title owner of the
property, and against Appellee Wilson Minger Agency, Inc., the
property manager, alleging that a picket fence on the property
collapsed, causing injury to Appellant.

     In separate motions for summary judgment, both Appellees
argued that the exculpatory clause in the lease agreement released
them from liability for Appellant’s injuries. The exculpatory clause
at issue here reads:

    The Lessee(s) acknowledge and agree that they have
    independently examined and inspected the premises and
    are fully satisfied with the condition of the cleanliness
    and repair. The Lessee(s) agree that they waive any
    claims, rights or actions against Landlord, Agent or other
    person or entity for any alleged failure to disclose any
    defects in the premises. Lessee(s) further stipulate that
    they are leasing the property in “As-Is” condition and that
    no representations as to the present condition or future
    repair of the premises have been made except for those
    agreed upon in writing either made part of this
    agreement or by separate instrument.

   The trial court granted final summary judgment in favor of
Appellees, finding that the exculpatory language clearly and
unambiguously relieved them of any liability for negligence.
Appellant timely appealed the trial court’s orders.

                             Analysis

     The enforceability of a pre-injury exculpatory clause that does
not contain express language releasing a part of liability for
negligence is reviewed de novo. Sanislo v. Give Kids the World,
Inc., 157 So. 3d 256, 260 (Fla. 2015). In Sanislo, the supreme court
held that “the absence of the terms ‘negligence’ or ‘negligent acts’
in an exculpatory clause does not render [an] agreement per se
ineffective to bar a negligence action.” Id. at 271.

     The lease agreement in this case supports the trial court’s
decision to grant summary judgment. Appellant and her husband

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agreed upfront that they had independently examined and
inspected the premises. They raised no complaints about the short,
decorative picket fence out front. According to the lease, “no
damage existed . . . [and the lessees were] fully satisfied with the
[property’s] condition of . . . repair.” There was no indication, for
instance, of rotting wood, missing slats, or any improper leaning
or weakness with the fence. Having acknowledged no problems,
lessees rented the property “As-Is” and broadly “waive[d] any
claims, rights or actions against the Landlord, Agent or other
person or entity for any alleged failure to disclose any defects in
the premises.” With these terms, we conclude that Appellant
waived her claim against Appellees for failing to safely maintain,
inspect, and repair a “dangerous” picket fence. See Sanislo, 157 So.
3d at 271.

     In addition, Appellant’s injury did not arise from a defect or a
dangerous condition. The fence’s modest features were “as
apparent to the tenant as they were to the landlord.” Menendez v.
Palms W. Condo. Ass’n, 736 So. 2d 58, 62 (Fla. 1st DCA 1999).
Rather, the accident and injury arose from Appellant’s poor
decision to use an insubstantial decorative fence as a seat. The
three-foot fence was made with pointy, dog-eared pickets
protruding from the top and was obviously not meant to support
her weight. See id. at 61 (limiting the duty to correct defects or
dangerous conditions to matters involving “inherently unsafe or
dangerous conditions that are not readily apparent to the tenant”).

    AFFIRMED.

ROBERTS and OSTERHAUS, JJ., concur; B.L. THOMAS, C.J., concurs
in result only with opinion.



                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


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B.L. THOMAS, C.J., concurring in result only.

    I disagree with the majority’s holding that the exculpatory
clause was enforceable, but I concur with the decision to affirm
because the picket fence was not a dangerous defective condition
and therefore summary judgment was correctly granted to
Appellees.

                     The Exculpatory Clause

     For an exculpatory clause to be considered unambiguous and
therefore enforceable, “the wording must be so clear and
understandable that an ordinary and knowledgeable party will
know what he is contracting away.” Southworth & McGill, P.A. v.
Southern Bell Tel. & Tel. Co., 580 So. 2d 628, 634 (Fla. 1st DCA
1991). In Sanislo v. Give Kids the World, Inc., the supreme court
held that “the absence of the terms ‘negligence’ or ‘negligent acts’
in an exculpatory clause does not render [an] agreement per se
ineffective to bar a negligence action.” 157 So. 3d at 271. In
Sanislo, however, although the clause did not use the word
negligence, it expressly waived “any and all claims and causes of
action of every kind arising from any and all physical or emotional
injuries and/or damages . . . and physical injury of any kind.” Id.
at 261. The supreme court held that this clause was unambiguous
and therefore enforceable because it had no other reasonable
meaning than to bar negligence actions. Id. at 271.

     By contrast, the clause at issue here does not clearly state
what suits are purportedly waived, and it makes no mention of
injuries caused by negligence or of injuries at all. A person of
ordinary intelligence reading this clause might believe that, by
agreeing to “waive any claims, rights or actions against Landlord,
Agent or other person or entity for any alleged failure to disclose
any defects in the premises[,]” he or she was merely waiving
potential breach of contract or warranty claims for property
defects. Such an interpretation is even more reasonable given that
the clause was written into the section of the lease describing the
lessee’s obligations for damage caused to the premises; the clause
speaks of “cleanliness and repair” and contrasts responsibility for
damage to the property with damage incurred by “ordinary wear
and tear.” A lessee could therefore reasonably infer that this

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exculpatory clause governs his or her financial responsibility for
repairs, not personal injury lawsuits.

     I disagree with the majority’s holding that the clause at issue
is unambiguous. I would hold that the exculpatory clause could
not serve as the basis for a final summary judgment.

                  Dangerous Defective Condition

    In Menendez v. The Palms West Condominium Ass’n, Inc., this
Court held that the absence of a doorscope in an apartment door
was not a defect or a dangerous condition, and that the features of
the door were “as apparent to the tenant as they were to the
landlord.” 736 So. 2d 58, 62 (Fla. 1st DCA 1999). Because there
was no defect, the defendant had no legal duty to correct any
defect. Id. Although this Court acknowledged a landlord’s duty to
protect a tenant under section 83.51, Florida Statutes, the
Residential Landlord and Tenant Act, we held that the Act did not
impose a duty to install doorscopes. Id.

     Similarly, in Fitzgerald v. Cestari, a young child was injured
when she ran through a sliding glass door. 569 So. 2d 1258, 1258
(Fla. 1990). The supreme court held that the landlord of the
property was “relieved from liability for failing to ascertain that
the sliding glass door was not made of safety glass as required by
the applicable building code.” Id. at 1260. The supreme court
approved the summary judgment in favor of the landlord, holding:

    An ordinary sliding glass door is not the type of
    “dangerous condition” which a landlord is in a better
    position than the tenant to guard against. The presence
    of a sliding glass door on the leased premises was clearly
    apparent to the lessees who, upon taking possession,
    controlled the manner in which it was used.

Id. at 1261.

     Here, the picket fence was clearly apparent and was not the
type of dangerous condition which the landlord was in a better
position than the tenant to guard against. Appellant controlled
the manner in which the fence was used, see Fitzgerald, 569 So. 2d
at 1261, and it is a matter of common understanding that a picket

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fence is not designed to support the full weight of a person. See
Youngblood v. Pasadena at Pembroke Lakes South, Ltd., 882 So.
2d 1097, 1098 (Fla. 4th DCA 2004) (affirming summary judgment
because, as a matter of common understanding, a towel rack was
not designed to support the weight of a person). Because the picket
fence did not constitute a dangerous defective condition, I would
affirm the trial court’s orders granting summary judgment, under
the tipsy coachman doctrine. See Gladden v. Fisher Thomas, Inc.,
232 So. 3d 1146, 1147 n.1 (Fla. 1st DCA 2017) (“The ‘tipsy
coachman’ doctrine allows an appellate court to affirm a trial court
that ‘reaches the right result, but for the wrong reasons’ if there is
‘any basis which would support the judgment in the record.’”)
(quoting Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)).

     Appellee Sailshare did not argue absence of defect in its
summary judgment motion. See Agudo, Pineiro & Kates, P.A. v.
Harbert Constr. Co., 476 So. 2d 1311, 1315 n.3 (Fla. 3d DCA 1985)
(“the ‘right for the wrong reason’ appellate maxim does not apply
in summary judgment proceedings where the issue was never
raised in the motion for summary judgment.”). However, at the
time of Appellee Sailshare’s summary judgment hearing, Appellee
Sailshare had adopted Appellee Wilson Minger Agency’s lack-of-
defect argument, and the legal outcome of the issue would apply
equally to both Appellees. See Bernard Marko & Assocs., Inc. v.
Steele, 230 So. 2d 42, 44 (Fla. 3d DCA 1970) (holding that
procedural issues “in no way prejudiced” the plaintiff, “because the
defendants occupied the same legal position relative to the grounds
of the motion for summary judgment”). Thus, because the trial
court could properly have granted summary judgment based on
the lack of any dangerous or defective condition, I would affirm the
orders below on that basis.

                  _____________________________


Jonathan D. Simpson of Simpson Law Firm, Fort Walton Beach,
for Appellant.

Richard S. Johnson, Niceville, for Appellee Sailshare 296 LLC.



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Lucian B. Hodges and Richard A. Fillmore of Luther, Collier,
Hodges & Cash, L.L.P., Pensacola, for Appellee Wilson Minger
Agency, Inc.




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