         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                         NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
                                         DISPOSITION THEREOF IF FILED

JANET TRAINOR,

             Appellant,

 v.                                           Case No. 5D15-4536

PNC BANK, NATIONAL ASSOCIATION,
KIRBY BROS. CONSTRUCTION, INC.
AND LEE WILLIAMS & ASSOCIATES, INC.,

           Appellees.
_____________________________________/

Opinion filed March 3, 2017

Appeal from the Circuit Court
for Volusia County,
William A. Parsons, Judge.

David M. Russell, of Pappas & Russell,
P.A., Daytona Beach, for Appellant.

T’anjuiming A. Marx and Robert J.
Rubin, of Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A., Maitland,
for Kirby Bros. Construction, Inc.,
Appellee.

Daniel S. Liebowitz and Kelley
Kronenberg, of the Law Firm of Kelly
Kronenberg, Orlando, for PNC Bank,
National Association, Appellee.

Derek J. Angell and Ryan P. Scordato,
of O'Connor & O'Connor, LLC, Winter
Park, for Lee Williams & Associates,
Inc., Appellee.

JACOBUS, B.W., Senior Judge.
       Janet Trainor appeals final summary judgments granted to PNC Bank, National

Association (PNC), Kirby Brothers Construction, Inc. (Kirby) and Lee Williams &

Associates, Inc. (Williams), collectively Appellees, in her action for damages for the

alleged injuries she suffered when she stepped into a pothole in a parking lot serving

customers of PNC Bank. We reverse after concluding that the obvious danger doctrine

does not discharge an owner’s or possessor’s duty to maintain its premises in a

reasonably safe condition, and that material issues of fact remain precluding summary

judgment.

       Ms. Trainor drove to a nearby PNC branch location intending to make a deposit

with the drive-through teller on June 20, 2012. She arrived to a closed bank and opted

to make her deposit through the bank's outdoor ATM. After parking her car, Ms. Trainor

discovered that the area was under construction, as there was a barricade in front of the

ATM and, according to her, a sign with an arrow and red lettering, directing customers to

walk around. Ms. Trainor complied and began to walk around the barricade. While

walking through the parking lot, she stepped in what she described as a pothole. The

unexpected drop in pavement levels caused her foot to get caught and twist, resulting in

a fall that fractured her left foot and leg and injured her neck and back. Although she did

not see the pothole before she stepped in it, Ms. Trainor acknowledges that there was

nothing prohibiting her from looking down and seeing the pothole.

       Ms. Trainor filed a complaint against PNC and Kirby, PNC’s general contractor,

presenting two theories of liability—breach of the duty to warn and breach of the duty to

maintain. Kirby filed a third-party complaint against Williams, the company that actually

performed the construction, alleging counts for common law indemnity and/or

contribution, negligence, and equitable subrogation. PNC moved for summary judgment,
                                            2
joined by Kirby and Williams, claiming that they were entitled to a judgment as a matter

of law pursuant to the obvious danger doctrine. Ms. Trainor responded that the condition

was not open and obvious and that the doctrine did not absolve PNC of its duty to

maintain. After hearing argument, the trial court concluded that Appellees were entitled

to summary judgment as to all counts based on the obvious danger doctrine.

       This court reviews de novo the grant of summary judgment. Volusia Cty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In order to determine

the propriety of a summary judgment, this court must resolve whether there is any

“genuine issue as to any material fact” and whether “the moving party is entitled to a

judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for

summary judgment has the burden to prove conclusively the nonexistence of any genuine

issue of material fact.” Krol v. City of Orlando, 778 So. 2d 490, 491–92 (Fla. 5th DCA

2001) (citing City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000)). We

must consider the evidence contained in the record, including any supporting affidavits,

in the light most favorable to the non-moving party, and if the slightest doubt exists, the

summary judgment must be reversed. Id. at 492.

       The first inquiry in a negligence action is whether the defendant owed a duty to the

plaintiff. Id. Under the facts of this case, Ms. Trainor occupies the status of an invitee.

“This court has consistently held that the duty owed to invitees is 1) to use ordinary care

in keeping the premises in a reasonably safe condition, and 2) to give timely warning of

latent or concealed perils which are known or should be known by the owner or occupier.”

Id. at 492-93 (citations omitted). The duty to protect others from injury resulting from a

dangerous condition on the premises rests on the right to control access to the property.

Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla. 5th DCA 1999); see
                                            3
generally 41 Fla. Jur 2d Premises Liability § 5 (2017). Thus, ownership of the property is

not the determining factor. Rather, it is the failure of a person who is in actual possession

and control (be it the owner, an agent, a lessee, a construction contractor, or other

possessor with authority or control) to use due care to warn or to exclude licensees and

invitees from areas known to the possessor to be dangerous because of operations,

activities, or conditions. Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla. 5th DCA 1988).

Accordingly, PNC, as owner of the parking lot in question, Kirby, as PNC’s general

contractor, and Williams, who performed the construction, may all be jointly liable.

Notwithstanding, Kirby and Williams contend that they did not owe a legal duty to Ms.

Trainor under a premises liability theory. However, this ground was not raised below in

any motion for summary judgment. Accordingly, we decline to affirm summary judgment

on such ground. Loranger v. State, Dep’t of Transp., 448 So. 2d 1036, 1038–39 (Fla. 4th

DCA 1984) (declining, on rehearing, to affirm summary judgment on ground not raised

below, ground being an absence of legal duty); see Agudo, Pineiro & Kates, P.A. v.

Harbert Constr. Co., 476 So. 2d 1311, 1315, n.3 (Fla. 3d DCA 1985) (“[A]s Loranger v.

State, Department of Transportation, 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983), makes

clear, 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.”).

       The only issue raised in PNC's motion for summary judgment, to which Kirby and

Williams filed joinders, was whether Appellees were entitled to judgment as a matter of

law pursuant to the obvious danger doctrine. “The obvious danger doctrine recognizes

that owners and occupiers should be legally permitted to assume that the invitee will

perceive that which would be obvious to them upon the ordinary use of their own senses.”

                                             4
Krol, 778 So. 2d at 493 (footnotes, citations omitted). However, while the open and

obvious nature of a hazard may discharge a landowner's or possessor's duty to warn, it

does not discharge the landowner’s or possessor's duty to maintain the property in a

reasonably safe condition. Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla.

5th DCA 2012) (citation omitted); see also Burton v. MDC PGA Plaza Corp., 78 So. 3d

732, 734 (Fla. 4th DCA 2012) (“Florida courts have long held that a landowner’s duty to

warn is separate and distinct from the duty to maintain the premises in a reasonably safe

condition. ‘Case law consistently recognizes that the fact that a danger is open and

obvious may operate to discharge a landowner’s duty to warn, but it does not discharge

the duty to maintain the property in a reasonably safe condition.’” (quoting Lomack v.

Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009)); Aaron v. Palatka Mall, LLC, 908 So.

2d 574, 577 (Fla. 5th DCA 2005) (“We have noted that in addition to alleging negligence

based on breach of the duty to warn of the alleged dangerous condition, Aaron also

alleges that Palatka Mall breached its duty to keep the premises in a reasonably safe

condition. The fact that Aaron alleges breach of both duties is significant because the

courts generally agree that the obvious danger doctrine does not apply when negligence

is predicated on breach of the duty to maintain the premises in a reasonably safe

condition.”); Marriott Int’l, Inc. v. Perez-Melendez, 855 So. 2d 624, 632 (Fla. 5th DCA

2003) (“The fallacy is in the premise that the discharge of the occupier's duty to warn by

the plaintiff's actual knowledge necessarily discharges the duty to maintain the premises

in a reasonably safe condition by correcting dangers of which the occupier has actual or

constructive knowledge. To extend the obvious danger doctrine to bar a plaintiff from

recovery by negating a landowner's or occupier's duty to invitees to maintain his premises

in a reasonably safe condition would be inconsistent with the philosophy of Hoffman v.

                                            5
Jones, 280 So. 2d 431 (Fla. 1973), that liability should be apportioned according to fault.”

(citation omitted)); see generally Benjamin Jilek, The “Open and Obvious” Defense and

Summary Judgment in Premises Liability Claims, 25 Trial Advoc. Q. 36, 37 (2006) (“The

[other] duty owed by a landowner or occupier to an invitee is to use reasonable care to

maintain the premises in a reasonably safe condition. In contrast to popular belief among

many trial attorneys and judges, the duty to maintain is not related to, or discharged along

with, the duty to warn. Instead, it is a distinct duty that does not depend on whether or

not the condition was open and obvious: A plaintiff's knowledge of a dangerous condition

does not negate a defendant's potential liability for negligently permitting the dangerous

condition to exist; it simply raises the issue of comparative negligence and precludes

summary judgment.” (footnotes, citations and internal quotations omitted)).

       Further, “[w]hen an injured party alleges that the owner or possessor breached the

duty to keep the premises in a reasonably safe condition, an issue of fact is generally

raised as to whether the condition was dangerous and whether the owner or possessor

should have anticipated that the dangerous condition would cause injury despite the fact

it was open and obvious.” Aaron, 908 So. 2d at 578 (citing Lotto v. Point E. Two Condo.

Corp., 702 So. 2d 1361, 1362 (Fla. 3d DCA 1997)). The length of time the pothole may

have existed, whether the pothole had existed for a sufficient length of time to put

Appellees on actual or constructive notice of its existence, such as might constitute

negligence for the Appellees’ alleged failure to make timely repairs are material issues of

fact that remain. Turner v. Winn-Dixie Food Stores, Inc., 651 So. 2d 827, 828 (Fla. 5th

DCA 1995) (citing Barrett v. State Dep’t of Transp., 546 So. 2d 1175 (Fla. 4th DCA 1989);

Martin v. Consol. City of Jacksonville, 483 So. 2d 804 (Fla. 1st DCA 1986)). Accordingly,

the trial court erred in entering summary judgment in regards to the theory alleged by Ms.

                                             6
Trainor that Appellees breached their duty to maintain the premises in a reasonably safe

condition. Cf. Aaron, 908 So. 2d at 578 (“[W]e do not think that the obviousness of the

condition relieved the condominium association of the duty to repair it . . . . We think there

remains a factual issue whether the association should anticipate that condominium

residents would use the sidewalk and proceed to encounter the cracked and uneven

concrete, notwithstanding that the condition was obvious, and would be harmed thereby.”

(quoting Lotto, 702 So. 2d at 1362)); accord De Cruz-Haymer v. Festival Food Mkt., Inc.,

117 So. 3d 885, 888 (Fla. 4th DCA 2013) (“When an injured party alleges that the owner

or possessor breached the duty to keep the premises in a reasonably safe condition, an

issue of fact is generally raised as to whether the condition was dangerous and whether

the owner or possessor should have anticipated that the dangerous condition would

cause injury despite the fact it was open and obvious.” (quoting Aaron, 908 So. 2d at

578)). “Moreover, when the failure to maintain premises is alleged, the obvious nature of

the danger creates an issue of fact regarding the plaintiff's own comparative negligence.”

De Cruz-Haymer, 117 So. 3d at 888 (citing Burton, 78 So. 3d at 735; Fieldhouse v. Tam

Inv. Co., 959 So. 2d 1214, 1216 (“A plaintiff's knowledge of a dangerous condition . . .

simply raises the issue of comparative negligence and precludes summary judgment.”)).

       For the reasons stated herein, we reverse the final summary judgments entered in

favor of PNC, Kirby and Williams and remand this case for further proceedings.

       REVERSED AND REMANDED.

SAWAYA and EDWARDS, JJ., concur.




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