       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

ISRAEL J. GOMEZ CRUZ, as Personal Representative of the ESTATE OF
 ISRAEL Z. GOMEZ-RODRIGUEZ, and MARGARITA CRUZ de GOMEZ,
                      decedent’s widow,
                          Appellants,

                                   v.

                    WAL-MART STORES EAST, LP,
                            Appellee.

                             No. 4D18-178

                           [March 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE 14-
007759 (25).

   Alexander D. Brown and Adam S. Goldman of The Concept Law Group,
P.A., Fort Lauderdale, for appellant.

  Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa,
and David Tarlow of Quintairos, Prieto, Wood & Boyer, P.A., Fort
Lauderdale, for appellee.

GROSS, J.

    One night, a 72-year-old man tripped on a raised manhole cover and
fell in a Wal-Mart parking lot, sustaining serious head trauma. He and
his wife sued Wal-Mart Stores East, LP, alleging various theories of
negligence. The circuit court granted Wal-Mart’s motion for summary
judgment, without elaboration. We reverse because there are disputed
issues of material fact that preclude summary judgment.

   Wal-Mart’s motion for summary judgment raised several issues. First,
it contended that the store did not breach its duty to maintain the
premises in a reasonably safe condition because the manhole was
inspected and approved by various government entities.

   Second, the store argued that the customer’s accident was not
foreseeable because there were no prior accidents involving the manhole.
The store made the related argument that it had no actual or constructive
notice of the alleged defective condition. In support of this argument, the
store attached the depositions of two managers who testified about the
store’s safety inspections.

   Third, the store contended that the manhole was open and obvious and
that it had no duty to warn the customer.

   Fourth, the store asserted that the customer was the sole and
proximate cause of his accident because the manhole was open and
obvious, and the customer failed to look where he was going.

   The plaintiffs responded in opposition to the motion, attaching excerpts
from seven depositions along with three photographs of the fall captured
by the store’s security camera. The plaintiffs argued that the motion for
summary judgment should be denied for several reasons including:

   (1) The manhole was never determined to be safe. The inspections by
the governmental entities were made to determine if the manhole was built
according to approved plans and specifications. There was no evidence
that the manhole was ever inspected for safety.

    (2) There were genuine issues of material fact as to whether the store
kept the premises in a safe condition. The store’s “safety checks” did not
resolve this factual issue because there were issues as to the thoroughness
of the checks and the competency of the employees performing them.

    (3) There were genuine issues of material fact as to whether the store
should have known of the dangerous condition of the manhole in light of
its elevated nature and nonconformance with applicable building codes.

  (4) The manhole itself, combined with the area around the manhole,
was a dangerous condition.

   (5) The danger of the manhole (and not simply its presence) was not
open and obvious to the customer.

    The plaintiffs attached the deposition of their expert civil engineer. He
testified that manholes are required to be flush with the pavement.
Despite this requirement, the Broward County Code allows a “construction
tolerance” of 1/4-inch between the pavement and the top edge of the
manhole cover. An elevation of less than 1/4-inch is not considered a
tripping hazard. The expert testified that the manhole was not flush with


                                    -2-
the pavement and that at the edge of the manhole cover, there were places
where the drop to the pavement exceeded 1/4-inch.

   The expert also testified that around the manhole, there were various
changes in grade, in some places greater than one inch. The Broward
County Code requires the pavement around the manhole to be smooth and
well-graded and the pavement around this manhole was not.

    The expert concluded that, because of its elevation and the uneven
surface around it, the manhole did not comply with the Broward County
Code or the City’s building ordinances. He opined that the customer
tripped on the manhole due to an improperly maintained paving surface.
He added that insufficient lighting, combined with traffic conditions, could
have caused a distraction that contributed to the customer’s fall.

   The plaintiffs also attached the deposition of a second expert. She said
the store did not properly maintain the manhole as it should have, stating:
“There is a gap between the top surface of the manhole cover and the
adjacent pavement that is greater than a quarter inch on at least three of
the four sides. So it obviously is a tripping hazard.” She said that the gap
was measured to be 10/32 of an inch on the north side of the manhole.

   The plaintiff also attached the deposition of the inspector for the City of
Pembroke Pines. He testified that the City inspected the manholes to
ensure that they were completed pursuant to the City building codes. He
stated that manhole covers should be flush with the pavement, but that
there was an acceptable tolerance of 1/4-inch. He testified that if there is
more than 1/4-inch between the manhole cover and the pavement, the
City would make the contractor adjust it so it is flush. He was shown a
photograph of a manhole cover and testified that the manhole in the
photograph would not have passed his inspection.

   The circuit court granted Wal-Mart’s motion for summary judgment,
without explanation.

                            Standard of Review

   “The standard of review of a trial court’s ruling on a motion for
summary judgment is de novo.” De Cruz-Haymer v. Festival Food Mkt.,
Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013).

      Where the defendant is the party moving for summary
      judgment, as here, neither the trial court nor this court
      determines whether the plaintiff can prove its case; our

                                     -3-
      function solely is to determine whether the pleadings,
      depositions, and affidavits conclusively show that the plaintiff
      cannot prove its case.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383, 391 (Fla. 2d
DCA 2018) (emphasis added) (internal quotation marks, citation, and
alterations omitted).

               The Movant’s Burden At Summary Judgment

    “Summary judgment is appropriate where there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter
of law.” Hollywood Towers Condo. Ass’n v. Hampton, 993 So. 2d 174, 176
(Fla. 4th DCA 2008). If the moving party meets its initial burden “of
demonstrating the nonexistence of material issues of fact,” the burden
shifts to the party opposing summary judgment to come forward with
evidence establishing a question of material fact exists. Carnes v. Fender,
936 So. 2d 11, 14 (Fla. 4th DCA 2006). In determining whether there are
any issues of material fact, all reasonable inferences must be drawn in
favor of the non-moving party. E.g., Hollywood Towers, 993 So. 2d at 176.
This court has recognized that, “motions for summary judgment should be
cautiously granted in negligence actions.” See Gonzalez v. B & B Cash
Grocery Stores, Inc., 692 So. 2d 297, 299 (Fla. 4th DCA 1997).

            Premises Liability – Duty Owed to Business Invitee

      A landowner owes two duties to a business invitee: (1) to use
      reasonable care in maintaining its premises in a reasonably
      safe condition; and (2) to give the invitee warning of concealed
      perils that are or should be known to the landowner and that
      are unknown to the invitee and cannot be discovered through
      the exercise of due care.

St. Joseph’s Hosp. v. Cowart, 891 So. 2d 1039, 1040 (Fla. 2d DCA 2004).
While a landowner is not an insurer of the safety of its invitees, id., the
landowner does owe a duty “not only to react to hazards of which it has
notice but also to inspect to ensure conditions are safe or, at the least,
that hazards (unless open and obvious) are discovered and warned
against.” Food Lion, LLC v. Monument/Julington Assoc. Ltd. P’ship, 939
So. 2d 1106, 1107–08 (Fla. 1st DCA 2006). “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

                                    -4-
the fact it was open and obvious.” Aaron v. Palatka Mall, L.L.C., 908 So.
2d 574, 578 (Fla. 5th DCA 2005).

                                Discussion

   Here, Wal-Mart did not meet its burden of demonstrating the
nonexistence of material issues of fact. The first material fact that the
store failed to establish was that the manhole was not a dangerous
condition. The plaintiffs’ experts supported the claim that the manhole
was a dangerous condition because (1) the manhole was raised and
elevated higher than permitted by the Broward County Code; and (2) the
manhole’s excessive elevation rendered it a fall hazard. The store
presented several letters from governmental authorities as evidence that
the manhole was inspected and complied with building codes. However,
the store’s compliance with building codes is not conclusive on the issue
of whether they maintained a dangerous condition on the premises. See
Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959,
964 (Fla. 1989) (“While one’s compliance with a statute or an ordinance
may amount to evidence of reasonableness, such compliance is not
tantamount to reasonableness as a matter of law.”). The dangerousness
of the manhole remained an issue of fact that was not conclusively
determined by the record at summary judgment.

   The second material fact the store failed to establish is whether the
manhole presented an open and obvious danger. If a danger is open and
obvious, then the owner or possessor of land may be legally permitted to
assume that those entering the premises will perceive the condition “upon
the ordinary use of their senses.” Aaron, 908 So. 2d at 577. In order to
determine whether the open and obvious danger doctrine applies, the
court is “required to consider all of the facts and circumstances
surrounding the accident and the alleged dangerous condition.” Id.

    Aaron is directly on point. There, on a misty, drizzly night, a customer
tripped over a parking lot bumper that was almost the same color as the
parking lot surface.      The court held that “under these facts and
circumstances, a jury should decide whether the parking lot bumper was
a dangerous condition that was open and obvious.” Id. at 579. The
obvious danger doctrine cannot be stretched to include situations “where
the dangerous condition is shrouded in darkness and mist.” Id.

  Here, the customer was 72 years old, it was 10:15 at night, the lighting
was poor, the manhole was in a travel lane in front of the store, the store
was busy, and cars were coming and going with their headlights on. Under


                                    -5-
these conditions, whether the raised manhole was an open and obvious
danger was a disputed issue of material fact.

    The third material fact the store failed to establish is that, even if the
manhole constituted an open and obvious dangerous condition, the store
should not have anticipated that the manhole would cause injury despite
its obviousness.

    For example, in Middleton v. Don Asher & Associates, Inc., 44 Fla. L.
Weekly D301 (Fla. 5th DCA Jan. 25, 2019), a resident of a condominium
fell on an uneven sidewalk. The court found that “a factual issue remained
as to 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.” Id.

   Similarly, in De Cruz-Haymer, a customer tripped over an unsecured,
not perfectly flat floor mat that was placed at the store entrance. 117 So.
3d at 887. We found that the trial court did not err in holding that the
rumpled mat was an open and obvious danger. Id. at 888. However, we
determined that the lower court erred in entering summary judgment for
the store because, where there was only one entrance to the store, whether
the store “should have expected that invitees were likely to trip over a
rumpled mat despite the fact the mat’s existence and condition was open
and obvious” was a disputed issue of material fact. Id. at 889.

   Here, the manhole was located between the store and the parking lot.
Whether customers heading to their cars should have been expected to
sidestep the raised manhole in every instance, or whether the store should
have anticipated that its customers were likely to trip over the manhole
despite its obviousness, is an issue of fact.

   Because there were disputed issues of material fact, we reverse the
summary final judgment and remand to the circuit court for further
proceedings.

CONNER and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     -6-
