                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA
THOMAS BROOKIE,
                                      NOT FINAL UNTIL TIME EXPIRES TO
      Appellant,                      FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
v.
                                      CASE NO. 1D16-1285
WINN-DIXIE STORES, INC.
and THE LEWIS BEAR
COMPANY,

     Appellees.
_____________________________/

Opinion filed April 4, 2017.

An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

Harold R. Mardenborough, Jr. and C. Brian Davidson of Perry & Young, P.A.,
Panama City, for Appellant.

Robert C. Palmer, III of Wade, Palmer & Shoemaker, P.A., Pensacola; Randall G.
Rogers and Kathryn L. Ender of Cole Scott & Kissane, Pensacola, for Appellee
Winn-Dixie Stores, Inc.

Charles Wiggins of Beggs & Lane, RLLP, Pensacola, for Appellee The Lewis Bear
Company.



B.L. THOMAS, J.

      In this premises-liability case we address the issue of whether summary

judgment may be granted when the injured party observed the condition but failed

to step around the easily avoidable obstacle. We hold that the trial court properly
granted summary judgment, because as a matter of law Appellees owed no duty to

warn Appellant, and properly discharged their duty to exercise ordinary care to

maintain the premises in a reasonably safe condition.

      Appellant went to Winn-Dixie to make a purchase and get empty boxes.

During his visit, Appellant made a total of four trips into and out of the store. On

the first trip, Appellant made his purchase and took it to his car; he then made three

more trips into Winn-Dixie to obtain empty boxes, returning them to his car.

During this time, a Lewis Bear employee was delivering a shipment of beer. The

beer was stacked approximately five feet high on a pallet between Winn-Dixie’s

entrance and exit doors, and an empty pallet was sitting on the pallet jack’s prongs

to the right of the exit. On Appellant’s third trip exiting the store, he saw the

empty pallet, but tripped and fell over it, suffering injuries as a result. Appellant

sued Appellees for negligently failing to warn of the dangerous condition and

negligently failing to make the sidewalk safe to walk across.

      During discovery, Appellant produced an affidavit from his expert averring

that Appellees created an unsafe condition, and Appellees offered video

surveillance still-shots from footage of the events. In his deposition, Appellant

testified that he did not notice the empty pallet until his third trip, claiming that he

tripped over the prongs protruding from underneath the pallet, as opposed to the

pallet itself. After hearing arguments, the trial court granted summary judgment in

                                           2
favor of Appellees, finding Appellees owed no duty to warn Appellant of the pallet

or the prongs, because Appellant was aware of the condition. The court further

found the condition to have been so open, obvious, and ordinary that it was

inherently not dangerous as a matter of law, absolving Appellees of liability.

         In a premises-liability decision upholding summary judgment for the

landowner, the Florida Supreme Court recognized more than a half-century ago

that a

         business invitee is entitled to expect that the proprietor will take
         reasonable care to discover the actual condition of the premises and
         either make them safe or warn [the invitee] of dangerous conditions, it
         is equally well settled that the 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.

Earley v. Morrison Cafeteria Co. of Orlando, 61 So. 2d 477, 478 (Fla. 1952)

(emphasis added). This court has also held that “there is no duty to warn against

an open and obvious condition which is not inherently dangerous.” Ramsey v.

Home Depot U.S.A., Inc., 124 So. 3d 415, 417 (Fla. 1st DCA 2013). As premises-

liability law developed post-Earley, lower-court decisions have recognized that a

business owner owes two “separate and distinct” duties to business invitees: “1) to

warn of concealed dangers which are or should be known to the owner and which

are unknown to the invitee and cannot be discovered through the exercise of due

care; and 2) to use ordinary care to maintain its premises in a reasonably safe


                                           3
condition.” Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA

2011).

      As noted in Rocamonde:

      The granting of summary judgment is subject to de novo review. Volusia
      Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). The
      appellate court is required to ‘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.’ Tropical Glass & Constr. Co. v. Gitlin, 13 So. 3d 156,
      158 (Fla. 3d DCA 2009), quoting Krol v. City of Orlando, 778 So. 2d 490,
      492 (Fla. 5th DCA 2001). In negligence suits particularly, ‘summary
      judgments should be cautiously granted.’ Moore v. Morris, 475 So. 2d 666,
      668 (Fla. 1985). ‘If the evidence raises any issue of material fact, if it is
      conflicting, if it will permit different reasonable inferences, or if it tends to
      prove the issues, it should be submitted to the jury as a question of fact to be
      determined by it.’ Id. (citing Williams v. Lake City, 62 So. 2d 732 (Fla.
      1953)). Summary judgment should not be granted ‘unless the facts are so
      crystallized that nothing remains but questions of law.’ Id. (citing Shaffran
      v. Holness, 93 So. 2d 94 (Fla. 1957)).

Id. at 864-865.

      In Rocamonde, the Third District held that summary judgment based on

Earley was improper where “‘it is the dangerous condition of an object which must

be open and obvious, not simply the object itself.’” Id. (quoting Kloster Cruise

Ltd. v. Grubbs, 762 So. 2d 552, 555 (Fla. 3d DCA 2000)). The Third District also

noted that, although a property owner may comply with the duty to warn of an

open and obvious condition, this “does not necessarily mean the landowner has

satisfied the duty to maintain the premises in a reasonably safe condition[.]”

(Emphasis added.) Id. at 864. Obviously, in some cases, a property owner may in
                                          4
fact comply with both duties when an open and obvious condition does not trigger

a duty to warn and the condition itself does not violate a property owner’s duty to

maintain the premises in a reasonably safe condition. We hold here that Appellees

did not violate any legal duty to Appellant, who observed the condition but was

injured by failing to use due care for his own safety, when a reasonable person

could have easily avoided the obstacle and thereby prevented injury.

      Here, Appellant admitted that he saw the empty pallet when he exited the

store and took four more steps before tripping over it. The surveillance video

footage conclusively refutes Appellant’s allegation that he tripped over the prongs,

as he tripped over the pallet itself, but we note that the trial court found Appellant’s

claim regarding the prongs to be immaterial, and we agree with the trial court,

which ruled “the [Appellant] changed course and walked so as to avoid the [pallet]

on three other occasions during the surveillance video, twice prior to his fall and

once again a few minutes afterward. The Court concludes that no genuine issue of

fact exists regarding whether the condition causing [Appellant’s] fall was open and

obvious.” (Emphasis added.)

      Therefore, the facts are sufficiently crystallized here so that the issue on

appeal is purely a question of law: Did Appellees violate either a duty to warn of a

dangerous condition or a duty to maintain the premises in a reasonably safe

condition, when Appellant previously observed an open and obvious condition, not

                                           5
inherently dangerous, and walked into the object causing his own injury.

      First, we hold that Appellees owed no duty to warn Appellant of the open

and obvious condition, because Appellees’ knowledge of the condition was not

“superior” to Appellant’s. Hunt v. Slippery Dip of Jacksonville, Inc., 453 So. 2d

139, 139 (Fla. 1st DCA 1984) (holding that “defendant’s knowledge of a danger

must be superior to that of a business invitee . . . to create a duty on the part of the

defendant to warn.”); see also McAllister v. Robbins, 542 So. 2d 470, 470 (Fla. 1st

DCA 1989) (affirming summary judgment where there was “no question of duty to

warn, since plaintiff’s knowledge was equal with that of the defendants”); Ball v.

Ates, 369 So. 2d 1023 (Fla. 1st DCA 1979) (citing Vt. Mut. Ins. Co. v. Conway,

358 So. 2d 123, 124 (Fla. 1st DCA 1978), and affirming grant of directed verdict

for defendant, stating “rule is that a defendant’s knowledge of danger must be

superior to that of a business invitee in order to create a duty to warn of dangers

unknown to the plaintiff.”). Appellant knew the location of the pallet, having seen

it twice earlier, before the accident. Thus, Appellees had no greater knowledge of

the condition than Appellant, and therefore, had no duty to warn Appellant of its

presence.

      Second, we must address whether Appellees breached their duty to exercise

ordinary care in maintaining the walkway in a reasonably safe condition for its

intended use. Denson v. SM-Planters Walk Apartments, 183 So. 3d 1048, 1050-51

                                           6
(Fla. 1st DCA 2015). In Denson, this court acknowledged that a landowner has

two distinct duties to business invitees: the duty to warn of latent, dangerous

conditions, and the duty to maintain the premises in a reasonably safe condition.

Id. In Dampier v. Morgan Tire & Auto, LLC, as discussed in Denson, the Fifth

District discussed the applicable legal principles:

      Nonetheless, some conditions are so obvious and not inherently
      dangerous that they can be said, as a matter of law, not to constitute a
      dangerous condition, and will not give rise to liability due to the
      failure to maintain the premises in a reasonably safe condition. See,
      e.g., Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) (holding difference
      in floor levels is not inherently dangerous condition, even in dim
      lighting, so as to constitute failure to use due care for safety of person
      invited to premises). Other conditions are dangerous, but are so open
      and obvious that an invitee may be reasonably expected to
      discover them and to protect himself. See, e.g., Ashcroft v. Calder
      Race Course, Inc., 492 So. 2d 1309, 1311 (Fla. 1986). The rule
      applied in these circumstances is to absolve the landowner of liability
      unless the landowner should anticipate or foresee harm from the
      dangerous condition despite such knowledge or obviousness. Id.;
      Etheredge v. Walt Disney World Co., 999 So. 2d 669, 672 (Fla. 5th
      DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So. 2d
      1233, 1234 (Fla. 5th DCA 2006).
82 So. 3d 204, 206 (Fla. 5th DCA 2012) (emphasis added). Thus, there are two

types of obvious conditions that will not constitute a breach of a duty to maintain

premises in a reasonably safe condition, to wit: 1) where the condition is so “open

and obvious and not inherently dangerous”; or 2) where the condition may be

dangerous, but is “so open and obvious that an invitee may be reasonably expected

to discover them to protect himself.” Id. Thus, while many decisions speak of the


                                          7
duty to warn and the duty to maintain premises in a reasonably safe condition as

separate and distinct duties, for analytical purposes the duties are not mutually

exclusive, as the open and obvious nature of a condition may preclude a finding of

a breach of either duty, as a matter of law.

      In Denson, this court reversed summary judgment because material facts

remained in dispute as to whether the landowner properly mixed a non-skid

additive to outdoor-concrete paint. 183 So. 3d at 1051-52. But here, we hold that

under these facts, Appellees did not breach their duty to exercise ordinary care to

maintain the premises in a reasonably safe condition, for either of two reasons:

first, that the condition so open and obvious and not inherently dangerous, or

second, assuming arguendo that the pallet’s location was dangerous, it was so open

and obvious, and previously observed by Appellant, that Appellees could

reasonably expect Appellant to protect himself from the purported danger.

      Addressing the first possible reason in determining whether Appellees are

absolved of any liability of their duty to maintain the premises in a reasonably safe

condition, we hold that the pallet’s location was open and obvious and not

inherently dangerous. There are times when conditions are so common, or so

innocuous in our everyday life, that they do not impose liability on the landowner.

Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th

DCA 1990) (holding that condition was “so open and obvious, so common and so

                                          8
ordinarily innocuous” that it was not dangerous as a matter of law where plaintiff

tripped over joint in gas station parking lot where concrete met asphalt); Aventura

Mall Venture v. Olson, 561 So. 2d 319, 321 (Fla. 3d DCA 1990) (agreeing with

Fifth District’s holding in Ferguson and affirming summary judgment on same

grounds when plaintiff tripped over sidewalk curb); Ramsey, 124 So. 3d at 419

(affirming summary judgment where plaintiff tripped over wheel stop in center of

parking space that complied with ADA regulations).

      In McAllister, the plaintiff hurt his foot “when he caught his heel on one of a

number of concrete blocks marking the property line of the Wisteria Bar.” 542

So. 2d at 470. The plaintiff acknowledged that “he knew the line of blocks existed

before the accident” and on the night of the accident “he saw the blocks and ‘was

trying to step over the blocks’ when his heel caught.” Id. This court affirmed the

grant of summary judgment, discussing in detail the applicable legal principles,

noting that the plaintiff “saw and knew about the blocks at the time of the

accident, and there was no question of duty to warn, since plaintiff’s knowledge

was equal with that of the defendants.” Id. at 471 (emphasis in original). While

the court noted that the blocks were present for 17 years and no one had previously

injured themselves, the court focused primarily on the fact that the plaintiff had

seen the blocks before he injured himself. Further, this court emphasized that “a

person is not required to take measures to avoid a danger which the circumstances

                                         9
as known to him do not suggest as likely to happen. Previous decisions have held

that protruding, uneven bricks bordering a tree did not constitute a dangerous

condition . . . even though the area . . . was one in which young children played.”

Id. (citation omitted). Thus, McAllister provides authority for our holding here.

      In Miranda v. Home Depot U.S.A., Inc., the plaintiff, in attempting to reach

a planter on a display shelf which was blocked by a ladder, “projected her head and

shoulders and upper torso through the ladder,” and after standing up, hit a cross bar

on the ladder and injured her right eye, leading to her suit against Home Depot.

604 So. 2d 1237, 1238 (Fla. 3d DCA 1992). In moving for summary judgment,

Home Depot argued that “there was no breach of reasonable care and that the

presence of the ladder was open and obvious, making Miranda’s conduct the sole

proximate cause of the accident.” Id. (emphasis added). The Third District

affirmed the trial court’s grant of summary final judgment. Id. The Third District

noted Miranda’s argument that “ladders on the store’s selling floor represent an

unreasonable risk of harm to customers and thus the relative negligence of the

parties . . . creates a question of fact precluding summary judgment.” Id. The

court rejected this argument, distinguishing Nichols v. Home Depot, Inc., 541

So. 2d 639 (Fla. 3d DCA 1989), where a patron climbed a ladder in the store and

fell off the ladder, noting that in Nichols, the court recognized a duty based on the

“foreseeable risk of harm . . . that ‘customers, inexperienced in scaling ladders and

                                         10
unknowledgeable about the weights of items in the overhead areas’” would

potentially harm themselves by attempting to use the ladders when store assistance

was not available. Miranda, 604 So. 2d at 1238. But the court, relying on Stahl v.

Metropolitan Dade County, 438 So. 2d 14 (Fla. 3d DCA 1983), reiterated that only

those injuries “‘such as ordinarily and naturally should have been regarded as

a probable, not a mere possible, result of the negligent act’” are entitled to

compensation based on a violation of a legally-imposed duty to maintain the

premises in a safe condition. Id. (emphasis in original).

      This is closely comparable to the facts here: Appellant’s action of walking

right into the pallet, not an inherently dangerous condition and one that he had

previously and contemporaneously observed twice before, was the sole proximate

cause of his injuries. It is neither “probable nor foreseeable” that someone seeing a

pallet on the ground, and having passed by it twice before, would fail to avoid the

open and obvious condition. The standard must be based on an objective

evaluation, understanding that every case will involve an accident, which cannot

by itself mandate that summary judgment never be granted in cases involving open

and obvious conditions.

      We would also hold here that even if the pallet’s location was inherently

dangerous, which it was not, that summary judgment was properly granted,

because Appellant saw the allegedly dangerous condition, which was so open and

                                         11
obvious, that he could be “‘reasonably expected to discover [the pallet] and to

protect himself.’” Denson, 183 So. 3d at 1051 (quoting Dampier, 82 So. 3d at

206). As we discussed above, the Florida Supreme Court held 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.” Earley, 61 So. 2d at 478. Here, this

is precisely the case, as Appellant saw the purportedly dangerous condition but

failed in the “ordinary use of his own senses” to avoid the observed condition.

      To reverse the summary judgment here would make business owners

universal insurers. Business owners receive shipments of products every day,

which must be stored somewhere before final placement, and if a customer sees

the placement of the products but trips and falls over them, the customer, or

invitee, has violated his own duty to exercise reasonable care for his own safety.

Here, as the trial court stated in its order granting summary judgment, one of the

Appellees was delivering merchandise to the other Appellee, “a practice that is

necessary in everyday life in our society. . . . The condition in this case was a large

pallet . . . that invitees walked by rather than walking into, as [Appellant]

unfortunately did on his third of four exits from the store. The Court concludes

that the condition in this case was not inherently dangerous.” We agree.

      And we do not think that Owens v. Publix Supermarkets, Inc., 802 So. 2d

315 (Fla. 2001), requires us to reverse, because there, an injured party slipped on a

                                          12
piece of discolored banana on the floor that was unseen by the plaintiff. The

supreme court noted that “[t]he existence of a transitory foreign substance on the

floor is not a safe condition.” Id. at 330. The court went on to hold that

      the existence of a foreign substance on the floor of a business
      premises that causes a customer to fall and be injured is not a safe
      condition and the existence of that unsafe condition creates a
      rebuttable presumption that the premises owner did not maintain the
      premises in a reasonably safe condition.

Id. at 331. A pallet used for unloading goods is not a “foreign substance,” but a

legitimate aspect of a retail-business economy. Furthermore, the Owens court did

not overrule its earlier announced principle in Earley, and that court has long held

that other courts are not to assume that the supreme court overrules itself

sub silentio. Arsali v. Chase Home Fin. LLC, 121 So. 3d 511, 516 (Fla. 2013)

(“[W]e did not intentionally overrule our previous decision . . . sub silentio,

because this Court does not engage in such practices.”); Puryear v. State, 810

So. 2d 901, 905-06 (Fla. 2002) (“We take this opportunity to expressly state that

this Court does not intentionally overrule itself sub silentio.”).

      We also think our decision in Lomack v. Mowrey, 14 So. 3d 1090, 1092

(Fla. 1st DCA 2009), is not to the contrary, as the exposed and “loose wires” there

created a hazard, and it was not clear from our decision whether the landowner in

Mowrey complied with the duty to warn the plaintiff of the hazard. Id. We think




                                           13
the hazard in Mowrey is qualitatively different than the temporary placement of a

pallet outside a store’s exit.

       The ultimate question is “whether the owner or possessor should have

anticipated that the dangerous condition would cause injury despite the fact that it

was open and obvious.” Moultrie v. Consolidated Stores Int’l Corp., 764 So. 2d

637, 640 (Fla. 1st DCA 2000). In Moultrie, this court properly reversed summary

judgment where, unlike here, the invitee did not see the empty pallet left unmarked

in the store aisle, and she fell over the pallet while looking upward in another

direction and backing up, tripping over the pallet. Thus, “the height of the pallet

was such that it might not fall within the line of vision of adult invitees who

entered . . . to purchase items placed on counters and shelves.” Id. at 639-640.

This court concluded by holding that the case “does not present a condition which

was so open and obvious and ordinary that it could be held as a matter of law that

the pallet did not constitute a foreseeable risk of harm to individuals . . . .” Id.

Here, Appellant actually observed the pallet’s location; thus, even assuming the

pallet created a dangerous condition, Appellant had a duty to avoid the previously

observed pallet, which he did twice before he fell.

       In another example, in Burton v. MDC PGA Plaza Corp., 78 So. 3d 732

(Fla. 4th DCA 2012), the Fourth District reversed summary judgment where the

plaintiff stepped in a pothole on the defendant’s property. Although the plaintiff

                                         14
was aware of the “glaringly” open and obvious hazard, and had “‘knowledge equal

to or superior to that of the landowner,’” the court correctly noted that a “pothole is

not a natural condition, nor does it create a reasonable risk of harm. A pothole

forms when a landowner fails to maintain the property . . . .” Id. at 733, 735. Thus,

“the defendants’ duty to maintain the premises in a reasonably safe condition was

not discharged by the plaintiff’s knowledge of the pothole before she fell.” Id. at

735.

       But the court in Burton also acknowledged the decision in Arnoul v. Busch

Entertainment Corp., 2008 WL 4525106 *3-4 (M.D. Fla. Oct. 6, 2008), where the

Middle District granted summary judgment where the plaintiff’s injuries were

caused by his own “failure to take precautions.” In Arnoul, the court relied on this

court’s decision in McAllister for the proposition that that “‘some injury-causing

conditions are so open and obvious that they can be held as a matter of law not to

give rise to liability as dangerous conditions.’”      Id. at *2 (quoting Taylor v.

Universal City Prop. Mgmt., 779 So. 2d 621, 622 (Fla. 5th DCA 2001) and citing

McAllister and Crawford v. Miller, 542 So. 2d 1050, 1051 (Fla. 3d DCA 1989), for

the proposition that “where a plaintiff had knowledge of a protrusion onto a

walkway, the premises was not in an unreasonably dangerous condition, since the

plaintiff’s injuries could have been avoided by her taking due care to avoid them”).

The Arnoul court noted that the landowner must protect business invitees from

                                          15
potential dangers by “repairing broken stairway handrails, removing slippery

substances on stairways, and lighting dark objects that may be hard to see at

nighttime, for example.” Id. (footnotes omitted). None of those hazards were

present here. But where the condition at issue is open and obvious, it is

        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. Such anticipation should occur,
        for example, when avoiding the hazard would be impossible or
        highly inconvenient.

Id. (emphasis added) (citation omitted). Thus, the corollary proposition is true as

well:

        If the obviousness of the condition would lead a reasonable person to
        believe that the danger will be avoided, the condition is not
        unreasonably dangerous, and the landowner is not liable. . . . So,
        merely being on another’s property when injured by such conditions
        does not automatically allow a person to shift the fault for accidents
        caused by his own negligence.

Id. at *3 (emphasis added). Or as stated in Crawford, “The mere occurrence of an

accident does not, without more, give rise to an inference of negligence.” 542

So. 2d at 1051. We concur with this correct legal and logical analysis, which

aligns with our analysis and holding in McAllister.

        To reverse the summary judgment here would make all landowners subject

to a jury trial when a business invitee, by his own negligence, unnecessarily trips

on an open and obvious condition, of which he is aware, when no reasonable

                                         16
person would injure himself by such negligence. The facts of Arnoul are closely

similar with the facts here: Despite seeing the branch over a busy sidewalk at

Busch Gardens, Arnoul argued that he was distracted by his granddaughter and the

“amount of pedestrian activity and the flashy displays and award-winning

landscaping [all] designed to lure pedestrians’ eyes away from the path in front of

them [and] make it likely that pedestrians [would] not notice the branch and

[would] walk into it . . . .” Arnoul, 2008 WL 4525106 at 3. Here, Appellant’s

argument is that, although he knew of the pallet on the ground several feet in front

of the exit door, he was distracted while carrying empty boxes and tripped over it.

Like here, the Arnoul court rejected the plaintiff’s argument for two reasons: First,

the plaintiff knew of the branch over the walkway, and second, to hold the property

owner liable for breach of a duty to maintain reasonably safe premises in such a

scenario would mean adopting a universal rule finding premises liability in all

cases, as there are “no premises safe enough to entirely foreclose the risk that a

guest might injure himself during an inattentive moment.” Id.

      It would defy common sense and any valid notion of a rational allocation of

risk in everyday life to make all businesses everywhere liable for unreasonable

inattentiveness of invitees. As concisely noted by the Arnoul court, this court too

“is not prepared to dispense with the duty of care owed to one’s self, the exercise

of which others are entitled to depend upon.” Id.

                                         17
      A premises owner operating a lawful business benefits society, and part of

the burden of a viable commercial enterprise often requires the receipt and

stocking of goods and products. The law provides protection to premises owners

from unjustified and costly litigation, when any reasonably attentive invitee who

saw an open and obvious condition – such as a pallet partially blocking a walkway

– would act in his or her own interest in personal safety, and by the use of ordinary

common sense, avoid the observed transitory item. Arnoul, 2008 WL 4525106 at

*4; Earley, 61 So. 2d at 478; Ramsey, 124 So. 3d at 417; McAllister, 542 So. 2d at

470; Ferguson, 556 So. 2d at 1208.        Appellees were under no duty to warn

Appellant of the open and obvious pallet, where Appellant’s knowledge of the

pallet was equal to or superior to Appellees’ knowledge. Furthermore, Appellees

did not fail to maintain the premises in a safe condition where Appellant saw the

pallet, which was not inherently dangerous, or if considered dangerous, was readily

avoidable, had Appellant engaged in the “ordinary use of his own senses.” Earley,

61 So. 2d at 478. The legal duty of premises owners owed to business invitees is

based on logic, common sense, and human experience, and in this case the trial

court correctly granted summary judgment, because Appellees did not breach any

duty owed to Appellant, as a matter of law.

      Contrary to the dissenting opinion, we plainly do not hold that Appellees

owed Appellant no duty to maintain their premises in a reasonably safe condition.

                                         18
Rather, we follow precedent to hold that Appellees complied with their duty to

maintain the premises in a reasonably safe condition by exercising ordinary care in

accepting delivery of an inventory shipment which, as the trial court correctly

noted, is an ordinary feature of everyday life. Appellees could not reasonably have

anticipated that Appellant would trip over the pallet he had previously observed

and safely walked around twice before the accident.

      AFFIRMED.

OSTERHAUS, J., CONCURS; BILBREY, J., CONCURRING IN PART AND
DISSENTING IN PART.




                                        19
BILBREY, J., concurring in part and dissenting in part.

      As the majority opinion correctly notes, a business owner owes two

“separate and distinct” duties to business invitees. (Maj. Op. 3-4). See also

Grimes v. Family Dollar Stores of Florida, Inc., 194 So. 3d 424 (Fla. 3d DCA

2016). I agree that the presence of the pallets and pallet jack was open and obvious

such that there was no duty to warn, since they were not inherently dangerous. See

Upton v. Rouse’s Enterprise, LLC, 186 So. 3d 1195, 1202 (La. Ct. App. 2016)

(explaining “a pallet does not inherently pose an unreasonable risk of harm.”). I

therefore agree that summary judgment was appropriately granted as to the

Appellees’ duty to warn Appellant of objects he already knew or should have

known about. However, I believe questions of fact should have precluded entry of

summary judgment on the issue of whether Appellees used “ordinary care to

maintain [the] premises in a reasonably safe condition,” when a full pallet, empty

pallet, and pallet jack were positioned in close proximity to the only means of

entering and existing the premises and in the pathway to the parking lot. 1 See

Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011); see

also Lynch v. Brown, 489 So. 2d 65, 67 (Fla. 1st DCA 1986) (holding “a plaintiff’s

knowledge of a dangerous condition does not negate a defendant’s potential


1
 Appellant tripped over the empty pallet or tips of the pallet jack while exiting the
premises for a third time, this time with an armful of boxes which obstructed his
vision.
                                        20
liability for negligently permitting the dangerous condition to exist; it simply raises

the issue of comparative negligence and precludes summary judgment.”). I would

therefore reverse the grant of summary judgment as to the Appellee’s duty to

maintain the premises in a reasonably safe condition and remand the case to the

trial court for further proceedings.2

      Here, the Appellees’ motions for summary judgment recognized that there

were two separate duties alleged and therefore two issues for the trial court’s

consideration. The trial court’s order granting summary judgment also recognized

the two duties and thoroughly analyzed the duty to warn, Appellant’s knowledge of

the hazard, and the fact that the pallets and jack were not inherently dangerous.

But the trial court’s order did not explain why the Appellees did not owe Appellant

a duty to maintain the premises in a reasonably safe condition. We are left with a

review of the record to determine as a matter of law whether no material issues of

fact exist such that summary judgment was appropriate as to Appellees’ duty to

maintain the premises. See Fla. R. Civ. P. 1.510; Lomack v. Mowrey, 14 So. 3d

1090 (Fla. 1st DCA 2009).

      In opposition to the motions for summary judgment, Appellant submitted the

affidavit of Jeremy Cummings, Ph.D., as expert opinion in the areas of human


2
 Appellant would still need to prove that Appellees “had actual or constructive
notice of the dangerous condition.” Grimes, 194 So. 3d at 427 (citing Schaap v.
Publix Supermarkets, Inc., 579 So. 2d 831, 834 (Fla. 1st DCA 1991)).
                                        21
factors, biomechanics, and biomedicine. Dr. Cummings’ affidavit stated that the

pallet was not in a reasonably safe location and that it was reasonable to anticipate

that Appellant’s attention could have been diverted when Appellant tripped.

Deposition testimony of Appellees’ employees showed that the pallets were placed

as they were so that the beer on the pallets could be monitored to prevent theft.

Appellant contended that a safer location for the pallets would have been next to

the entry door against the wall of the premises.

      In the past, this court has looked to the Restatement (Second) of Torts

section 343A in analyzing legal principles of premises liability. Lynch, 489 So. 2d

at 66; Ahl v. Stone Southwest, Inc., 666 So. 2d 922 (Fla. 1st DCA 1995); Moultrie

v. Consol. Stores Int’l Corp., 764 So. 2d 637 (Fla. 1st DCA 2000). Subsection (1)

of section 343A states, “A possessor of land is not liable to his invitees for physical

harm caused to them by any activity or condition on the land whose danger is

known or obvious to them, unless the possessor should anticipate the harm despite

such knowledge or obviousness.” Comment f to this subsection states:

            There are, however, cases in which the possessor of land can
      and should anticipate that the dangerous condition will cause physical
      harm to the invitee notwithstanding its known or obvious danger. In
      such cases the possessor is not relieved of the duty of reasonable care
      which he owes to the invitee for his protection. This duty may require
      him to warn the invitee, or to take other reasonable steps to protect
      him, against the known or obvious condition or activity, if the
      possessor has reason to expect that the invitee will nevertheless suffer
      physical harm.
            Such reason to expect harm to the visitor from known or
                                          22
      obvious dangers may arise, for example, where the possessor has
      reason to expect that the invitee’s attention may be distracted, so that
      he will not discover what is obvious, or will forget what he has
      discovered, or fail to protect himself against it. Such reason may also
      arise where the possessor has reason to expect that the invitee will
      proceed to encounter the known or obvious danger because to a
      reasonable man in his position the advantages of doing so would
      outweigh the apparent risk. In such cases the fact that the danger is
      known, or is obvious, is important in determining whether the invitee
      is to be charged with contributory negligence, or assumption of
      risk. . . . It is not, however, conclusive in determining the duty of the
      possessor, or whether he has acted reasonably under the
      circumstances.

      The Restatement comments are consistent with Florida law that even when

there is an open and obvious hazard, “liability can still attach when the landowner

or possessor should have anticipated the possibility of injury resulting from the

hazard.” Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So. 3d 120,

123 (Fla. 2d DCA 2015).        In Cook, the court reversed a grant of summary

judgment where the plaintiff had tripped over an obvious pipe in a walkway. Id.

The court in Cook noted “while injuries caused by a condition that is not

‘dangerous’ do not give rise to liability due to failure to maintain the premises in a

reasonably safe condition . . . whether the exposed pipe was a ‘dangerous

condition’ in the context of foreseeability is a question to be answered by the jury.”

Id. (citations omitted).    Applying Cook and the various cases it cites, the

determination here of whether the pallets and pallet jack were a “dangerous

condition” such that Appellees should have anticipated the possibility of

                                         23
Appellant’s injury is a question of fact for the jury.

      I believe the situation here is similar to other cases where a material issue of

fact as to the possessor of the premises’ duty to maintain the premises remained

when a customer tripped on an open and obvious object. See De Cruz-Haymer v.

Festival Food Market, Inc., 117 So. 3d 885 (Fla. 4th DCA 2013) (open and obvious

rumbled door mat); Skala v. Lyon Heritage Corp., 127 So. 3d 814 (Fla. 2d DCA

2013) (obvious construction debris); Burton v. MDC PGA Plaza Corp., 78 So. 3d

732 (Fla. 4th DCA 2012) (pothole known to plaintiff); Taylor v. Tolbert Enters.

Inc., 439 So. 2d 991 (Fla. 1st DCA 1983) (sand and water accumulated on steps

and walkway known to plaintiff). In all of these cases summary judgment was

reversed because material issues of fact remained regarding the possessor’s duty to

maintain the premises in a reasonably safe condition.

      The majority attempts to distinguish our decision in Lomack, but I

respectfully fail see to how it differs. Like here, the trial court’s order in Lomack

was “grounded on a finding that appellees had no duty to warn” but did not analyze

the duty to maintain the premises. 14 So. 3d at 1092. We reversed the summary

judgment for the landowners in Lomack noting that “an invitee’s knowledge of a

danger is normally not a complete bar to recovery, but rather triggers the

application of comparative negligence principles.” Id. I fail to see how the

exposed computer cable in an office which the appellant in Lomack had traversed

                                          24
at least a hundred times would implicate a duty to maintain a premises but pallets

temporarily placed adjacent to the entry and exit of a premises, and between the

premises and its parking lot, do not.

      I do not believe that Appellees have carried their burden to show no disputed

issues of material fact remain for summary judgment on the issue of their duty to

maintain the premises. For the above reasons, I respectfully dissent from the

portion of the majority opinion which holds Appellees had no duty to maintain the

premises. I would remand the case back to the trial court for further proceedings.




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