              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



CYNTHIA COOK,                                )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D14-2392
                                             )
BAY AREA RENAISSANCE FESTIVAL                )
OF LARGO, INC., a foreign corporation,       )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 8, 2015.

Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.

David M. Bulluck of Bulluck Law Group,
Temple Terrace, for Appellant.

Mark D. Tinker and Charles W. Hall of
Banker Lopez Gassler P.A., St. Petersburg,
for Appellee.



VILLANTI, Chief Judge.


             Cynthia Cook appeals an order granting summary judgment in favor of

Bay Area Renaissance Festival. Because a genuine issue of material fact exists as to
whether Bay Area was exercising control of the area in which Cook was injured and

because the foreseeability of the accident in this case was a jury question, we reverse.

              Upon her arrival at a renaissance festival hosted by Bay Area, Cook was

directed by festival volunteers to park in an overflow parking lot. There was an unpaved

walkway on a patch of city-owned land between the festival grounds and this overflow

lot. Between the unpaved walkway and the entrance to the festival, a police officer

directed traffic and helped attendees cross the road. After attending the festival and

while on her way back to the overflow lot, Cook tripped on an exposed pipe on the

unpaved walkway, cutting her foot. There was nothing obstructing Cook's view of the

exposed pipe, and other attendees, including her husband, had attempted to warn Cook

of the pipe immediately before she was injured. Following this mishap, and without

seeking permission from the landowner, a Bay Area employee removed the pipe.

              Cook filed suit, alleging Bay Area was negligent in not maintaining the

property in a safe condition. During depositions of Cook and her husband, there was

conflicting testimony concerning whether a volunteer at the festival directed them to use

the unpaved walkway. Bay Area moved for summary judgment, arguing that there was

no proof that it had control over the premises where Cook injured herself. The trial court

granted Bay Area's motion and entered final summary judgment for Bay Area.

              This court reviews summary judgment using a de novo standard. Volusia

Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary

judgment is proper only if: (1) there is no genuine issue of material fact, and (2) the

moving party is entitled to a judgment as a matter of law. Id. " 'If the record reflects the

existence of any genuine issue of material fact, or the possibility of any issue, or if the




                                            -2-
record raises even the slightest doubt that an issue might exist, summary judgment is

improper.' " Schmidt v. State Farm Mut. Ins. Co., 750 So. 2d 695, 698 (Fla. 2d DCA

2000) (quoting Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA

1979)).

              Cook first argues that summary judgment was improper because a

genuine issue of material fact exists concerning whether Bay Area had control over the

unpaved walkway where her injury occurred. In determining premises liability, the

party's ability to exercise control over the premises is the relevant question; ownership

of and title to the premises are irrelevant. Metsker v. Carefree/Scott Fetzer Co., 90 So.

3d 973, 977 (Fla. 2d DCA 2012). A party "who assumes control over the premises in

question, no matter under what guise, assumes also the duty to keep them in repair."

Id. (quoting Arias v. State Farm Fire & Cas. Co., 426 So. 2d 1136, 1138 (Fla. 1st DCA

1983)). Here, there was ample deposition testimony to establish that Bay Area was in

fact using the adjacent lot for overflow parking, and there was conflicting deposition

testimony on whether Bay Area intended its invitees to use the unpaved area as a

walkway to the entrance of the festival grounds. Further, there was undisputed

evidence that Bay Area employees took action to remove the pipe from the unpaved

area after Cook's injury without first seeking permission or approval from the landowner.

These facts all combine to suggest that Bay Area exercised control over the relevant

premises, which created a question of fact for the jury that precludes summary

judgment. See Goss v. Human Servs. Assocs., Inc., 79 So. 3d 127, 131 (Fla. 5th DCA

2012).




                                           -3-
              Bay Area now argues in the alternative that even if it exercised control

over the premises, because the exposed pipe was open and obvious, it had no duty to

warn Cook of the hazard. See Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206

(Fla. 5th DCA 2012). And contrary to Cook's assertions, the fact that Bay Area, as the

appellee, did not raise this argument below does not prevent Bay Area from raising it on

appeal. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla.

1999) (holding that "the appellee can present any argument supported by the record

even if not expressly asserted in the lower court"). But even when a hazard is open and

obvious, a landowner or possessor can still be held liable for failing "to exercise

reasonable care to prevent foreseeable injury" to invitees. Ashcroft v. Calder Race

Course, Inc., 492 So. 2d 1309, 1312 (Fla. 1986). Likewise, when the presence of the

hazard is actually known to the injured party, as Bay Area asserts was the case here

due to the warnings Cook received about the pipe, liability can still attach when the

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

the hazard. See Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 576-77 (Fla. 5th DCA

2005) (finding that "an owner or possessor of land is not liable for injuries to an invitee

caused by a dangerous condition on the premises when the danger is known or obvious

to the injured party, unless the owner or possessor should anticipate the harm despite

the fact that the dangerous condition is open and obvious"). Thus, the question of

foreseeability of injury is one typically reserved for the jury. See Stewart v. Boho, Inc.,

493 So. 2d 95, 97 (Fla. 4th DCA 1986) (noting that "Florida law embodies a strong

preference for the resolution of forseeability issues in negligence cases by a jury"). And

whether the gratuitous warnings given Cook of an alleged open and obvious condition




                                            -4-
were sufficient to absolve Bay Area from liability is also a jury question. Finally, 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, see Wolf v. Sam's E., Inc.,

132 So. 3d 305, 307-08 (Fla. 4th DCA), review denied, 151 So. 3d 1231 (Fla. 2014),

whether the exposed pipe was a "dangerous condition" in the context of foreseeability is a

question to be answered by the jury. See De Cruz-Haymer v. Festival Food Mkt., Inc., 117

So. 3d 885, 888 (Fla. 4th DCA 2013) (citing Aaron, 908 So. 2d at 578).

              Because genuine issues of material fact existed, Bay Area was not

entitled to summary judgment as a matter of law.

              Reversed and remanded.



SILBERMAN and LUCAS, JJ., Concur.




                                             -5-
