        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               MARY LEON,
                                Appellant,

                                      v.

                   EDWARD PENA and SORIS PARAJON,
                             Appellees.

                              No. 4D18-2071

                              [June 12, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. CACE17-
018943-02.

   Alexander Annunziato of Wolfson Law Firm, LLP, Miami, and Douglas
F. Eaton of Eaton & Wolk, PL, Miami for appellant.

  Nicole Smith of Rumberger, Kirk & Caldwell, Tallahassee and H. Jacey
Kaps of Rumberger, Kirk & Caldwell, Miami, for appellees.

KLINGENSMITH, J.

    For almost ten years, appellant Mary Leon traversed an area in her
condominium complex with a broken sidewalk. She did this fully aware
of the damage to the pathway, never taking special care to avoid it, and
always without incident. That is, until the day she lost her footing and fell
over that portion of fractured concrete. Then she sued her landlords
Edward Pena and Soris Parajon for injuries from her fall, alleging failure
to warn and failure to maintain the premises. The trial court granted
summary judgment in favor of the landlords on all claims based on Leon’s
undisputed knowledge of the path’s condition, its open and obvious
nature, and her assumption of the risk. For the reasons set forth below,
we affirm in part and reverse in part.

   Leon testified at deposition that she first noticed a crack in the sidewalk
when she moved into the premises almost a decade ago. This damaged
section continued to deteriorate over time and gradually expanded. She
admitted that the broken portion of the path was noticeably inconsistent
with the rest of the well-maintained yard, that she was well aware of it the
day she fell and knew there were safer alternatives than walking across
that particular area.

    When the landlords moved for summary judgment, Leon argued that
there remained genuine issues of material fact regarding the obviousness
of the dangerous condition that caused her injuries, and that the landlords
breached their duty to maintain the premises because they knew about
the sidewalk’s condition but failed to undertake any repairs. Leon
countered the motion with her own affidavit, stating she complained of the
damaged pathway to the landlords, and they agreed to fix it but failed to
do so. She also alleged that she offered to repair the broken section herself,
but this offer was refused. While Leon admitted that she knew the
pathway needed repair, she claimed she did not know of the concealed
danger that caused the crack to suddenly crumble under her feet.

   At the hearing, the trial court entered summary judgment in favor of
the landlords and stated:

      It’s pretty clear from the plaintiff’s affidavit, it very much
      establishes that this was open and obvious to the plaintiff,
      that it was in need of repair, that this was a damage situation,
      present from day one of the lease; and therefore, being open
      and obvious, being apparent, I think this tenant assumed that
      risk and they continued to walk on it, despite knowing that it
      was dangerous. Therefore, the motion is granted.

This appeal follows.

   The standard of review for an order granting summary judgment is de
novo. See Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 733 (Fla. 4th
DCA 2012).

   “A landowner or occupier owes an invitee two independent duties: (1)
to maintain the premises in a reasonably safe condition, and (2) to give
warning of concealed perils.” Id. at 734; see Wolford v. Ostenbridge, 861
So. 2d 455, 456 (Fla. 2d DCA 2003) (recognizing that these two duties are
“distinct”); Lynch v. Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986)
(recognizing that these two duties are “alternative”). In addition to alleging
negligence based on breach of the duty to warn of the alleged dangerous
condition, Leon also alleges the landlords breached their duty to maintain
the premises in reasonably safe condition. The fact that Leon claims a
breach of both duties is significant. See Aaron v. Palatka Mall, L.L.C., 908
So. 2d 574, 578 (Fla. 5th DCA 2005).


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    The open and obvious danger doctrine provides 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 those
injuries. See id. at 576-77. In other words, the possessor of land may
“assume that the invitee will perceive that which would be obvious to them
upon the ordinary use of their own senses.” Krol v. City of Orlando, 778
So. 2d 490, 493 (Fla. 5th DCA 2001); see also Burton, 78 So. 3d at 734.

   But while the obvious danger doctrine may discharge the duty to warn
in certain circumstances, it does not automatically discharge the
landowner’s duty to maintain the premises:

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

Pittman v. Volusia Cty., 380 So. 2d 1192, 1193-94 (Fla. 5th DCA 1980)
(footnotes omitted); see also Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214,
1216 (Fla. 4th DCA 2007) (“A plaintiff’s knowledge of a dangerous
condition . . . simply raises the issue of comparative negligence and
precludes summary judgment.”).

    In an analogous case, Lotto v. Point E. Two Condo. Corp., 702 So. 2d
1361, 1361 (Fla. 3d DCA 1997), plaintiff tripped and fell on a cracked and
partially uneven sidewalk she had walked over many times. She sued the
condominium association for negligence, alleging breach of both the duty
to warn of the sidewalk’s dangerous condition and the duty to maintain
the cracked sidewalk in reasonably safe condition. Id. The condominium
association acknowledged that the particular stretch of sidewalk had been
in the same cracked, deteriorated condition for years, but claimed that the
sidewalk’s condition was not unreasonably dangerous and was so obvious
that the association had no duty to warn plaintiff. Id. The trial court
granted summary judgment in favor of the condominium association. Id.



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   On appeal, the Third District agreed the association did not have a duty
to warn plaintiff of the sidewalk’s condition under the circumstances—
plaintiff had walked over the same stretch of cracked sidewalk several
times previously and knew of its condition. Id. at 1362. Nevertheless, the
court reversed the judgment based on the duty to maintain the premises:

         Here we are dealing with one of the sidewalks provided for
      the use of condominium residents on the condominium
      grounds. 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.

Id.; see also Burton, 78 So. 3d at 735 (“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; it is a portion of pavement that
has fallen into disrepair. A pothole’s obvious nature does not make it, as
a matter of law, a reasonably safe condition.” (citation omitted)).

   As in Lotto, the trial court granted summary judgment because Leon
“assumed the risk” by continuing to use the cracked pathway despite her
awareness of its deteriorating condition. Leon’s knowledge, however,
merely raised an issue of fact as to her own comparative negligence. See
Burton, 78 So. 3d at 734. While the trial court properly entered summary
judgment in favor of the landlords as to the duty to warn, it erred in
granting summary judgment on the issue of failure to maintain. We
remand this case for further proceedings on that issue.

   Affirmed in part; reversed in part and remanded.

MAY and CIKLIN, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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