LOTTO v. POINT EAST TWO CONDO. CORP

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Docket Number

No. 97-869.

Attorney(S)

Ronald S. Guralnick, Miami, for appellants. Josephs, Jack Gaebe and Helen Leen Miranda, and Todd R. Ehrenreich, Coral Gables, for appellee.

Judges

COPE, Judge.

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Smart Summary

Factual and Procedural Background

Edith Lotto, a resident at Point East Two Condominium, tripped and fell on a cracked and uneven exterior sidewalk located on the condominium grounds. She filed suit against the condominium association alleging negligence in failing to maintain the sidewalk in a reasonably safe condition and for failing to warn her of its condition. Albert Lotto, her husband, claimed loss of consortium. During discovery, it was established that Edith Lotto had regularly walked over this same section of sidewalk more than fifty times before the incident. The condominium association acknowledged the sidewalk had been in a deteriorated condition for over three years but contended that it was not unreasonably dangerous and that it owed no duty to warn because the condition was obvious. The trial court granted summary judgment in favor of the condominium association, dismissing the claims, which prompted this appeal.

Legal Issues Presented

Whether the condominium association owed a duty to warn the plaintiff of the obviously cracked and uneven sidewalk condition.
Whether the obviousness of the sidewalk's condition relieved the condominium association of its duty to repair the sidewalk.
Whether summary judgment was appropriate given the factual circumstances surrounding the sidewalk's condition and the plaintiff's knowledge thereof.

Arguments of the Parties

Appellants' Arguments

The condominium association was negligent in failing to maintain the sidewalk in a reasonably safe condition.
The association failed to warn Edith Lotto of the dangerous condition of the sidewalk.

Appellee's Arguments

The sidewalk's cracked and uneven condition was obvious and had existed for more than three years.
The association was not negligent in failing to repair the sidewalk.
There was no duty to warn the plaintiff because she was aware of the condition due to her repeated use of the sidewalk.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986)	Established that a land possessor is not liable for known or obvious dangers unless harm is foreseeable despite that knowledge (Restatement (Second) of Torts § 343A).	The court applied this principle to conclude that although the danger was obvious, the condominium association could still be liable if it should have anticipated harm despite the obviousness.
Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991)	Supports the idea that a landowner may have a duty to anticipate harm from obvious conditions under certain circumstances.	Referenced to underscore that factual issues remain whether the association should have anticipated harm to residents despite the obvious sidewalk condition.

Court's Reasoning and Analysis

The court acknowledged that the condominium association did not owe a duty to warn Edith Lotto because she was familiar with the sidewalk's condition due to her frequent use. However, the court emphasized that the obviousness of a dangerous condition does not eliminate the possessor’s duty to repair it if harm is foreseeable despite that knowledge, citing Ashcroft v. Calder Race Course, Inc. and the Restatement (Second) of Torts § 343A. The court noted that the sidewalk was provided for residents’ use and that the association had actual knowledge of the deteriorated condition for over three years. Therefore, a genuine issue of material fact existed as to whether the association should have anticipated harm to residents like Edith Lotto. Because these factual issues were unresolved, summary judgment was inappropriate. The court also noted that the plaintiff’s awareness of the condition could raise a comparative negligence defense, but that did not justify summary judgment at this stage.

Holding and Implications

The court REVERSED the summary final judgment entered in favor of the condominium association and REMANDED the case for further proceedings consistent with its opinion. The direct effect is that the plaintiff’s negligence claims will proceed to trial or further litigation. No new legal precedent was established beyond affirming the application of existing tort principles regarding known or obvious dangers and the duty to repair.

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Edith LOTTO and Albert Lotto, Appellants, v. POINT EAST TWO CONDOMINIUM CORPORATION, INC., Appellee.

COPE, Judge.

Edith and Albert Lotto appeal an adverse summary final judgment in a slip and fall case. We reverse.

Plaintiff-appellant Edith Lotto resides at the Point East Two Condominium. She tripped and fell on a portion of an exterior sidewalk which is cracked and partially uneven. She sued the appellee condominium association for negligence in failing to maintain the sidewalk in a reasonably safe condition, and for failure to warn her of the condition of the sidewalk.

Appellant Albert Lotto made a claim for loss of consortium.

At deposition, plaintiff admitted that she regularly walked for exercise, and had walked over this same stretch of sidewalk more than fifty times previously. The photographs show that the sidewalk segment is severely cracked and somewhat uneven. The condominium association acknowledged that this stretch of sidewalk had been in the same cracked and deteriorated condition for over three years, but took the position that it was not unreasonably dangerous and that there was no negligence in the association's failure to repair it. The association argued that it had no duty to warn plaintiff of the condition of the sidewalk because the deteriorated condition was obvious. The trial court granted summary judgment in the association's favor, and this appeal follows.

We agree that the association did not owe a duty to warn plaintiff of the condition of the sidewalk under the circumstances present here. Plaintiff had walked over the same stretch of sidewalk many times previously, and knew its condition.

However, we do not think that the obviousness of the condition relieved the condominium association of the duty to repair it. In Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla. 1986), the court invoked section 343A of the Restatement (Second) of Torts (1966), which states:

Known or Obvious Dangers

(1) 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.

492 So.2d at 1312 (emphasis supplied in Ashcroft decision). Elsewhere the Ashcroft court also said, "`In any case where the occupier [of land] as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.'" 492 So.2d at 1311 (quoting Prosser Keaton, Law of Torts § 61 (5th ed. 1984)).

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. See Hogan v. Chupka, 579 So.2d 395, 396 (Fla. 3d DCA 1991).

We conclude that summary judgment should not have been entered. Because the plaintiff was thoroughly familiar with the condition of the sidewalk, her decision to proceed to encounter the risk does, of course, raise the question whether she was comparatively negligent. The summary judgment is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.