HOGAN v. CHUPKA

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Docket Number

No. 90-1542.

Attorney(S)

Hershoff Levy, Jay M. Levy, Eric B. Sandler, and Robert L. Gardana, Miami, for appellants. Buschbom, Panter Panter, and Ronald L. Buschbom, Miami, for appellee.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Plaintiffs below, including Joyce Hogan, brought a personal injury action against Pauline Chupka, the owner of a convenience store. Hogan alleged she was injured when she fell from a sidewalk onto the asphalt parking lot outside Chupka's store. The injury allegedly resulted from a dangerous condition: the edge of the sidewalk was broken, uneven, and negligently maintained or constructed, and the parking lot blacktop fell short of meeting the sidewalk, creating a hazardous gully. The trial court entered a final summary judgment against the plaintiffs, finding the sidewalk condition to be open and obvious and not negligent. The plaintiffs appealed this summary judgment.

Legal Issues Presented

Whether the open and obvious condition of the sidewalk edge and parking lot gully discharged the landowner’s duty to maintain the premises in a reasonably safe condition.
Whether the combination of a floor level change with accompanying hazardous conditions can constitute a dangerous condition sufficient to preclude summary judgment.
Whether summary judgment was appropriate given the alleged hazardous condition and the duty of the landowner to protect invitees despite open and obvious conditions.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980)	Landowner’s duty to maintain premises in reasonably safe condition despite open and obvious hazards.	Supports the principle that open and obvious conditions do not eliminate the duty to maintain safety.
Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989 (Fla. 2d DCA 1980)	Duty to maintain premises in safe condition.	Reinforces duty of ordinary care in premises maintenance.
Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA), cert. denied, 348 So.2d 946 (Fla. 1977)	Duty to use ordinary care in keeping premises safe.	Confirms landowner’s maintenance duties.
Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)	Apportioning liability according to fault.	Supports the philosophy behind imposing maintenance duties despite obvious hazards.
Spaulding v. City of Melbourne, 473 So.2d 226 (Fla. 5th DCA 1985)	Existence of genuine issue of material fact precluding summary judgment where plaintiff fell on broken sidewalk.	Analogous fact situation supporting reversal of summary judgment.
Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980)	Landowner’s duty to maintain premises safely.	Supports the duty to maintain safe conditions.
Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983)	Change in floor levels alone generally not dangerous.	Establishes that floor level changes without more do not constitute negligence.
Casby v. Flint, 520 So.2d 281 (Fla. 1988)	Floor level changes and accompanying circumstances may create dangerous conditions.	Supports that accompanying hazardous conditions can preclude summary judgment.
Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990)	Floor level changes and premises liability.	Referenced for principle that floor level changes alone generally do not establish negligence.
Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA 1990)	Premises liability for floor level changes.	Supports precedent about floor level changes.
Northwest Florida Crippled Children's Ass'n v. Harigel, 479 So.2d 831 (Fla. 1st DCA 1985)	Whether distracting conditions and failure to exercise reasonable care create jury questions.	Supports that factual questions preclude summary judgment.
Quinn v. I.C. Helmly Furniture Co., 141 So.2d 302 (Fla. 3d DCA 1962)	Premises liability for hazardous condition created by defendant’s property features.	Demonstrates that liability issues may not be resolved on summary judgment.
Levy v. Home Depot, Inc., 518 So.2d 941 (Fla. 3d DCA 1987)	Premises liability when risks are not reasonably expected and invitee may not be aware.	Supports that landowners may owe heightened duties despite obvious conditions.

Court's Reasoning and Analysis

The court analyzed the nature of the sidewalk and parking lot conditions, noting that while open and obvious hazards may relieve a landowner from a duty to warn, they do not eliminate the duty to maintain the premises in a reasonably safe condition. The court explained that a mere change in floor level typically does not constitute a dangerous condition warranting liability. However, when accompanied by additional hazardous features—such as an uneven, worn step-off and a gully adjacent to the sidewalk—such conditions may create a genuine issue of material fact. This precludes summary judgment because it is possible for a jury to find that the landowner breached the duty of care. The court also referenced legal principles emphasizing apportionment of fault and the possibility that an invitee may not appreciate a hazard due to circumstances, requiring the landowner to take additional precautions. Given the evidence presented, the court concluded that summary judgment was inappropriate and remanded the case for further proceedings.

Holding and Implications

The final summary judgment entered against the plaintiffs is reversed, and the case is remanded for further proceedings consistent with the court's opinion.

The direct effect of this decision is to allow the plaintiffs’ personal injury claim to proceed beyond summary judgment, recognizing that the alleged hazardous condition may impose liability on the landowner despite the open and obvious nature of the hazard. The opinion does not establish new precedent but applies existing Florida premises liability principles to the facts of this case.

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JOYCE HOGAN, ET AL., APPELLANTS, v. PAULINE CHUPKA, APPELLEE.

PER CURIAM.

Plaintiffs below appeal final summary judgment entered against them in a personal injury action brought against the owner of a convenience store. We reverse and remand.

Joyce Hogan was allegedly injured when she fell from a sidewalk onto the asphalt parking lot outside the store owned by Pauline Chupka. Hogan alleged that Chupka breached her duty by permitting a dangerous condition to exist on the subject premises in that the edge of the sidewalk leading to the parking lot was broken and uneven, and negligently maintained and/or constructed. Furthermore, she alleged the blacktop of the parking lot in front of the store fell some inches short of meeting the sidewalk, thus creating a hazardous gully where, upon exiting Chupka's store with purchases in hand, Hogan got her foot stuck, retarding her ability to regain her balance once she had tripped off the uneven sidewalk step.

The trial court found the edge of the sidewalk to be an open and obvious condition. The court found any chipping on the step so innocuous as not to change a non-negligent condition into a negligent one as the worn area was also open and obvious.

While the open and obvious nature of a hazard may discharge a landowner's duty to warn, it does not discharge the landowner's duty to maintain the property in a reasonably safe condition. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980); see also Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989 (Fla. 2d DCA 1980); Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA) (duty to use ordinary care in keeping premises in safe condition), cert. denied, 348 So.2d 946 (Fla. 1977). Furthermore, recognizing such a duty is consistent with the philosophy of Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), apportioning liability according to fault. See Spaulding v. City of Melbourne, 473 So.2d 226 (Fla. 5th DCA 1985) (where plaintiff fell on broken sidewalk there existed genuine issue of material fact precluding summary judgment as to breach of city's duty to keep sidewalk in reasonably safe condition); Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980).

A change in floor levels alone generally does not constitute a dangerous condition. Summary judgment in a premise owner's favor is proper where a plaintiff's allegation of negligence is based solely upon such level changes. See Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983); see also Casby v. Flint, 520 So.2d 281 (Fla. 1988); Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990); Aventura Mall Venture v. Olson, 561 So.2d 319 (Fla. 3d DCA 1990).

However, accompanying circumstances, in the instant case the allegedly worn and uneven step-off and the gully below, may transform a floor level change into a dangerous condition requiring action by the premise owner. Evidence of such a condition creates a question of fact precluding summary judgment. See Casby, 520 So.2d at 282; Northwest Florida Crippled Children's Ass'n v. Harigel, 479 So.2d 831 (Fla. 1st DCA 1985) (whether step-down over which a display rack was extended, possibly distracting shoppers and whether shoppers exercised reasonable care held to be questions for the jury precluding summary judgment). See also Quinn v. I.C. Helmly Furniture Co., 141 So.2d 302 (Fla. 3d DCA 1962) (liability of premise owner to injured pedestrian who fell on sidewalk made slippery by discharge from defendant's visible downspout could not properly be resolved on summary judgment).

Where the premise occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding the invitee's knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. Levy v. Home Depot, Inc., 518 So.2d 941 (Fla. 3d DCA 1987). "This is true, for example, where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it." Id. at 943 citing Prosser Keeton, The Law of Torts, § 61 (5th ed. 1984). See Restatement of Torts (Second) § 343A (1965).

Accordingly, because the evidence was not such as to preclude the finding of the store owner's breach of the duty to keep the sidewalk and step-down in reasonably safe condition, the final summary judgment is reversed and the cause remanded for further proceedings consistent herewith.