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In Doering v. The Villages, 40 Fla. L. Weekly D49a (Fla. 5th DCA Dec. 19, 2014), the 5th DCA held that there were genuine issues of material fact as it pertained to the cause of Diane Doering's fall being the result of a common design element or poor maintenance.

Doering was walking on a large wharf-like wooden deck owned by The Villages during a well-attended Mardi Gras festival. While searching for a place to sit, Doering tripped over a raised wooden plank, suffering a broken left femur.

Doering alleged that The Villages had breached its duty to warn her of the dangerous condition and its duty to maintain the deck in a reasonably safe condition. The Villages claimed that the deck and boards were the result of a common design element or theme and not due to poor maintenance. It also alleged that the condition was open and obvious and, therefore, there could be no breach of duty. The trial court agreed and granted summary judgment in favor of The Villages.

The Villages asserted that the deck was "not designed to be a flat surface" and that the boards were "rough and uneven to accomplish the wharf theme", a common design element. The 5th DCA, not necessarily agreeing with that assertion, held that there was conflicting evidence that the end of the board in question had completely rotted and warped. The board may have warped upwards ½" to 1½" above the deck's surface. The Villages' corporate representative acknowledged that wooden boards can rot and warp over time creating a tripping hazard.

Doering presented additional evidence that the board constituted a building code violation because an elevation change over ¼" is required to be beveled. Therefore, the 5th DCA held that there was a genuine issue of material fact as to whether the fall had been caused by a common design element or was the result of poor maintenance.

The 5th DCA also noted there was a genuine issue of material fact as to whether the raised plank had been open and obvious. Although Doering admitted it was open and obvious when looking at a photograph, she testified that during the festival there were many people around and, therefore, she could not see it. Doering's expert testified that the change in elevation would have been in Doering's low peripheral vision which would not have been visualized based upon the blended brown surface of the deck.


 

This summary was prepared by Paul Fulmer of our firm.


Paul Fulmer

 

 


40 Fla. L. Weekly D49a

 

Torts -- Premises liability -- Trip and fall -- Error to enter summary judgment for defendant in action alleging that plaintiff tripped over a raised wooden plank while walking on a large wharf-like deck owned by defendant on the basis that the cause of the fall was a common design element where there was factual issue as to whether the cause of plaintiff's fall was a common design element or the result of poor maintenance

DIANE DOERING, Appellant, v. THE VILLAGES OPERATING COMPANY, Appellee. 5th District. Case No. 5D13-3021. Opinion filed December 19, 2014. Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge. Counsel: Bryan S. Gowdy, and Jennifer Shoaf Richardson, of Creed & Gowdy, P.A., Jacksonville, and Timothy S. Babiarz, of Babiarz Law Firm, P.A., The Villages, for Appellant. Joseph T. Patsko, of Austin Roe & Patsko, P.A., Tampa, for Appellee.

(LEBLANC, B., Associate Judge.) Appellant, Diane Doering, timely appeals the trial court's summary final judgment in favor of Appellee, The Villages Operating Company ("The Villages"). Because we find there are disputed questions of material fact to be determined by a fact finder, we reverse.

While walking on a large wharf-like wooden deck owned by The Villages during a well-attended Mardi Gras festival, Appellant tripped over a raised wooden plank and suffered a broken left femur. She claimed The Villages breached its duty to warn her of the dangerous condition and its duty to maintain the deck at all times in a reasonably safe condition. The Villages claimed that the cause of the fall was a common design element, not the result of poor maintenance. In addition, The Villages claimed by an affirmative defense that the condition was an open and obvious condition and therefore no duty was breached. The trial court agreed with The Villages and granted summary judgment.

A trial court's decision to grant final summary judgment is reviewed de novo. If this court finds the lack of any genuine material issue of fact, summary judgment should be affirmed. If it appears in the record that there are disputed issues of material fact, summary judgment must be reversed. Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So. 2d 303 (Fla. 5th DCA 2003).

The Villages asserts that the deck Appellant was walking on was "not designed to be a flat surface" and included "boards that were rough and uneven to accomplish the wharf theme aesthetic." We do not find evidence to support this assertion, but even if such evidence exists, conflicting evidence was presented that the end of the board in question was in very bad condition -- completely rotted and warped upward between one-half inch and one and one-half inches above the deck's surface. The Villages' representative was aware that wooden deck boards could rot and warp over time, creating a tripping hazard. Additional evidence was presented that the board constituted a building code violation because any elevation changes over a quarter inch were required to be beveled. Thus, a genuine issue of fact existed as to whether the cause of Appellant's fall was a common design element or the result of poor maintenance. See, e.g., Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005) (noting that the "obvious danger doctrine does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition").1

REVERSED AND REMANDED. (PALMER and WALLIS, JJ., concur.)

__________________

1. Although unnecessary to our resolution of this case, we also believe a genuine issue of material fact existed as to whether the raised plank was open and obvious. Although Appellant testified that the raised plank was open and obvious when confronted with a close-up photo of it, she also testified that at the time she fell, thousands of people were at the festival. There were people "all around" and she was "scanning the area" for a place to sit down as she walked. Doering's expert witness also testified that "the change in elevation would have been in [Appellant's] lower peripheral vision which cannot adequately visualize blending color surfaces, e.g., brown and brown, if one is normally 'looking straight ahead.' "

 



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