DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
MELANIE CHADWELL NORRIS,
Appellant,
v.
ALAN RODRIGUEZ and FLORA RODRIGUEZ,
Appellees.
No. 2D22-1457
December 29, 2023
Appeal from the Circuit Court for Hillsborough County; Anne-Leigh
Gaylord Moe, Judge.
Raymond N. Seaford of Law Office of Raymond N. Seaford, P.A., Tampa,
for Appellant.
Kansas R. Gooden of Boyd & Jenerette, P.A., Miami; Lara J. Edelstein of
Boyd & Jenerette, P.A., Boca Raton; and Amy Prevatt of Segundo Law
Group, St. Petersburg, for Appellees.
SMITH, Judge.
Melanie Chadwell Norris appeals the trial court's entry of final
summary judgment in favor of Alan Rodriguez1 in this premise liability
action. Ms. Norris sustained injuries after she tripped and fell on the
1 The lawsuit also names Mr. Rodriguez's deceased wife, Flora
Rodriguez, as a party defendant.
elevated apron of Mr. Rodriguez's concrete driveway and claimed that she
was a public invitee because she fell in the portion of the driveway
located within a public right-of-way.2 Because the trial court properly
categorized Ms. Norris as an uninvited licensee, to whom Mr. Rodriguez
owed no duty to warn of open and obvious dangers, we affirm.
After returning home from a movie, Ms. Norris walked across the
street from her boyfriend's house while her boyfriend got their dog for a
walk. This was at night, and it was dark outside. After crossing the
street, Ms. Norris attempted to cross over Mr. Rodriguez's property to
access a public sidewalk. She allegedly tripped over the corner of the
apron of the driveway where the concrete was broken and raised and
sustained injuries. Ms. Norris sued Mr. Rodriguez for her injuries,
alleging she was a public invitee on the property and that Mr. Rodriguez
owed her a duty to warn of dangers that he knew or should have known
about, and that he owed her a duty to use reasonable care in
maintaining his property in a reasonably safe condition. See Freeman v.
Bellsouth Telecomm., Inc.,
954 So. 2d 45, 46 (Fla. 1st DCA 2007).
Both parties moved for summary judgment on liability, and the
trial court granted final summary judgment in favor of Mr. Rodriguez,
finding that Ms. Norris was "at best" an uninvited licensee when she
entered Mr. Rodriguez's property as a matter of her own convenience to
2 The parties dispute whether Mr. Rodriguez or Hillsborough
County has ownership and control over the subject property where Ms.
Norris tripped and fell. There is, however, no dispute that Mr. Rodriguez
obtained a permit to install the driveway. Prior to the cross motions for
summary judgment on liability, on October 6, 2021, the trial court
entered an order denying Mr. Rodriguez's motion for summary judgment
for lack of control over the property, finding that "there exists a genuine
issue of material fact as to [Mr. Rodriguez's] ownership and control over
the location on his driveway where the accident occurred." This issue is
not before us, and we need not resolve this issue in deciding this appeal.
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access the sidewalk. See Lukancich v. City of Tampa,
583 So. 2d 1070,
1072 (Fla. 2d DCA 1991) ("An owner or controller of property must
refrain from wanton negligence or wilful [sic] misconduct which would
injure an uninvited licensee, must refrain from intentionally exposing the
uninvited licensee to danger, and must warn an uninvited licensee of a
defect or condition known to the owner or controller of the land when the
danger is not open to ordinary observation by the licensee (citing Collom
v. Holton,
449 So. 2d 1003, 1005 (Fla. 2d DCA 1984))).
We review the trial court's order granting final summary judgment
de novo. See Limones v. Sch. Dist. of Lee Cnty.,
161 So. 3d 384, 390 (Fla.
2015). Under the new summary judgment rule, summary judgment may
be granted where "there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fla. R. Civ. P.
1.510(a) (2021). The determination of Ms. Norris' status as a "public
invitee" or "uninvited licensee" may be decided as a matter of law or by a
jury depending upon the facts of the case. See Wood v. Camp,
284 So.
2d 691, 696 (Fla. 1973).
In Florida, the duty of care owed by a landowner is not a one-size-
fits-all analysis and depends upon the "relationships involved between
persons who come upon an owner's property."
Id. at 695.
Visitors upon the private property of others fall within
one of three classifications: they are either trespassers,
licensees, or invitees. The classification is important because
it determines the duty of care owed the visitor by [t]he
property owner or occupier. He must not wilfully [sic] and
wantonly injure a trespasser; he must not wilfully [sic] and
wantonly injury a licensee, or intentionally expose him to
danger; and, where the visitor is an invitee, he must keep his
property reasonably safe and protect the visitor from dangers
of which he is, or should be aware.
Post v. Lunney,
261 So. 2d 146, 147 (Fla. 1972) (footnotes omitted).
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Following Post, the supreme court in Wood reaffirmed the
continuation of the category of licensees who are uninvited,
that is, persons who choose to come upon the premises solely
for their own convenience without invitation either expressed
or reasonably implied under the circumstances. We realize
this very limited category seems to overlap with the trespasser
but there can be narrow distinctions and we justify this
narrow class of "uninvited licensee" on such basis.
Wood,
284 So. 2d at 695 (emphasis added) (expanding the class of
invitees to include "licensees by invitation," and thereby eliminating "the
distinction between commercial (business or public) visitors and social
guests upon the premises, applying to both the single standard of
reasonable care under the circumstances") (emphasis added). "Wood
controls the liability of a landowner for injuries arising out of a defect in
the premises." Maldanado v. Jack M. Berry Grove Corp.,
351 So. 2d 967,
968 (Fla. 1977) ("Only when liability is predicated upon an alleged
defective or dangerous condition of the premises is the injured person's
status relevant.").
Based upon Post and Wood, an "invitee" falls into two
classifications: a "public invitee," or a "licensee by invitation."3 Bishop v.
First Nat'l Bank of Fla., Inc.,
609 So. 2d 722, 724 (Fla. 5th DCA 1992).
The "public invitee"—relevant here—"is a person who is invited to enter
or remain on land as a member of the public for a purpose for which the
land is held open to the public." Post,
261 So. 2d at 148 (quoting
Restatement (Second) of Torts § 332 (1965)). The duty owed to a "public
3 A "licensee by invitation" is a guest, either invited by express
invitation or a reasonably implied invitation, invited to come upon the
property of another and includes both social and business guests. Wood,
284 So. 2d at 695. The record establishes that Ms. Norris cannot be
considered a "licensee by invitation" because she was neither expressly
nor implicitly invited to come onto Mr. Rodriguez's property.
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invitee" is "a duty to maintain the premises in a reasonably safe
condition, and to warn of any concealed peril" that the owner or occupier
"should have known through the exercise of reasonable care." Freeman,
954 So. 2d at 46.
Whereas the narrow category of an "uninvited licensee is neither an
invitee nor a trespasser, but rather, a legal status between whose
presence is neither sought nor forbidden, but merely permitted or
tolerated by the landowner." Bishop,
609 So. 2d at 725. The duty owed
to an uninvited licensee correlates to the relaxed and tolerated
relationship between the landowner and an uninvited licensee and is
lessened to "a duty to refrain from wanton negligence or willful
misconduct which would injure him, to refrain from intentionally
exposing him to danger, and to warn him of a defect or condition known
to the landowners to be dangerous when such danger is not open to
ordinary observation by the licensee."
Id.
In the instant case, Ms. Norris attempted to cut across Mr.
Rodriguez's driveway for her own fancy—to reach the public sidewalk to
walk her dog. Though Ms. Norris argues that she fell in the area of the
driveway that was located within the county right-of-way on route to the
public sidewalk, there was no evidence that Mr. Rodriguez held his
property open to the public. Cf. Libby v. West Coast Rock Co., Inc.,
308
So. 2d 602, 604 (Fla. 2d DCA 1975) (holding that where the landowner
removed barricades and warning signs of rock pits on the property
knowing that young people used the property as a "lover's lane," the
plaintiff who drowned would not be elevated from an uninvited licensee
to that of an invitee based upon assertion that the landowner impliedly
invited the plaintiff as a member of the public). We find no merit in the
argument by Ms. Norris that because Mr. Rodriguez obtained a county
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permit to install the driveway, a portion of which was within the county
right-of-way, this equated an implied invitation for the public to use his
driveway. Indeed, the cases advanced by Ms. Norris do not stretch to
support this theory. See Lee Cnty. DOT v. Island Water Ass'n,
218 So. 3d
974, 978-79 (Fla. 2d DCA 2017) (holding that the water utility company
owed a legal duty to the public to correct or warn of the protruding valve
in the county public roadway); Freeman,
954 So. 2d at 46 (holding that
the trial court properly determined the plaintiff was a public invitee
where the plaintiff walked along a grassy right-of-way and fell into a
manhole owned by BellSouth). Therefore, it follows that Ms. Norris
cannot be classified as a "public invitee."
But Ms. Norris does meet the definition of an "uninvited licensee"
where her "presence [was] neither sought nor forbidden, but merely
permitted or tolerated." See Bishop,
609 So. 2d at 725; see also Porto v.
Carlyle Plaza, Inc.,
971 So. 2d 940, 941-42 (Fla. 3d DCA 2007) (holding
that a pedestrian who "cut across the grass and private driveway of [the
defendant], which was next to the public sidewalk, for her own
unrelated-travel purpose of allowing her dog to use the [defendant's]
premises to 'relieve itself' during the walk" was an uninvited licensee);
Schroeder v. Grables Bakery, Inc.,
149 So. 2d 564, 565 (Fla. 3d DCA
1963) ("It does not appear that public policy requires establishing a rule
in Florida that property owners are liable for reasonably foreseeable
injuries to the traveling public who may stray from an adjacent public
way since to do so would in effect extend the same rule of liability to the
trespasser and the licensee as is now extended to invitees.").
Here, the trial court properly granted summary judgment in favor
of Mr. Rodriguez determining that Ms. Norris' status should not be
elevated from an uninvited licensee to a public invitee where the
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undisputed facts establish that she cut across Mr. Rodriguez's property
solely for her own convenience in route to the public sidewalk. And while
she was on the driveway apron allegedly located within the county right-
of-way, this property was not held open to the public.
As an uninvited licensee, Mr. Rodriguez owed Ms. Norris a duty "to
refrain from willful misconduct or wanton negligence . . . and to refrain
from intentionally exposing [Ms. Norris] to danger"—there is no evidence
that Mr. Rodriguez breached these duties in the present case. See Porto,
971 So. 2d at 941. Furthermore, Mr. Rodriguez only has a duty to warn
an uninvited licensee, like Ms. Norris, of dangers that are not "open to
ordinary observation by the licensee." Lane v. Estate of Morton,
687 So.
2d 53, 54 (Fla. 3d DCA 1997) (quoting Bishop,
609 So. 2d at 725). Based
upon our review of the summary judgment record evidence, which
includes several photographs showing the elevated and broken condition
of the corner of the apron of the concrete driveway, the trial court did not
err in determining that the condition of the driveway was open and
obvious, relieving Mr. Rodriguez of any duty to warn an uninvited
licensee of the open and obvious danger of the driveway. See Hall v.
Holland,
47 So. 2d 889, 891-92 (Fla. 1950) (explaining that an "owner is
entitled to assume that the invitee will perceive that which would be
obvious to him upon the ordinary use of his own senses, and is not
required to give to the invitee notice or warning of an obvious danger");
see also Adair v. The Island Club,
225 So. 2d 541, 543 (Fla. 2d DCA
1969) (applying the open and obvious danger rule to licensees).
Accordingly, there being no genuine dispute as to any material fact, Mr.
Rodriguez was entitled to judgment as a matter of law.
Affirmed.
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NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE,
Concur.
Opinion subject to revision prior to official publication.
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