MELANIE CHADWELL NORRIS v. ALAN RODRIGUEZ AND FLORA RODRIGUEZ ( 2023 )


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  •               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.
    2
    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).
    3
    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.
    4
    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
    5
    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
    6
    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.
    7
    NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE,
    Concur.
    Opinion subject to revision prior to official publication.
    8
    

Document Info

Docket Number: 22-1457

Filed Date: 12/29/2023

Precedential Status: Precedential

Modified Date: 12/29/2023