IN THE SUPREME COURT FOR THE STATE OF FLORIDA

IN THE SUPREME COURT FOR THE STATE OF FLORIDA TAM INVESTMENT COMPANY, a Florida corporation d/b/a FALLS OF MARGATE, S.C. Case No.: 07-1356 D.C. CASE NO.: 05-01712 (04) Petitioner/Defendant/Appellee. L.T. NO.: 4D06-3432 vs. GILLIAN FIELDHOUSE, Respondent/Plaintiff/Appellant, / AMENDED PETITIONER S JURISDICTIONAL BRIEF On Appeal from the Circuit Court in and for Broward County, Florida and from Opinion by the Fourth District Court of Appeal S.C. Case No.: 07-1356 DCA No. 05-01712 (04) L.T. Case No. 4D06-3432 LUKS, SANTANIELLO, PEREZ, PETRILLO & GOLD James P. Waczewski Florida Bar No.: 0154989 255 S. Orange Ave., Suite 930 Orlando, Florida 32801 Telephone: (407) 540-9170 Facsimile: (407) 540-9171 Attorney for Petitioner/Appellee/Defendant

TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT.. 3 ARGUMENT...3 I. The Fourth District used to wrong standard in evaluating whether a duty existed. 3 II. The Fourth District used the wrong standard in determining whether the plaintiff s knowledge of the condition excused any duty that Tam may have had..6 CONCLUSION 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF TYPE SIZE & STYLE... 12 ii

TABLE OF AUTHORITIES CASES Page(s) Aguila v. Hilton, Inc., 878 So. 2d 392 (Fla. 1 st DCA 2004).. 6 Ahl v. Stone Southwest, Inc., 666 So. 2d 922 (Fla. 1 st DCA 1995) 9 Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla.1986) 2, 5-7 Butler v. Sarasota County, 501 So. 2d 579 (Fla. 1986) 6, 8 Cassel v. Price, 396 So. 2d 258, 264 (Fla. 1 st DCA 1981). 8 Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029 (Fla. 4th DCA 1993) 6 Kenley v. Inwood Property Investment, Inc., 931 So. 2d 1053 (Fla. 4 th DCA 2006)...6 Lifemark Hosp. of Florida v. Hurley, 596 So.2d 1196 (Fla. 3d DCA 1992) 8 Mashni v. LaSalle Partners Management Ltd., 842 So. 2d 1035 (Fla. 4 th DCA 2003)...6 McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992)...passim Miller v. Wallace, 591 So. 2d 971 (Fla. 5 th DCA 1991) 9 Regency Lake Apartments Associates, Ltd. v. French, 590 So. 2d 970 (Fla. 1 st DCA 1991)...6 Saga Bay Property Owners Ass n v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987) 6 Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001) 3-5 iii

STATEMENT OF THE CASE AND FACTS This is an appeal from a final summary judgment entered in favor of Defendant/Petitioner that was reversed by the Fourth District Court of Appeal. The Respondent/Appellant/Plaintiff, Ms. Gillian Fieldhouse, will be referred to by last name or as Plaintiff. Petitioner/Defendant/Appellee, TAM Investments Company, d/b/a Falls of Margate, will be referred to as Tam or Defendant. The underlying action arose out of an accident involving Ms. Fieldhouse. (R. 1-4) At about 10:00 a.m. on March 9, 2003, Plaintiff tripped and fell in the backyard area of her rented apartment, sustaining injuries. (Id.; SR. 21-32). Ms. Fieldhouse rented a unit at The Falls of Margate (hereinafter Margate Apartments), which was owned and operated by Tam. (SR. 10). Plaintiff alleged that she tripped on a protruding ficus tree root that was covered by leaves. (R. 1-4) She testified that after moving in, on numerous occasions prior to her accident, Plaintiff, herself, raked leaves off the protruding tree roots. (SR. 38). Plaintiff sued Tam for negligence (premises liability) and, eventually, the Trial Court granted Tam s Motion for Summary Judgment, finding that Tam had no duty to remove the tree root or clean the leaves. Plaintiff took a timely appeal and, eventually, the Fourth District Court of Appeal issued an opinion (hereinafter Opinion ) reversing the entry of summary 1

judgment in favor of Tam. (See Addendum). Tam filed a timely notice of intent to invoke this Court s jurisdiction and now files this amended brief on jurisdiction. SUMMARY OF THE ARGUMENT This Court has jurisdiction over this Appeal because the Opinion is in conflict with McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992) and Aschroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986), and their progeny. The Fourth District s Opinion is in direct conflict with these cases because it applied the wrong standard to determine whether a duty existed and whether the duty was relieved by the plaintiff s equal or superior knowledge of the condition, and because it found that the issue of duty was a question for the jury, rather than for the Court. ARGUMENT I. The Fourth District used to wrong standard in evaluating whether a duty existed. It is difficult to understand what, exactly, the Fourth District Court of Appeal held regarding the issue of whether the Trial Court erred in finding that Tam had no duty to Ms. Fieldhouse with respect to the subject accident. The Fourth District discussed the general duty of care a landowner owes to an invitee, and also noted that under section 83.51(2)(a)3, the described common law duty of care applies to a property s common areas. (Opinion, 2). The 2

Fourth District then dismissed the claim that no liability can arise from a natural condition (Plaintiff did not dispute, below, that the tree root and the leaves were natural conditions), holding that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner, (Id.)(Emphasis added). 1 This Fourth District s holding was based, purportedly, on this Court s opinion in Whitt v. Silverman, 788 So. 2d 210, 222 (Fla. 2001). (Id.). The Fourth District wrote: Fieldhouse correctly argues that whether it was reasonably foreseeable that she would be injured when walking in the common area of the apartment complex is a question for the trier of fact. (Id.)(Emphasis added). The Fourth District concludes that [h]aving determined that the root s natural condition does not preclude Tam Investment Company from being liable for Fieldhouse s injuries, we next consider whether Fieldhouse s prior complaints about the root eliminated any duty Tam Investment Company may have had. (Opinion, 3). The Fourth s District s discussion of the duty that Tam may have had is consistent with that Court s indication that forseeability is a question for the jury and that natural conditions do not preclude liability when the invitee uses the property in a reasonable manner. That is, the Fourth District held that the question of duty could not be determined as a matter of law because 1 Petitioner has reviewed this Court s Whitt opinion carefully and found nothing therein indicating that, when determining whether a landlord owed a duty of care to the plaintiff, courts should consider the plaintiff s conduct. See Id. 3

these foreseeability and reasonableness issues had to be resolved by the jury. The Fourth District obviously confused the issues of duty and proximate cause. The Opinion, glaringly, contains no analysis of whether the Defendant created a zone of risk pursuant to McCain. The Fourth District seemed to ignore the holding of McCain and its progeny that the existence of a duty is a question for the Court, not for the jury. 2 The question that the Fourth District had to resolve was whether the Tam created a zone of risk under McCain when it allowed a ficus tree with protruding roots to live in the backyard of one of its apartments and when it allowed leaves falling from trees to cover the tree root upon which Ms. Fieldhouse apparently tripped, where the tree, the tree root, and the visible leaves covering it were not in an area designated for walking or other such activity. The resolution of this question does not involve, as the Fourth District held, a determination of whether the plaintiff used the landowner s property in a reasonable manner, or whether it was foreseeable that the plaintiff would be injured when walking in her back-yard. Foreseeability regarding Plaintiff s conduct may be relevant to the issues of proximate cause; or of whether prior 2 While an issue of fact pertinent to the issue of duty may arise, and may require that the jury make a factual determination before the judge rules on the issue of duty; the questions of whether the plaintiff acted in a reasonable manner, or whether it was foreseeable that Plaintiff would be injured when walking in the common area, are not issues of fact that regard the landlord s duty, or lack thereof, to remove the tree roots, clean the leaves, or both. See McCain, supra; Whitt, 788 So. 2d at 214, n. 5 (Fla. 2001). 4

knowledge of a condition or its open and obvious nature, will excuse a duty that is found to exist but not whether a duty existed, which requires general foresight. 3 Because the Fourth District used a standard on the issue of duty that is directly in conflict with the McCain standard, and because the Fourth District found that the issue of duty was a question for the trier of fact, the Fourth District s opinion is in conflict with McCain and its progeny, including Whitt. II. The Fourth District used the wrong standard in determining whether the plaintiff s knowledge of the condition excused any duty that Tam may have had. It is the law in this State (see Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986) that, irrespective of the adoption of the comparative negligence rule, no liability (no duty to warn or to make safer) arises from the existence of a condition that is open and obvious, or about which the plaintiff has equal or superior knowledge, unless: 1) a representation is made to the injured party that the inherent dangers in such condition are not existent or have been 3 On this holding, the Opinion is also in direct conflict with Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1 st DCA 2004)( [A] legal duty does not exist merely because the harm in question is foreseeable. To the contrary, it is clear from McCain that the defendant s conduct must create the risk.). Certainly, foreseeability plays a role in determining the duty issue in that the Court must determine whether the defendant s act or omission created a risk that, foreseeably, would harm others. See Id., 396-397. In any manner, this foresight question is to be resolved by the Court, not the jury. Id. 5

reduced; 4 2) the injured party was forced to confront the condition in spite of his or her knowledge of the inherent danger of doing so; 5 3) it is foreseeable that a person would have his or her attention diverted and would not recognize the danger, such as where the area where the condition exists is designated as a walking area, or a swimming area; 6 or 4) a statute or regulation requires that the dangerous condition be lessened or eliminated and there is evidence that the defendant failed to do so. 7 4 E.g., Butler v. Sarasota County, 501 So. 2d 579 (Fla. 1986)(liability for inherent dangers of beach can arise when the County designates a beach as a swimming area); Regency Lake Apartments Associates, Ltd. v. French, 590 So. 2d 970 (Fla. 1 st DCA 1991)(liability from tripping on tree root can arise when the area where the accident occurred is a pet-walk area). 5 E.g. Mashni v. LaSalle Partners Mgmt. Ltd., 842 So. 2d 1035 (Fla. 4 th DCA 2003); Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986)( where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. The jury in such cases may be permitted to find that obviousness, warning, or even knowledge is not enough. ). 6 E.g., Butler v. Sarasota County, 501 So. 2d 579 (Fla. 1986)(liability for inherent dangers of beach can arise when the County designates a beach as a swimming area); Regency Lake Apartments Associates, Ltd. v. French, 590 So. 2d 970 (Fla. 1 st DCA 1991)(liability from tripping on tree root can arise when the area where the accident occurred is a pet-walk area); Saga Bay Property Owners Ass n v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987). 7 E.g., Kenley v. Inwood Property Investment, Inc., 931 So. 2d 1053 (Fla. 4 th DCA 2006)(discussing open and obvious doctrine as applied to bodies of water cases and noting exception of no liability where there is evidence of a code violation with regard to the body of water); Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029 (Fla. 4th DCA 1993) (fact question existed in action for damages from drowning death of child in lake excavated for drainage purposes in residential development; local water management district regulations created duty which, if breached by developer, would give rise to cause of action for damages; and record 6

Here, the Fourth District Wrote: A plaintiff s knowledge of a dangerous condition... simply raises the issue of comparative negligence and precludes summary judgment. Opinion, at 3. This is an overbroad statement of the law that conflicts with the holding of Ashcroft and its progeny, which establish that a finding of no liability can be premised on the open and obvious nature of the condition at issue unless an exception to this rule is found in the facts of each particular case. Furthermore, the Fourth District writes that despite her previous complaints about the root, Fieldhouse s testimony that the visible leaves concealed the root on the day of the injury created a genuine issue of material fact as to whether the danger was open and obvious. Opinion, 3. There are many problems with this holding. First, it is undisputed in this case that Mrs. Fielhouse previously raked leaves off of the exposed tree roots in her back-yard. She was aware of the roots and of the fact that they were often covered by falling leaves. More importantly, for an issue of fact to preclude summary judgment, it must be material. The Fourth District seems to have misunderstood the dangerous condition that the plaintiff alleged. Where there are trees, quite commonly, there are exposed tree roots. If one sees the tree and is going to walk by it, one must look out to determine demonstrated question of fact as to whether developer had complied with such regulations in constructing lake). 7

whether one is going to be stepping on, or tripping on, tree roots. If one sees a tree and the ground surrounding it is covered with visible leaves, one must take a greater precaution in this regard. In any manner, a condition that is known to the Plaintiff is, necessarily, an open and obvious condition. Plaintiff assumed the open and obvious risk of walking into an area she knew to have protruding tree roots when the area was covered by leaves. It could only be said that the presence of the leaves precluded the finding of no liability if the leaves covered a danger about which the plaintiff was not familiar. Lifemark Hosp. of Florida v. Hurley, 596 So.2d 1196 (Fla. 3d DCA 1992)( step in the dark doctrine not applicable where the plaintiff was familiar with the dark area he or she was walking on and the injury was caused by something that was not usually located in the area). When considering whether liability can arise out of a condition of the land that contains commonly-known inherent dangers (i.e., beach/rip tide, canal/dropoff, lake/drop-off, tree/rocks or protruding tree roots), our Courts do not focus on whether the danger (i.e., drop offs, rip tide, rocks or tree roots at the bottom of a tree) is visible, but on whether a representation is made to the invitee that such a danger will not be encountered, or whether one of the other exceptions discussed above arises. E.g., Butler, supra. In fact, this case is in direct conflict with the First District s opinion in Cassel v. Price, 396 So. 2d 258 (Fla. 1 st DCA 1981), finding that no liability can 8

arise against a landlord for a child s fall from a tree located on the property, regardless of whether the child could have seen the semi-hidden pieces of brick at the bottom of the tree. The proper analysis was explained, and followed, in Ahl v. Stone Southwest, Inc., 666 So. 2d 922 (Fla. 1 st DCA 1995)(emphasis added), as follows: As to the duty to use reasonable care in maintaining the premises in a reasonably safe condition, the owner has no duty to warn where the danger is obvious and apparent, or the invitee otherwise has knowledge of the danger which is equal to or superior to the owner's knowledge. Miller, 591 So.2d at 973. This rule arises from the principle of law set forth in section 343A of the Restatement, which provides, in pertinent part, as follows: (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. The facts clearly demonstrate that the condition was known or obvious to Ahl.... Based on this evidence, Stone Southwest owed Ahl no duty to warn of the obvious danger created by the water and oil on the floor. The question remains, however, as to whether Stone Southwest should have anticipated the harm despite Ahl's knowledge of the condition or the obviousness of the condition. As explained in Comment "f" to section 343A of the Restatement, there are situations in which the landowner can and should foresee that the dangerous condition will cause harm to an invitee despite its known or obvious danger. A reasonable probability to expect harm to an invitee from known and obvious dangers may arise under the following 9

circumstances: If a landowner may expect that the invitee's attention might be distracted, so that he or she will not discover what is obvious, or will forget any such discovery, or fail to protect himself or herself against it, and if the landowner may expect that the invitee will encounter the known or obvious danger, because, to a reasonable person in the invitee's position, the advantages of such encounter would outweigh the apparent risk. In such cases, the fact that the danger is known or obvious is important in determining whether the invitee may be charged with comparative negligence. It is not conclusive, however, in determining the duty of the landowner, or whether he or she acted reasonably under the circumstances. The Fourth District failed to analyze the interplay between the plaintiff s knowledge of the condition with the general question of whether a duty exists. It should have, preliminarily, analyzed whether a duty exists, and, if so, whether the duty was eliminated or excused by the plaintiff s knowledge. For example, should have Tam anticipated that Plaintiff would have forgotten about the existence of the roots, or the presence of leaves covering the ground around a tree, and, therefore, should have removed the roots or the leaves? Having failed to conduct such an analysis, and having made significantly overbroad statements about the status of the law, the Opinion is in conflict with the authorities above. CONCLUSION This Court should find that jurisdiction exists, based on direct conflict, to review the Opinion of the Fourth District Court of Appeal. 10

Respectfully submitted, LUKS, SANTANIELLO, PEREZ, PETRILLO & GOLD The Citrus Center 255 South Orange Avenue, #930 Orlando, FL 32801 (407) 540-9170 (407) 540-9171 fax /s/ JAMES P. WACZEWSKI, ESQ. Florida Bar #.: 0154989 JPW@ls-law.com DANIEL J. SANTANIELLO, ESQ. Florida Bar #: 860948 Attorneys for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Kenneth Cohen, Esq., Holman & Cohen, 2739 Hollywood Blvd., Hollywood, FL 33020, this August, 2007. LUKS, SANTANIELLO, PEREZ, PETRILLO & GOLD The Citrus Center 255 South Orange Avenue, #930 Orlando, FL 32801 (407) 540-9170 (407) 540-9171 fax JAMES P. WACZEWSKI, ESQ. Florida Bar #.: 0154989 Attorney for Petiotioner 11

CERTIFICATE OF TYPE SIZE & STYLE Petitioner, through the undersigned, certify that the type, size, and style utilized in this Brief is 14 point Times New Roman, which is 10 characters per inch. JAMES P. WACZEWSKI, ESQ. 12