Even “When Off the Beaten Path”, Landlord May Still Owe Duty of Care
May 17, 2016 in Case Law Updates by bronsteincarmona
In Grimes v. Family Dollar Stores of Fla., Inc.,[1] Patricia Grimes sued Family Dollar, a sublessee, the landowner and the lessee for negligence when she sustained injuries wrought by a protruding piece of re-bar in a shopping plaza parking lot. The re-bar was protruding from a landscaped area not designed for foot traffic when Ms. Grimes, crossing the parking lot to Family Dollar and taking a shortcut through the landscaping, tripped and fell over the re-bar.
The trial court entered summary judgment in favor of each of the three defendants and, in doing so, relied on a recent case from the Fourth District Court of Appeal, Wolf v. Sam’s East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014). In Wolf, the injured party also tripped on an item protruding from the ground while walking through a landscaped portion of a parking lot.
In Grimes, however, the Third District Court of Appeal distinguished Wolf and reversed the trial court’s entry of a summary judgment as to the landowner and the lessee finding that the offending object in Wolf—a tree root—differed from the re-bar that brought down Ms. Grimes. An additional ground for the Court’s finding was that the landscaped area in Grimes was “in continuous and obvious use as a pedestrian shortcut for some time.” This evidence, the Court held, was enough to go to a jury on the issue of whether the defendant landowner and lessee had constructive knowledge of the common usage of the path and, therefore, a duty to anticipate the potential harm. As to whether the condition was obvious, the Court again distinguished Wolf in noting that the protruding object there was something to be expected in a landscaped area whereas a piece of re-bar is not. The Court did, however, affirm the summary judgment as to Family Dollar, the sublessee, as the evidence showed that maintenance of the parking lot was the sole responsibility of the landowner and lessee.
This case serves as a cautionary and advisory tale as the Third District clearly rebuffed any “ostrich” defenses and arguably extended a landowner’s obligations to whether or not something that was not designed to be a path could still require maintenance. It also highlights the importance of evidence of control over shared areas.
[1] 41 Fla. L. Weekly D1089 (Fla. 3d DCA May 4, 2016)