FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 18

CASES FROM THE WEEK OF MAY 5, 2017

SUMMARY JUDGMENT AFFIRMED AGAINST PLAINTIFF AS AN UNINVITED LICENSEE OR TRESPASSER ON A COMMERCIAL PROPERTY.

Arp v. Waterway East Association, 42 Fla. L. Weekly D938 (Fla. 4th DCA April 26, 2017):

Around 11:00 p.m., the plaintiff was injured while walking over a pathway of paver stones located in an area of a utility easement on a shopping center property owned by the defendant. The plaintiff stepped on a cracked paver stone that was a little loose which caused her ankle to roll and fall. The accident occurred as the plaintiff and her companion took a shortcut as they were walking back to the plaintiff’s home after taking a dinner cruise in Delray.

While the cut through was not marked with a “No Trespassing” sign, and other people regularly cut through there according to the plaintiff, on the evening of the accident the plaintiff had not visited any of the businesses at the shopping center. Instead, she just used it as a shortcut.

The plaintiff sued alleging she was an “implied” invitee on the property by virtue of the creation of the pathway, and that she was injured as a result of the defendant’s negligent maintenance of the pathway. The defendant ultimately moved for summary judgment, arguing that it did not breach a duty to a plaintiff who was either a trespasser or an uninvited licensee, and further argued that it had no duty to maintain an area covered by an exclusive utility easement granted to the city (a matter of no dispute).

The classification of an entrant on property is always significant because that is how the duty of care owed by the land owner is established. A land owner owes a duty to a trespasser or uninvited licensee to avoid willful or wanton harm, and upon discovery of the person’s presence, to warn him of any known dangers which would not be open to ordinary observation.

Conversely, an invitee is a visitor on the premises by invitation--either expressed or reasonably implied--of the owner. An “invitation” means the visitor entered the premises with an objectively reasonable belief that he or she has been invited or is otherwise welcome to that portion of the property. Importantly, erecting “No Trespassing” signs is purely optional to a land owner, and does not mean that the lack of such signs impliedly invites the public onto the land.

The court said this was not a case where the plaintiff’s status on the property presented a factual question for the jury. It found no reasonable jury could conclude from this record that the easement area was designed as a convenient path for pedestrians to reach the shopping center. Although the property contained a short pathway of paver stones next to the storm pump station, the area was plainly not intended to be used by visitors as a walkway to and from the parking lot of the shopping center. The fact there was not a “No Trespassing” sign also did not constitute an implied invitation.

The record established--without genuine issues of material fact--that the defendant did not breach a duty because it did not willfully or wantonly harm the plaintiff. Also, the property did not contain any known dangers not open to ordinary observation, and the defendant was not aware of the plaintiff’s presence. Thus, summary judgment was properly entered for the defendant.

WITHOUT A TRANSCRIPT, THE APPELLATE COURT CANNOT REVIEW WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A REQUEST TO CONSIDER AN UNTIMELY AFFIDAVIT IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT.

Les Chateaux v. Cuevas & Associates, 42 Fla. L. Weekly D944 (Fla. 3rd DCA April 26, 2017):

A plaintiff asserted on appeal that the trial court erred in denying its request to consider an untimely affidavit in opposition to a motion for summary judgment, in violation of rule 1.510(c).

However, without a transcript from when the request was made and denied, the court said it could not review whether there was an abuse of discretion.

NO ABUSE IN DENYING DEFENDANT FIREARMS MANUFACTURER’S MOTION TO DISMISS ACTION ON THE BASIS OF FORUM NON CONVENIENS--THERE IS A PRESUMPTION TO FAVOR THE PLAINTIFF’S INITIAL CHOICE OF FORUM, AND HERE, THE CHOICE OF THE FORUM WAS ALSO THE DEFENDANT’S HEADQUARTERS.

Taurus International v. Friend, 42 Fla. L. Weekly D944 (Fla. 3rd DCA April 26, 2017):

Plaintiff was injured by a bullet that discharged from his gun causing him injury. He filed a products liability action against the manufacturer in its home forum, Miami-Dade County, even though the plaintiff himself was a police officer who lives in Kentucky.

The trial court acted within its discretion in denying the defendant’s motion to dismiss, because under rule 1.061(a) the decision to grant or deny a motion for dismissal rests in the sound discretion of the trial court subject to review for an abuse of discretion.

The rule outlines four factors for the trial court to consider when ruling on a motion to dismiss for forum non conveniens: (1) whether an adequate alternative forum exists which possesses jurisdiction over the whole case including all the parties; (2) whether all relevant factors of private interest favor the alternative forum, weighing the balance of the strong presumption against disturbing the plaintiff’s initial forum choice; (3) if the balance of private interest is at or near equipoise, then whether factors of public interest tip the balance in favor of the trial in the alternative forum; and (4) whether the plaintiffs can reinstate their suit in the alternative forum without inconvenience or prejudice.

Miami-Dade County was the plaintiff’s initial forum choice and the place where the defendant’s headquarters is and where it markets, distributes and services firearms.

The court not only ruled that the judge did not abuse his discretion in denying dismissal, but noted that a forum non conveniens argument that comes when a party is sued where he resides, is both puzzling and strange.