There Was a crooked man Who Walked a crooked mile and Got an even result

LEGAL NEWS by KEVIN KNIGHT

When we grew up, we were read the story of the “crooked many who walked a crooked mile. Little did we realize that this story might bear fruit many years later with some literary adjustment. How about a “non crooked man” who didn’t walk a mile but did “walk a crooked sidewalk?” What then? What happens when the man happens to be a tenant and the crooked sidewalk is on the property where he lives? This article will examine the case of Kelley v Sun Communities, 2021 WL 37595 (M.D.Fla. January 5, 2021) which involves an all too common landlord/tenant matter.

THE KELLEY FACTS:

Richard Kelley lived in Royal Palm for eight years at the time of his accident. While walking his dog on a sidewalk, he tripped and fell on an uneven sidewalk joint. He sued Sun Communities as the owner of Royal Palm. He asserted that Sun was negligent for failing to maintain the sidewalk in a safe condition.

Sun failed to see the “error of its ways” and denied Kelley’s assertion of negligence. During the course of discovery in the case, several facts became apparent.

1. Royal is a 55-and-over mobile home community in

Haines City, Florida.

2. Kelley lived in Royal for eight years before his trip.

3. Kelley would walk his dog around the neighborhood each day using the same route:

(A) down the 20 yards of sidewalk in front of his home;

(B) across a wooden footbridge to an open field; and

(C) Kelley and his dog would then turn around and walk the same route back home.

4. Kelley was quite familiar with Royal’s grounds at

Royal Palm;

5. Kelley had never tripped during any of his previous walks

6. Even so, Kelley thought the sidewalk needed repair, especially one joint between two of the concrete slabs which was uneven and slightly raised.

7. Kelley had previously notified Royal’s maintenance technicians of his concerns over the sidewalk’s condition. Id. at 46–47. Such “notifications” were only in passing conversations and he had never formally complained in writing nor had anyone else to his knowledge.

8. On the accident date, it was a clear afternoon in

May 2017.

9. Kelley’s trip and fall occurred on the return trip to his home.

10. He characterized his trip and fall as a “lapse of concentration.”

11. As a result of his trip and fall, he injured his left knee, had surgery and subsequent physical therapy.

ROYAL’S MOTION FOR SUMMARY JUDGMENT:

Based on the facts above, Royal argued that it was entitled to summary judgment because Royal was not negligent, had done nothing wrong and the uneven sidewalk was not a dangerous condition.

By: Kevin Knight

THE COURT’S RULING ON ROYAL’S SUMMARY JUDGMENT MOTION:

The Court agreed with Royal and granted Royal’s Motion For Summary Judgment.

The Court finds that the uneven sidewalk joint was not a dangerous condition. Therefore, the Community did not

breach its duty to maintain the premises in a reasonably safe condition.

In making its ruling, the Court noted that:

1. To sustain a premises liability action based on a landowner’s negligence, a plaintiff must prove the standard elements of a negligence claim: duty, breach of duty, proximate causation, and damages—with the added element that the landowner had possession/control of the premises when the alleged injury occurred

2. A landowner owes an invitee to the premises two distinct duties. The landowner must (1) “warn [the invitee] of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care”; and (2) “use ordinary care to maintain its premises in a reasonably safe condition.”

3. The Community admits that it owed Kelley both duties but contends it is entitled to summary judgment because it did not breach either duty as a matter of law. The Community asserts that the uneven sidewalk joint was an open and obvious condition—relieving any duty to warn—and was not inherently dangerous—meaning it did not constitute a violation of the duty to maintain the premises in a reasonably safe condition.

4. Indeed, the Community had no duty to warn

Kelley. A landowner has no duty to warn when a potentially dangerous condition is open and obvious, or when the plaintiff had actual knowledge of the condition.

5. Several other Florida appellate court opinions have held that a cracked or deteriorated sidewalk can constitute a dangerous condition or can at least raise a factual dispute over whether the landowner breached its duty to maintain the premises. These cases, however, are distinguishable. In each of these cases, the courts described the sidewalk as severely cracked, deteriorated, or otherwise in a state of disrepair. Based on evidence presented regarding the condition of the sidewalks, including photographs of the sidewalks in Lotto and Middleton, the courts found that issues of fact remained over whether the landowners could have expected that residents would continue to use the sidewalk, encounter the cracked and uneven portions, and suffer harm as a result.

6. But this is not a case of a dilapidated or deteriorated sidewalk. The photograph in the record makes this clear. Aside from one uneven seam, the sidewalk appears to be an otherwise pristine walking surface and not unreasonably hazardous.

7. A more similar case is Kersul v. Boca Raton

Community Hospital, Inc., 711 So. 2d 234, 234 (Fla. 4th DCA 1998). But it too is distinguishable.

There, the plaintiff tripped and fell over an uneven sidewalk joint on the hospital premises. The trial court entered judgment for the landlord.

The appellate court reversed finding there was conflicting evidence over whether the danger posed by the uneven sidewalk was “open and obvious.”

Id. There is no such conflict in this case.

8. In sum, the Community did not breach any duty it owed Kelley. The section of the sidewalk

Kelley tripped over was an open, obvious, and otherwise harmless condition. The law imposes on a landowner the duty to mitigate unreasonable hazards on the property. It does not require the landowner to foreclose all risk that an invitee will injure himself during an inattentive moment. The

Court likewise will not impose such a burden on the Community.

MORAL OF THE STORY: Buy a camera for when things go bad. Or someone else tells you it went bad. Start “snappin” the moment the “bad thing happens.” And don’t stop until you get enough (as that scholar Michael Jackson told us in song) that it’s apparent what happened and how it happened. It might spell the difference between a long, protracted lawsuit that ends in a trial on damages and a lawsuit that “goes nowhere” because pictures don’t lie since “every picture tells a story, don’t it? (as Rod Stewart assured us in song).