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Filing# 175888628 E-Filed 06/22/2023 10:49:40 AM
Rosenfeld v. Walt Disney World Co.
Court of Appeal of Florida, Fifth District
March 10, 1995, Filed
CASE No. 94-1318
Reporter
651 So. 2d 811 *; 1995 Fla. App. LEXIS 2369 **; 20 Fla. L. Weekly D 632
the curbs and that an opticalillusion of flatness created by the
LUCILLE ROSENFELD, et al.,Appellants, v. WALT
colors of the curb and street does not make them inherentlyor
DISNEY WORLD CO., Appellee.
unreasonably dangerous, as a matter of law. (Form v. City of
St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992), rev.
Subsequent History: [**1] Released for Publication March
denied 604 So. 2d 486 (Fla. 1992). Disney's Main Street
29,1995.
curbs and streets are recreations of ordinaryvillageand town
streets and curbs, although located in its amusement park.
Prior History: Appeal from the Circuit Court for Orange
That fact alone is not sufficient to remove Disney's ordinary
County, James C. Hauser, Judge.
streets and curbs from the category of open and obvious
Disposition:AFFIRMED.
hazards. Thus, this case is controlled by (Form. See also
Aventura MaH Venture v. Olson, 561 So. 2d 319 (Fla. 3d
Counsel: Dougald B. Leitch of Law Offices of Mahaffey & DCA), rev. denied, 574 So. 2d 142 (Fla. 1990).
Leitch, Orlando, for Appellants.
AFFIRMED.
John Ward Smith of Roth, Edwards & Smith, P.A., Orlando,
for Appellee. GOSHORN and DIAMANTIS, JJ.,concur.
Judges: SHARP, W., J., GOSHORN and DIAMANTIS, JJ.,
concur. End of Document
Opinion by: SHARP
Opinion
[*812] SHARP, W., J.
The Rosenfelds appeal from a final summary judgment in
favor of Walt Disney World Company. The trial court held
Lucille Rosenfeld could not recover damages caused by her
fall over a street curb on "Main Street USA," at the Magic
Kingdom in Orange County, Florida, from Walt Dinsey
World, the owner and operator of the theme park. The major
thrust of the Rosenfelds' complaint was that the Disney
property where Lucille a public amusement park, not a
fell is
public street, and that the curb, street and sidewalk were
in such a
colored artificially way as to create an optical
illusion of flatness, which obscured the change of levels from
Lucille's view, and created a hazard for guests and patrons
visitingMain Street.
This court has held en banc that changes in levels from
**,
ordinary curbs to streets do not r '2] subject a landowner to
for injuriessuffered by persons fallingover
premises liability
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/22/2023 10:49:39 AM.****
Gorin v. St. Augustine
Court of Appeal of Florida, Fifth District
March 13, 1992, Filed
CASE NO. 90-1128, 90-1231
Reporter
595 So. 2d 1062 *; 1992 Fla. App. LEXIS 2480 **; 17 Fla. L. Weekly D 702
Lightner Museum. The city provides a semicircular driveway
MARSHA GORIN, et al.,Appellants, vs. CITY OF ST.
at the front entrance of the museum to eliminate obstruction to
AUGUSTINE, FLORIDA, etc., et al.,Appellees.
traffic on a main thoroughfare.A sidewalk, also provided by
the city, abuts the driveway and requires a step up to the
Subsequent History: Released for Publication April 1, 1992.
sidewalk. The sidewalk and the driveway surfaces are of a
Petition for Review Denied August 17, 1992, Reported at
similar, if not the same, coloration. The Gorins arrived at the
1992 Fla. LEXIS 1490.
museum, disembarked the tram, toured the museum, and
Prior History: Appeal from the Circuit Court for St. Johns began the walk back to the tram on much the same route that
County, Richard G. Weinberg, Judge. they had followed upon their arrival. When Mrs. Gorin
arrived at the point where the sidewalk dropped to the level of
AFFIRMED. the driveway, she fell. Later, she testified while being deposed
Disposition:
that, although she was watching where she was going, she did
Counsel: Edward A. Perse of Perse, P.A. & Ginsberg, P.A. not see change in elevation nor the curb located
the
and Carroll & Halberg, P.A., Miami, for Appellants. approximately five or six feet from the train.
William M. Corley and Clifford C. Higby, Jacksonville, for In addition to these facts, the evidence before the trial court at
Appellee City of St. Augustine. the hearing on the motion for summary judgment included a
Scott A. Cleary of Williams & Shad, P.A., Jacksonville, for report that a driver for the
company operatingthe train told
Mrs. Gorin that she had seen four or five persons fall off the
Appellee Lightner Museum.
curb and had reported it to someone at the museum. In a
EN BANC. PETERSON, GOSHORN, DAUKSCH,
Judges: deposition,the driver indicated that she had observed the falls
COBB, COWART, HARRIS, DIAMANTIS, SHARP, during the two years and three or four months that she was
GRIFFIN employed as a driver and had reported only one incident to
the museum. That incident involved the simultaneous fall of
Opinion by: PETERSON two women who were looking at the train rather than at the
sidewalk. She also indicated that the reason for the incidents
[*1063] is that persons waiting for the train become excited
Opinion
when they see the train arrivingand they fail to look where
they are walking. Mrs. Gorin specifically
testified that she
was watching where she was walking and did not see the
[*1062] PETERSON, J.
curb. Another driver indicated in a depositionthat on a busy
day approximately one thousand passengers would board the
tram.The Gorins had filed an affidavit of an engineer which
EN BANC indicated that the "lack of delineation between the steps for
the sidewalk/street and tram areas creates an opticalillusion
Marsha Gorin and her husband, Martin, appeal the summary
with conflicting and confusing feedback particularly to
judgment entered in favor of the defendants, two separate
pedestrians in a vacational and recreational mood." The
entities, City of St. Augustine and Lightner Museum, a
engineer further opined that this was an inherently and
Florida corporation not for profit.The Gorins brought the
action as a result of injuriesMarsha sustained in a fall when unreasonably dangerous situation, that warning signs or
yellow striping should be available, and that, had these
she stepped down from a sidewalk to a roadway. We affirm.
warnings been present, the accident would not have occurred.
On August 28, 1986, Mr. and Mrs. Gorin boarded a train for a The Gorins conceded that there was no foreign substance or
"break" in the curb that contributed to the fall. The surface
tour of St. Augustine tourist sites, one of which is the
Page 2 of 7
was dry and Mrs. Gorin's path was unobstructed. The city (Fla. 2d DCA 1990), to support their contention that summary
manager testified in his depositionthat curbs within the city judgment should not have been entered for the defendants.
are not marked except for parking restrictions, that the city The plaintiffin BO'ant was injured as she stepped from the
built and maintained the curbs, and that Lightner Museum had sidewalk to the driveway below. She happened to choose the
no responsibility
to do so. point of descent where a speed bump had been constructed on
the driveway below, causing an uneven surface upon which to
The Gorins alleged that the City of St. Augustine was The Second District reversed the
step. [*1064] summary
negligent in maintaining an unsafe curb that was not judgment after determining that a factual 'questionwas raised
adequately painted or marked. The trial court relied on as to when considering all circumstances, the
whether,
Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d should have seen the speed bump. Neither the curb
plaintiff
DCA), review denied, 574 So. 2d 142 (Fla. 1990), in granting nor the descent was an issue; [**7] the issue was whether the
the defendallts' motions for summary judgment.Aventura defendant should have seen uneven
tile surface, the speed
involved a slip and fall from a six-inch sidewalk curb. The the termmation point of her descent. the instant
bump, at Ill
plaintiffalleged in that case that the curb was negligently case, the surfaces of both the sidewalk and the roadway were
designed and maintained because it had not been painted even.
yellow to warn of the change in elevation. Although the trial
court entered judgment for the plaintiff after a jury verdict, The summary judgment in favor of the City of St. Augustine
the Third District reversed, findingno inherent danger in the and LightnerMuseum is affirmed.
color of the curb blending with the color of the driveway
below. The court quoted from an earlier Florida Supreme AFFIRMED.
Court opinion,Bowles v. Elkes Pontiac Co., 63 So. 2d 769,
772 (Fla. 1953), that "it is a matter of common knowledge
GOSHORN, C.J., DAUKSCH, COBB, COWART, HARRIS,
and DIAMANTIS, JJ.,concur.
that 'the sidewalks and the drop-offs from such sidewalks to
the streets have the same color as the streets in thousands of
SHARP, W., J.,dissents with opinion.
instances throughout Florida."' 561 So. 2d at 320.
GRIFFIN, J., dissents with opinion in which SHARP, W., J.,
The facts in this case are strikinglysimilar to those in
concurs.
Aventura in that curbs, if painted, were for traffic control
only; the weather was clear; the lightingwas adequate since Dissent by: W. SHARP; GRIFFIN
the event took place during daylight hours; there was no
foreign object on the surface; and the curb was plainlyvisible. Dissent
The Aventura opinion also cited Stanley v. Morgan &
Lindsey, Inc., 203 So. 2d 473 (Miss. 1967), in which that
court concluded that a step-offfrom a sidewalk curb was not
inherently dangerous although the plaintifftestified that "it SHARP, W., J.,dissenting.
just looked like one big solid slab of concrete, all on the same
I
respectfully dissent. Although this is a close case, when in
level." Aventura is also consistent with our earlier decision in
doubt as to whether or not there is a material question of fact
Circle K Convenience Stores, Inc. v. Ferguson, 556 So. ld
in reviewing a summary judgment, the appellatecourt should
1207, 1208 (Fla. 5th DCA 1990), where we stated, "Some 1
give the benefit of the doubt to the nonmoving party, and
conditions are simply so open and obvious, so common and
concurred with a proposed
allow a jury to resolve the issue. I
so ordinarily innocuous, that they can be held as a matter of
law to not constitute a hidden dangerous condition." We also opinion written by Judge Sawaya, an associate judge sitting
with the original panel. I adopt and incorporate it in this
agree with the Third [**6] District that "to hold that an
opinion because it states the record and issues fully and
ordinary sidewalk curb, without more, is
inherentlydangerous
would make accurately and demonstrates why the facts, taken most
every municipality and business establishment
do not create such an open and
favorably to the plaintiffs,
the virtual insurer of the safety of every pedestrian."
obvious condition as to render the configuration of the [**(
:81
Aventura, at 321. Given the high traffic of passengers
boarding the tram, some will fall no matter what color the
curb might be, especiallywhen the passengers are looking at
the train rather than where they are walking as was the case in
1
See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Gonzalez v. Great
the previous incidents witnessed by the train driver. Oaks Casualty Insurance Co., 574 So. 2d 1182, 1183 (Fla. 3d DCA
1991); Greene v. Kolpac Builders, Inc., 549 So. 2d 1150 (Fla. 3d
The Gorins cite Bryant v.
Lucky Stores, Inc, 577 So. 2d 1347 DCA 1989); Williams v. Florida Really & Management, 272 So. 2d
176, 177 (Fla.3d DCA 1973)
Page 3 of 7
curb and sidewalk 1]gi inherentlydangerous as a matter of v.
Lively,465 So. 2d 1270 (Fla. 3d DCA), rev. denied 476 So.
law. 2d 674 (Fla. 1985). The issue of whether a legalduty exists is
for the court to decide as a matter of law. Id. Whether that
It reads:
duty was breached is an issue to be decided by the jury unless
only one reasonable conclusion may be drawn from the
The plaintiffs,
Marsha Gorin and her husband Martin, appeal
evidence. 1 Lively,465 So. 2d 1270.
an order on motion for summary judgment entered in their
personal injury lawsuit in favor of the defendants, City of St.There are few areas in the law of negligence in which the
Augustine aild the LiglltnerMuseum. This case origmated on concept of (lutyhas been more significalltin determining civil
August 28, 1986, when Mrs. Gorin fell outside the Lighttler liability Largely based on
than the area of premises liability.
Museum, injuringher elbow and leg.The museum is owned the judiciallyperceived need to balance proprietaryrightsaid
by the City of St. Augustine. On that date, Mr. and Mrs. Gorin interests (those privilegesaccorded the landowner to use his
and their grandson took a tour of St. Augustine on a train
property as he desires) with the necessityof protectingothers
operated by St. Augustme Trams, Inc., which remams a from unreasonable hal?rrl that may be caused by the
defendant in the trial proceedings. ?rhe train picked them up unrestrained use of various duties of care are
property,
and dropped [**9] them off at various tourist sites,including aiid occupiers. The extent
imposed on landowiiers of the duty
the Lightner Museum. Mrs. Gorin disembarked at the of care the cause of the harm in
depends upon and,
museum without incident, completed a tour and returned harm
appropriatecases, the status of the entrant. If the is
outside to reboard the train. While walking toward the train,caused by the active conduct or personal negligence of the
Mrs. Gorin missed a step over a curb and fell, sustailling
landowner, his (lutyis to exercise reasonable care to prevent
Mrs. Gorin testifiecl that she Was WatcllingWhereshe
injuries. hann totllirdparties. Maldonado v.Jack Grove M.Bem
was going but was unaware of the curb and did not see any 351 So. 2d 967 Hix 284 So. 2d
Corp, (Fla. 1977); v. Billen,
change in levels. 209 (Ba. 19131 Seaboard System Railroad, Inc. v. Mells, 528
So. 2d 934 (Fla. 1st DCA 1988). However, as in this case,
Mrs. Gorin fell at a location in front of the museum where the
when alleged that the injury was caused by an inherently
it is
trainsdischarge and pick up passengers. A semicircular
dangerous condition on the 2 premises the status of the
driveway abuts the sidewalk in this location and the trains
injured party determines the duty owed. Id. The three
drive into this driveway and park as close to the sidewalk as
categories of entrants in the order of decreasing status are
possible. There is a drop-off from the sidewalk curb to the
invitees, licensees, and trespassers. The corresponding duty
driveway which is maintained by the City of St. Augustine. of the landowner or
and, therefore, the potentialliability
The sidewalk, curb, and driveway are all the same color and 1
occupier decreases as the status of the entrant decreases.
no markings to distinguishthe change in levels. Four
there are
Under the facts of this case Mrs. Gorin occupies the status of
or five other women have on prior occasions in the
fallen
an This requiresthe owner or occupier to exercise the
invitee.
same location and in the same manner as Mrs. Gorin. These
highest duty of care owed to any of the three categories of
incidents were reported to the defendants prior to Mrs. Gorin's
entrants. The defendants thus owed Mrs. Gorin the duty to
accident.
keep the premises in a reasonably safe condition and warn her
The lower court concluded that the defendants had not of Uent perils. Spaulding v. City of Melbourne, 413 So. 2d
breached any legalduty owed to Mrs. Gorm as all mvitee and 226 (Fla. 5th DCA 1985); Hylazewski v. Wet Wild, Inc.,
'
N
0 were, therefore, not negligent.The court reasoned that the 432 So. 2d 1371 (Fla. 5th DCA 1983); Pittman v. Volusia
condition on the premises which caused Mrs. Gorin's injury is County, 380 So. 2d 1192 (Fla. 5th DCA 1980).
open and obvious and does not constitute an inherently
dangerous condition as a matter of law. We reverse.
1
The duty owed to an invitee is to keep the property in a reasonably
[*1065] Negligence is commonly defined as the failure to safe condition and to warn the invitee of concealed dangers which
use that degree of care, diligenceand skill that is one's legal are known or should be known to the landowner and which are
unknown to the invitee and cannot be discovered by him in the
duty to use ill order to protect another from injury. Miriam
Mascheck Inc. v. Mausner, 264 So. 2d 859 (Fla. 3d DCA exercise of due care. Spaulding v. City of Melbourne, 473 So. 2d
As an essential element of
226 (Fla. 5th DCA The duty owed to a licensee is not to
1985).
1972). any negligence action, the
intentionallyharm wam him of known dangers. Wood v.
him and to
plaintiffmust establish the existence of a duty recognized by
Camp, 284 So. 2d 691 (Fla. 1973). The duty owed to a trespasser is
law which requires the defendant to conform to a certain
to avoid willful and wanton harm and upon discovery of his presence
standard of conduct for the protection of others against
to warn him of known dangers not open to ordinary observation. Id.;
unreasonable risks. Westchester Exxon v. Faldes, 524 So. 2d Bovino v. Metropolitan Dade County, 378 So. 2d 50 (Fla. 3d DCA
452 (Fla. 3d DCA 1988); Florida Power and Light Company 1979).
Page 4 of 7
The defendants contend that the condition of the premises 2d at 282, the court stated "We recognize that accompanying
which caused Mrs. Gorin's injury is neither latent nor circumstances may
transform a change in floor levels into a
concealed but rather open and obvious. Therefore, they argue dangerous situation creating a duty to warn." And in Schoen
that the legalduty owed to her as an invitee does not require v. Gilbert, 436 So. 2d at 76, quoting Hoag v. Moeller, 82 So.
them to give notice or warning of this obvious condition. 3 2d 138, 139 (Fla. 1955), the court held that "a difference in
The obvious danger doctrine recognizes that owners and floor levels does not of itself constitute failure to use due care
occupiers should be legallypermitted to assume that invitees ...." (Emphasis added). Moreover, the Aventura court
will perceive conditions obvious to them upon the ordinary observed, after finding that ordinary curbs are not inherently
use of their own senses. Aventura MaH Venture v. Olson, 561 dangerous, "this was not a case where the surrounding
So. 2d 319 (Fla. 3d DCA), review denied 574 So. 2d 142 conditions of the step-down were sufficient to transform a
(Fla. 1990); Circle K Convenience Stores, Inc. v. Ferguson, normally non-negligentcondition into a negligentone." Id. at
556 So. 2d 1207 (Fla. 5th DCA 1990). In these situations the 320.
courts reason that if any negligence exists, full responsibility
for its results should be borne by the plaintiffunder
In Bgantv.
Luc* Stores. Inc.. 570 So. 2d 950 (Fla.2d DCA
1990) 6 the plaintifffell whell she stepped down from a
See, e.g., Matson v. Tip
comparative negligence principles.
sidewalk omoaspeedmmp locatedina fwelanein fromof
Top Groceg CMM?3,.M.,151 Fla 247,9 So. Zd 366 Cfla
The courts also regard public policy considerations as the store.She brought suit claiming that the sidewalk and
1942).
for adopting this
importantjustification rule. The rule, at least speed bump were unsafely designed and that the defendants
some breached their duty to her by failingto warn her of the danger.
to extent, protects the property rights of landowners and
The lower court elltered summaly judgment based on the
prevents them from being held accountable as insurers of
who enter their property. obvious danger doctrine. The appellatecourt reversed, finding
virtuallyall that happens to others
See Aventura. that the lower court failed to properly consider all of the facts
and circumstances. The appellate court concluded that
This court and others have applied this doctrine to myriad whether the speed bump was
unsafe and whether the plaintiff
factual situations in which the conditions which caused the was negligent in failingto see it created questions of fact to be
injury were "simply so open and obvious, 4 so [*1066] resolved by the jury.
common and innocuous, that they can be held as
so ordinarily
a matter of law to not constitute a hidden dangerous Similar reasoning was adopted by the court in Hogan v.
condition." Circle K, 556 So. 2d at 1208 (uneven parking lot Chupka, 579 So. 2d 395 (Fla. 3d DCA 1991). In that case, the
surface located at a convenience store does not constitute a tripped on a broken and uneven edge of a sidewalk
plaintiff
hidden dangerous condition). See also Casby v. Flint, 520 So. and fell onto a parking lot located outside the defendanfs
2d 281 (Fla. 1988) (multiple floor levels in a dimly lit and store. The aspllaltof the parking lot "fell some inches short"
overcrowded room in a home are not inherentlydangerous of the sidewalk, creating a "gully"where the plaintiffsfoot
conditions);Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) became lodged as she tried to catch her balance after she
(because a difference in floor levels is not an inherently tripped. The court held that whether the store owner breached
his 7 by maintaining this condition
duty to the plaintiff a
dangerous condition, even in dim lighting,a homeowner has
is
no duty to warn of such condition as a matter of law); Bowles factual issue that should be resolved by a jury.
v. Elkes Pontiac Co., 63 So. 2d 769 (Fla. 1952) (uneven floor
Other courts insist on full consideration of all facts and
levels in public places do not constitute latent, hidden and
circumstances surrounding an incident and allegeddangerous
dangerous conditions); Aventura (six inch sidewalk curb
-", condition before determining whether the obvious danger
located at a mall is not a "concealed or latent danger").
doctrine applies or the condition is inherently dangerous as a
We agree wio,Die principlesestablished inoiese decisions maner of Iaw. See Nomhwest Florida Crippled Children's
that under most normal circumstances and conditions,
Association v. Harigel, 479 So. 2d 831 (Fla. lst DCA 1985);
ordinary sidewalk curbs, uneverl floor levels and uneven Kuppennan v. Levine, 462 So. 2d 90 (Fla. 4th DCA 1985).
lot surfaces do not as a matter of law constitute 5 Such considerations maintain the equilibrium between
parking
latent, concealed or
inherently dangerous conditions. competing policy considerations of protecting proprietary
interests and preventing harm caused by unreasonable and
However, these principlesare not so sterile that they are free
from all exception or totallyindependent of the particular unrestrained use of property, while also recognizing that the
facts and circumstances of each case. Quite to the contrary, existence of negligence always depends on the unique facts
courts have specifically acknowledged that facts and and circumstances from which a particular [*1067] cause of
action arises. See Spivey v. Battaglia, 258 So. 2d 815 (Fla
circumstances exist which do make such conditions
may
inherentlydangerous. For example, m Casby v. Flint, 520 So. 1972). We must determine under the facts aild circumstallces
Page 5 of 7
3
of this case whether the curb is not inherentlydangerous as a particulartime, make any step-down difficult to observe.
matter of law and whether the obvious danger doctrine applies These and circumstances clearlydistinguishthis case
facts
to prevent any recovery by the plaintiff. from the ordinary sidewalk curb in Aventura and the ridge in
the store parking lot in Circle 0 K, and we are thus unable to
The sidewalk and driveway 8 area where Mrs. Gorin fell is
determine as a matter of law that the condition which caused
utilized as a boarding area where the trains pick up and Mrs. Gorin's injury is so open and obvious that the obvious
When
danger doctrine would apply to prevent her recovery. We also
discharge their passengers. the trains drive into the
semicircular driveway the driver parks as close to the curb as cannot determine as a matter of law that a condition which
possible. There is nothing in the record which indicates that down from a curb and then back
requiresa passenger to step
there is any limitation, requirement, or restriction on how to the train is not inherently dangerous. These issues
up
close the train must come to the curb in order to drop off or which should be resolved by the
present factual questions
pick up passengers. One of the train drivers testified that
Jury.
"when we pull up, we pull up rightalongside the curb or as
close to it as, you know, feasiblypossible."The sidewalk, We are aware that the location where Mrs. Gorin fell is the
curb, and driveway are all the same color and there is nothing same location she had previouslytraversed when arrivingat
to distinguish the sidewalk from the driveway except the themuseum earlier that day. When she fell she was looking
actual drop-offor change in levels. where she was going but simply did not see the drop-off.
However, the fact that Mrs. Gorin may have been
The configuration of the sidewalk and driveway allows
comparatively negligent is not a circumstance which would
visitors to step from
directly the sidewalk onto the train if the
allow this court to decide as a matter of law that the
train happens to park close enough to the curb. If it does not, defendants were not negligent unless we find that her
visitors are required to step down from the sidewalk onto the
negligence was the sole cause of her injury.Under the given
driveway and then back up onto the train. The actual distance facts and circumstances, we cannot do so. See BO/ant,
passengers must travel on the driveway to board the train will, Spadq/bra v. Carlo, 569 So. 2d 1329 (Fla. 2d DCA 1990);
again, depend on how close the train parks to the curb. One of Stewart v. Boho, Inc., 493 So. 2d 95 (Fla. 4th DCA 1986).
the train drivers, when testifying9 that four or five other
ladies had fallen at the same spot, gave the most accurate Furthermore, while this court 1 has recognized that an owner
descriptionof how people board the train: or possessor of land is not liable to his invitees for harm
caused to them by any activityor condition on the land whose
What happens, when they see our train pullup, they just start
danger is known or obvious to them, we have also recognized
walking towards the train and that curb, it blends in with the that the owner or possessor may nevertheless be held liable if
rest of the concrete and when they head towards the train,
he anticipatesor should have anticipatedthat the harm will
they are just walking normally and don't realize there is a curb occur despite [*1068] the obviousness of the danger or the
there and that's when the accident happens...
invitee's knowledge of it. Hylazewski; Pittman.
4
See also
The fact that this location is used as a boarding ar
Preview
Filing# 175888628 E-Filed 06/22/2023 10:49:40 AM Rosenfeld v. Walt Disney World Co. Court of Appeal of Florida, Fifth District March 10, 1995, Filed CASE No. 94-1318 Reporter 651 So. 2d 811 *; 1995 Fla. App. LEXIS 2369 **; 20 Fla. L. Weekly D 632 the curbs and that an opticalillusion of flatness created by the LUCILLE ROSENFELD, et al.,Appellants, v. WALT colors of the curb and street does not make them inherentlyor DISNEY WORLD CO., Appellee. unreasonably dangerous, as a matter of law. (Form v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992), rev. Subsequent History: [**1] Released for Publication March denied 604 So. 2d 486 (Fla. 1992). Disney's Main Street 29,1995. curbs and streets are recreations of ordinaryvillageand town streets and curbs, although located in its amusement park. Prior History: Appeal from the Circuit Court for Orange That fact alone is not sufficient to remove Disney's ordinary County, James C. Hauser, Judge. streets and curbs from the category of open and obvious Disposition:AFFIRMED. hazards. Thus, this case is controlled by (Form. See also Aventura MaH Venture v. Olson, 561 So. 2d 319 (Fla. 3d Counsel: Dougald B. Leitch of Law Offices of Mahaffey & DCA), rev. denied, 574 So. 2d 142 (Fla. 1990). Leitch, Orlando, for Appellants. AFFIRMED. John Ward Smith of Roth, Edwards & Smith, P.A., Orlando, for Appellee. GOSHORN and DIAMANTIS, JJ.,concur. Judges: SHARP, W., J., GOSHORN and DIAMANTIS, JJ., concur. End of Document Opinion by: SHARP Opinion [*812] SHARP, W., J. The Rosenfelds appeal from a final summary judgment in favor of Walt Disney World Company. The trial court held Lucille Rosenfeld could not recover damages caused by her fall over a street curb on "Main Street USA," at the Magic Kingdom in Orange County, Florida, from Walt Dinsey World, the owner and operator of the theme park. The major thrust of the Rosenfelds' complaint was that the Disney property where Lucille a public amusement park, not a fell is public street, and that the curb, street and sidewalk were in such a colored artificially way as to create an optical illusion of flatness, which obscured the change of levels from Lucille's view, and created a hazard for guests and patrons visitingMain Street. This court has held en banc that changes in levels from **, ordinary curbs to streets do not r '2] subject a landowner to for injuriessuffered by persons fallingover premises liability *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/22/2023 10:49:39 AM.**** Gorin v. St. Augustine Court of Appeal of Florida, Fifth District March 13, 1992, Filed CASE NO. 90-1128, 90-1231 Reporter 595 So. 2d 1062 *; 1992 Fla. App. LEXIS 2480 **; 17 Fla. L. Weekly D 702 Lightner Museum. The city provides a semicircular driveway MARSHA GORIN, et al.,Appellants, vs. CITY OF ST. at the front entrance of the museum to eliminate obstruction to AUGUSTINE, FLORIDA, etc., et al.,Appellees. traffic on a main thoroughfare.A sidewalk, also provided by the city, abuts the driveway and requires a step up to the Subsequent History: Released for Publication April 1, 1992. sidewalk. The sidewalk and the driveway surfaces are of a Petition for Review Denied August 17, 1992, Reported at similar, if not the same, coloration. The Gorins arrived at the 1992 Fla. LEXIS 1490. museum, disembarked the tram, toured the museum, and Prior History: Appeal from the Circuit Court for St. Johns began the walk back to the tram on much the same route that County, Richard G. Weinberg, Judge. they had followed upon their arrival. When Mrs. Gorin arrived at the point where the sidewalk dropped to the level of AFFIRMED. the driveway, she fell. Later, she testified while being deposed Disposition: that, although she was watching where she was going, she did Counsel: Edward A. Perse of Perse, P.A. & Ginsberg, P.A. not see change in elevation nor the curb located the and Carroll & Halberg, P.A., Miami, for Appellants. approximately five or six feet from the train. William M. Corley and Clifford C. Higby, Jacksonville, for In addition to these facts, the evidence before the trial court at Appellee City of St. Augustine. the hearing on the motion for summary judgment included a Scott A. Cleary of Williams & Shad, P.A., Jacksonville, for report that a driver for the company operatingthe train told Mrs. Gorin that she had seen four or five persons fall off the Appellee Lightner Museum. curb and had reported it to someone at the museum. In a EN BANC. PETERSON, GOSHORN, DAUKSCH, Judges: deposition,the driver indicated that she had observed the falls COBB, COWART, HARRIS, DIAMANTIS, SHARP, during the two years and three or four months that she was GRIFFIN employed as a driver and had reported only one incident to the museum. That incident involved the simultaneous fall of Opinion by: PETERSON two women who were looking at the train rather than at the sidewalk. She also indicated that the reason for the incidents [*1063] is that persons waiting for the train become excited Opinion when they see the train arrivingand they fail to look where they are walking. Mrs. Gorin specifically testified that she was watching where she was walking and did not see the [*1062] PETERSON, J. curb. Another driver indicated in a depositionthat on a busy day approximately one thousand passengers would board the tram.The Gorins had filed an affidavit of an engineer which EN BANC indicated that the "lack of delineation between the steps for the sidewalk/street and tram areas creates an opticalillusion Marsha Gorin and her husband, Martin, appeal the summary with conflicting and confusing feedback particularly to judgment entered in favor of the defendants, two separate pedestrians in a vacational and recreational mood." The entities, City of St. Augustine and Lightner Museum, a engineer further opined that this was an inherently and Florida corporation not for profit.The Gorins brought the action as a result of injuriesMarsha sustained in a fall when unreasonably dangerous situation, that warning signs or yellow striping should be available, and that, had these she stepped down from a sidewalk to a roadway. We affirm. warnings been present, the accident would not have occurred. On August 28, 1986, Mr. and Mrs. Gorin boarded a train for a The Gorins conceded that there was no foreign substance or "break" in the curb that contributed to the fall. The surface tour of St. Augustine tourist sites, one of which is the Page 2 of 7 was dry and Mrs. Gorin's path was unobstructed. The city (Fla. 2d DCA 1990), to support their contention that summary manager testified in his depositionthat curbs within the city judgment should not have been entered for the defendants. are not marked except for parking restrictions, that the city The plaintiffin BO'ant was injured as she stepped from the built and maintained the curbs, and that Lightner Museum had sidewalk to the driveway below. She happened to choose the no responsibility to do so. point of descent where a speed bump had been constructed on the driveway below, causing an uneven surface upon which to The Gorins alleged that the City of St. Augustine was The Second District reversed the step. [*1064] summary negligent in maintaining an unsafe curb that was not judgment after determining that a factual 'questionwas raised adequately painted or marked. The trial court relied on as to when considering all circumstances, the whether, Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d should have seen the speed bump. Neither the curb plaintiff DCA), review denied, 574 So. 2d 142 (Fla. 1990), in granting nor the descent was an issue; [**7] the issue was whether the the defendallts' motions for summary judgment.Aventura defendant should have seen uneven tile surface, the speed involved a slip and fall from a six-inch sidewalk curb. The the termmation point of her descent. the instant bump, at Ill plaintiffalleged in that case that the curb was negligently case, the surfaces of both the sidewalk and the roadway were designed and maintained because it had not been painted even. yellow to warn of the change in elevation. Although the trial court entered judgment for the plaintiff after a jury verdict, The summary judgment in favor of the City of St. Augustine the Third District reversed, findingno inherent danger in the and LightnerMuseum is affirmed. color of the curb blending with the color of the driveway below. The court quoted from an earlier Florida Supreme AFFIRMED. Court opinion,Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1953), that "it is a matter of common knowledge GOSHORN, C.J., DAUKSCH, COBB, COWART, HARRIS, and DIAMANTIS, JJ.,concur. that 'the sidewalks and the drop-offs from such sidewalks to the streets have the same color as the streets in thousands of SHARP, W., J.,dissents with opinion. instances throughout Florida."' 561 So. 2d at 320. GRIFFIN, J., dissents with opinion in which SHARP, W., J., The facts in this case are strikinglysimilar to those in concurs. Aventura in that curbs, if painted, were for traffic control only; the weather was clear; the lightingwas adequate since Dissent by: W. SHARP; GRIFFIN the event took place during daylight hours; there was no foreign object on the surface; and the curb was plainlyvisible. Dissent The Aventura opinion also cited Stanley v. Morgan & Lindsey, Inc., 203 So. 2d 473 (Miss. 1967), in which that court concluded that a step-offfrom a sidewalk curb was not inherently dangerous although the plaintifftestified that "it SHARP, W., J.,dissenting. just looked like one big solid slab of concrete, all on the same I respectfully dissent. Although this is a close case, when in level." Aventura is also consistent with our earlier decision in doubt as to whether or not there is a material question of fact Circle K Convenience Stores, Inc. v. Ferguson, 556 So. ld in reviewing a summary judgment, the appellatecourt should 1207, 1208 (Fla. 5th DCA 1990), where we stated, "Some 1 give the benefit of the doubt to the nonmoving party, and conditions are simply so open and obvious, so common and concurred with a proposed allow a jury to resolve the issue. I so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition." We also opinion written by Judge Sawaya, an associate judge sitting with the original panel. I adopt and incorporate it in this agree with the Third [**6] District that "to hold that an opinion because it states the record and issues fully and ordinary sidewalk curb, without more, is inherentlydangerous would make accurately and demonstrates why the facts, taken most every municipality and business establishment do not create such an open and favorably to the plaintiffs, the virtual insurer of the safety of every pedestrian." obvious condition as to render the configuration of the [**( :81 Aventura, at 321. Given the high traffic of passengers boarding the tram, some will fall no matter what color the curb might be, especiallywhen the passengers are looking at the train rather than where they are walking as was the case in 1 See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Gonzalez v. Great the previous incidents witnessed by the train driver. Oaks Casualty Insurance Co., 574 So. 2d 1182, 1183 (Fla. 3d DCA 1991); Greene v. Kolpac Builders, Inc., 549 So. 2d 1150 (Fla. 3d The Gorins cite Bryant v. Lucky Stores, Inc, 577 So. 2d 1347 DCA 1989); Williams v. Florida Really & Management, 272 So. 2d 176, 177 (Fla.3d DCA 1973) Page 3 of 7 curb and sidewalk 1]gi inherentlydangerous as a matter of v. Lively,465 So. 2d 1270 (Fla. 3d DCA), rev. denied 476 So. law. 2d 674 (Fla. 1985). The issue of whether a legalduty exists is for the court to decide as a matter of law. Id. Whether that It reads: duty was breached is an issue to be decided by the jury unless only one reasonable conclusion may be drawn from the The plaintiffs, Marsha Gorin and her husband Martin, appeal evidence. 1 Lively,465 So. 2d 1270. an order on motion for summary judgment entered in their personal injury lawsuit in favor of the defendants, City of St.There are few areas in the law of negligence in which the Augustine aild the LiglltnerMuseum. This case origmated on concept of (lutyhas been more significalltin determining civil August 28, 1986, when Mrs. Gorin fell outside the Lighttler liability Largely based on than the area of premises liability. Museum, injuringher elbow and leg.The museum is owned the judiciallyperceived need to balance proprietaryrightsaid by the City of St. Augustine. On that date, Mr. and Mrs. Gorin interests (those privilegesaccorded the landowner to use his and their grandson took a tour of St. Augustine on a train property as he desires) with the necessityof protectingothers operated by St. Augustme Trams, Inc., which remams a from unreasonable hal?rrl that may be caused by the defendant in the trial proceedings. ?rhe train picked them up unrestrained use of various duties of care are property, and dropped [**9] them off at various tourist sites,including aiid occupiers. The extent imposed on landowiiers of the duty the Lightner Museum. Mrs. Gorin disembarked at the of care the cause of the harm in depends upon and, museum without incident, completed a tour and returned harm appropriatecases, the status of the entrant. If the is outside to reboard the train. While walking toward the train,caused by the active conduct or personal negligence of the Mrs. Gorin missed a step over a curb and fell, sustailling landowner, his (lutyis to exercise reasonable care to prevent Mrs. Gorin testifiecl that she Was WatcllingWhereshe injuries. hann totllirdparties. Maldonado v.Jack Grove M.Bem was going but was unaware of the curb and did not see any 351 So. 2d 967 Hix 284 So. 2d Corp, (Fla. 1977); v. Billen, change in levels. 209 (Ba. 19131 Seaboard System Railroad, Inc. v. Mells, 528 So. 2d 934 (Fla. 1st DCA 1988). However, as in this case, Mrs. Gorin fell at a location in front of the museum where the when alleged that the injury was caused by an inherently it is trainsdischarge and pick up passengers. A semicircular dangerous condition on the 2 premises the status of the driveway abuts the sidewalk in this location and the trains injured party determines the duty owed. Id. The three drive into this driveway and park as close to the sidewalk as categories of entrants in the order of decreasing status are possible. There is a drop-off from the sidewalk curb to the invitees, licensees, and trespassers. The corresponding duty driveway which is maintained by the City of St. Augustine. of the landowner or and, therefore, the potentialliability The sidewalk, curb, and driveway are all the same color and 1 occupier decreases as the status of the entrant decreases. no markings to distinguishthe change in levels. Four there are Under the facts of this case Mrs. Gorin occupies the status of or five other women have on prior occasions in the fallen an This requiresthe owner or occupier to exercise the invitee. same location and in the same manner as Mrs. Gorin. These highest duty of care owed to any of the three categories of incidents were reported to the defendants prior to Mrs. Gorin's entrants. The defendants thus owed Mrs. Gorin the duty to accident. keep the premises in a reasonably safe condition and warn her The lower court concluded that the defendants had not of Uent perils. Spaulding v. City of Melbourne, 413 So. 2d breached any legalduty owed to Mrs. Gorm as all mvitee and 226 (Fla. 5th DCA 1985); Hylazewski v. Wet Wild, Inc., ' N 0 were, therefore, not negligent.The court reasoned that the 432 So. 2d 1371 (Fla. 5th DCA 1983); Pittman v. Volusia condition on the premises which caused Mrs. Gorin's injury is County, 380 So. 2d 1192 (Fla. 5th DCA 1980). open and obvious and does not constitute an inherently dangerous condition as a matter of law. We reverse. 1 The duty owed to an invitee is to keep the property in a reasonably [*1065] Negligence is commonly defined as the failure to safe condition and to warn the invitee of concealed dangers which use that degree of care, diligenceand skill that is one's legal are known or should be known to the landowner and which are unknown to the invitee and cannot be discovered by him in the duty to use ill order to protect another from injury. Miriam Mascheck Inc. v. Mausner, 264 So. 2d 859 (Fla. 3d DCA exercise of due care. Spaulding v. City of Melbourne, 473 So. 2d As an essential element of 226 (Fla. 5th DCA The duty owed to a licensee is not to 1985). 1972). any negligence action, the intentionallyharm wam him of known dangers. Wood v. him and to plaintiffmust establish the existence of a duty recognized by Camp, 284 So. 2d 691 (Fla. 1973). The duty owed to a trespasser is law which requires the defendant to conform to a certain to avoid willful and wanton harm and upon discovery of his presence standard of conduct for the protection of others against to warn him of known dangers not open to ordinary observation. Id.; unreasonable risks. Westchester Exxon v. Faldes, 524 So. 2d Bovino v. Metropolitan Dade County, 378 So. 2d 50 (Fla. 3d DCA 452 (Fla. 3d DCA 1988); Florida Power and Light Company 1979). Page 4 of 7 The defendants contend that the condition of the premises 2d at 282, the court stated "We recognize that accompanying which caused Mrs. Gorin's injury is neither latent nor circumstances may transform a change in floor levels into a concealed but rather open and obvious. Therefore, they argue dangerous situation creating a duty to warn." And in Schoen that the legalduty owed to her as an invitee does not require v. Gilbert, 436 So. 2d at 76, quoting Hoag v. Moeller, 82 So. them to give notice or warning of this obvious condition. 3 2d 138, 139 (Fla. 1955), the court held that "a difference in The obvious danger doctrine recognizes that owners and floor levels does not of itself constitute failure to use due care occupiers should be legallypermitted to assume that invitees ...." (Emphasis added). Moreover, the Aventura court will perceive conditions obvious to them upon the ordinary observed, after finding that ordinary curbs are not inherently use of their own senses. Aventura MaH Venture v. Olson, 561 dangerous, "this was not a case where the surrounding So. 2d 319 (Fla. 3d DCA), review denied 574 So. 2d 142 conditions of the step-down were sufficient to transform a (Fla. 1990); Circle K Convenience Stores, Inc. v. Ferguson, normally non-negligentcondition into a negligentone." Id. at 556 So. 2d 1207 (Fla. 5th DCA 1990). In these situations the 320. courts reason that if any negligence exists, full responsibility for its results should be borne by the plaintiffunder In Bgantv. Luc* Stores. Inc.. 570 So. 2d 950 (Fla.2d DCA 1990) 6 the plaintifffell whell she stepped down from a See, e.g., Matson v. Tip comparative negligence principles. sidewalk omoaspeedmmp locatedina fwelanein fromof Top Groceg CMM?3,.M.,151 Fla 247,9 So. Zd 366 Cfla The courts also regard public policy considerations as the store.She brought suit claiming that the sidewalk and 1942). for adopting this importantjustification rule. The rule, at least speed bump were unsafely designed and that the defendants some breached their duty to her by failingto warn her of the danger. to extent, protects the property rights of landowners and The lower court elltered summaly judgment based on the prevents them from being held accountable as insurers of who enter their property. obvious danger doctrine. The appellatecourt reversed, finding virtuallyall that happens to others See Aventura. that the lower court failed to properly consider all of the facts and circumstances. The appellate court concluded that This court and others have applied this doctrine to myriad whether the speed bump was unsafe and whether the plaintiff factual situations in which the conditions which caused the was negligent in failingto see it created questions of fact to be injury were "simply so open and obvious, 4 so [*1066] resolved by the jury. common and innocuous, that they can be held as so ordinarily a matter of law to not constitute a hidden dangerous Similar reasoning was adopted by the court in Hogan v. condition." Circle K, 556 So. 2d at 1208 (uneven parking lot Chupka, 579 So. 2d 395 (Fla. 3d DCA 1991). In that case, the surface located at a convenience store does not constitute a tripped on a broken and uneven edge of a sidewalk plaintiff hidden dangerous condition). See also Casby v. Flint, 520 So. and fell onto a parking lot located outside the defendanfs 2d 281 (Fla. 1988) (multiple floor levels in a dimly lit and store. The aspllaltof the parking lot "fell some inches short" overcrowded room in a home are not inherentlydangerous of the sidewalk, creating a "gully"where the plaintiffsfoot conditions);Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) became lodged as she tried to catch her balance after she (because a difference in floor levels is not an inherently tripped. The court held that whether the store owner breached his 7 by maintaining this condition duty to the plaintiff a dangerous condition, even in dim lighting,a homeowner has is no duty to warn of such condition as a matter of law); Bowles factual issue that should be resolved by a jury. v. Elkes Pontiac Co., 63 So. 2d 769 (Fla. 1952) (uneven floor Other courts insist on full consideration of all facts and levels in public places do not constitute latent, hidden and circumstances surrounding an incident and allegeddangerous dangerous conditions); Aventura (six inch sidewalk curb -", condition before determining whether the obvious danger located at a mall is not a "concealed or latent danger"). doctrine applies or the condition is inherently dangerous as a We agree wio,Die principlesestablished inoiese decisions maner of Iaw. See Nomhwest Florida Crippled Children's that under most normal circumstances and conditions, Association v. Harigel, 479 So. 2d 831 (Fla. lst DCA 1985); ordinary sidewalk curbs, uneverl floor levels and uneven Kuppennan v. Levine, 462 So. 2d 90 (Fla. 4th DCA 1985). lot surfaces do not as a matter of law constitute 5 Such considerations maintain the equilibrium between parking latent, concealed or inherently dangerous conditions. competing policy considerations of protecting proprietary interests and preventing harm caused by unreasonable and However, these principlesare not so sterile that they are free from all exception or totallyindependent of the particular unrestrained use of property, while also recognizing that the facts and circumstances of each case. Quite to the contrary, existence of negligence always depends on the unique facts courts have specifically acknowledged that facts and and circumstances from which a particular [*1067] cause of action arises. See Spivey v. Battaglia, 258 So. 2d 815 (Fla circumstances exist which do make such conditions may inherentlydangerous. For example, m Casby v. Flint, 520 So. 1972). We must determine under the facts aild circumstallces Page 5 of 7 3 of this case whether the curb is not inherentlydangerous as a particulartime, make any step-down difficult to observe. matter of law and whether the obvious danger doctrine applies These and circumstances clearlydistinguishthis case facts to prevent any recovery by the plaintiff. from the ordinary sidewalk curb in Aventura and the ridge in the store parking lot in Circle 0 K, and we are thus unable to The sidewalk and driveway 8 area where Mrs. Gorin fell is determine as a matter of law that the condition which caused utilized as a boarding area where the trains pick up and Mrs. Gorin's injury is so open and obvious that the obvious When danger doctrine would apply to prevent her recovery. We also discharge their passengers. the trains drive into the semicircular driveway the driver parks as close to the curb as cannot determine as a matter of law that a condition which possible. There is nothing in the record which indicates that down from a curb and then back requiresa passenger to step there is any limitation, requirement, or restriction on how to the train is not inherently dangerous. These issues up close the train must come to the curb in order to drop off or which should be resolved by the present factual questions pick up passengers. One of the train drivers testified that Jury. "when we pull up, we pull up rightalongside the curb or as close to it as, you know, feasiblypossible."The sidewalk, We are aware that the location where Mrs. Gorin fell is the curb, and driveway are all the same color and there is nothing same location she had previouslytraversed when arrivingat to distinguish the sidewalk from the driveway except the themuseum earlier that day. When she fell she was looking actual drop-offor change in levels. where she was going but simply did not see the drop-off. However, the fact that Mrs. Gorin may have been The configuration of the sidewalk and driveway allows comparatively negligent is not a circumstance which would visitors to step from directly the sidewalk onto the train if the allow this court to decide as a matter of law that the train happens to park close enough to the curb. If it does not, defendants were not negligent unless we find that her visitors are required to step down from the sidewalk onto the negligence was the sole cause of her injury.Under the given driveway and then back up onto the train. The actual distance facts and circumstances, we cannot do so. See BO/ant, passengers must travel on the driveway to board the train will, Spadq/bra v. Carlo, 569 So. 2d 1329 (Fla. 2d DCA 1990); again, depend on how close the train parks to the curb. One of Stewart v. Boho, Inc., 493 So. 2d 95 (Fla. 4th DCA 1986). the train drivers, when testifying9 that four or five other ladies had fallen at the same spot, gave the most accurate Furthermore, while this court 1 has recognized that an owner descriptionof how people board the train: or possessor of land is not liable to his invitees for harm caused to them by any activityor condition on the land whose What happens, when they see our train pullup, they just start danger is known or obvious to them, we have also recognized walking towards the train and that curb, it blends in with the that the owner or possessor may nevertheless be held liable if rest of the concrete and when they head towards the train, he anticipatesor should have anticipatedthat the harm will they are just walking normally and don't realize there is a curb occur despite [*1068] the obviousness of the danger or the there and that's when the accident happens... invitee's knowledge of it. Hylazewski; Pittman. 4 See also The fact that this location is used as a boarding ar