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Circle K Convenience v. Ferguson

District Court of Appeal of Florida, Fifth District
Feb 15, 1990
556 So. 2d 1207 (Fla. Dist. Ct. App. 1990)

Summary

holding that condition was "so open and obvious, so common and so ordinarily innocuous" that it was not dangerous as a matter of law where plaintiff tripped over joint in gas station parking lot where concrete met asphalt

Summary of this case from Brookie v. Winn-Dixie Stores, Inc.

Opinion

No. 89-519.

February 15, 1990.

Appeal from the Circuit Court, Citrus County, William F. Edwards, J.

A. Wade James of Hampp Schneikart, P.A., St. Petersburg, for appellants.

Glen C. Abbott of Crider Abbott, P.A., Crystal River, for appellee.


Landowner, a convenience store with gas pumps, has an asphalt parking lot in which is located areas of concrete which apparently cover underground gasoline tanks. The joint where the asphalt and concrete meet is not perfect, the concrete being at places higher than the asphalt. Invitee stubbed her toe on the ridge between these surfaces and suffered injuries for which she sued the convenience store. The accident occurred at 2:30 p.m. on a dry and sunny day in the open parking lot where nothing obstructed a view of the surface of the parking lot.

At trial, at the close of the invitee's case, the trial judge directed a verdict for the landowner based on Casby v. Flint, 520 So.2d 281 (Fla. 1988) and Hoag v. Moeller, 82 So.2d 138 (Fla. 1955). Thereafter, however, the court granted invitee's motion for new trial based on the argument that the jury could have found the edge between the concrete and asphalt constituted a hidden danger under Pensacola Restaurant Supply Co. v. Davison, 266 So.2d 682 (Fla. 1st DCA 1972).

After a review of the issues and evidence in the case, we hold the trial judge was correct in directing a verdict for the landowner and in error in granting a new trial. Some conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition. In addition to Casby and Hoag, see Schoen v. Gilbert, 436 So.2d 75 (Fla. 1983); Bowles v. Elkes Pontiac Co., 63 So.2d 769 (Fla. 1952); K.G. v. Winter Springs Community Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987); McAllister v. Robbins, 542 So.2d 470 (Fla. 1st DCA 1989); Crawford v. Miller, 542 So.2d 1050 (Fla. 3d DCA 1989); and Prager v. Marks Brothers Co., 483 So.2d 881 (Fla. 3d DCA 1986). See also, Winn-Dixie Stores, Inc. v. Marcotte, 553 So.2d 213 (Fla. 5th DCA 1989) and Haynes v. Lloyd, 533 So.2d 944 (Fla. 5th DCA 1988).

The order granting new trial is

REVERSED.

HARRIS and PETERSON, JJ., concur.


Summaries of

Circle K Convenience v. Ferguson

District Court of Appeal of Florida, Fifth District
Feb 15, 1990
556 So. 2d 1207 (Fla. Dist. Ct. App. 1990)

holding that condition was "so open and obvious, so common and so ordinarily innocuous" that it was not dangerous as a matter of law where plaintiff tripped over joint in gas station parking lot where concrete met asphalt

Summary of this case from Brookie v. Winn-Dixie Stores, Inc.

finding that an uneven parking lot surface located at a convenience store does not constitute a hidden dangerous condition

Summary of this case from Krol v. City of Orlando

affirming directed verdict where invitee stubbed toe on parking lot's uneven surface

Summary of this case from Potash v. Orange County Lake Country Club, Inc.

In Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990), Judge Cowart noted that "[s]ome conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition."

Summary of this case from Turner v. Winn-Dixie Food Stores, Inc.

In Circle K, the allegedly dangerous condition was in a parking lot where a joint was formed between concrete and asphalt surfaces.

Summary of this case from Turner v. Winn-Dixie Food Stores, Inc.
Case details for

Circle K Convenience v. Ferguson

Case Details

Full title:CIRCLE K CONVENIENCE STORES, INC., ETC., APPELLANTS, v. THELMA FERGUSON…

Court:District Court of Appeal of Florida, Fifth District

Date published: Feb 15, 1990

Citations

556 So. 2d 1207 (Fla. Dist. Ct. App. 1990)

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