Opinion
No. 89-2357.
August 1, 1990.
Appeal from the Circuit Court, Indian River County, L.B. Vocelle, J.
J. Russell Thacker of Sullivan, Stone, Sullivan, LaJoie and Thacker, Vero Beach, for appellant.
Janet DeLaura Harrison of Smalbein, Johnson, Rosier, Bussey, Rooney Ebbets, P.A., Rockledge, for appellee.
This is an appeal from a summary final judgment. We reverse and note that the parking bumper which caused this plaintiff's injury may have been the same which occasioned the court's split decision for a subsequently occurring injury in Ackerman v. Florida Federal Sav. Loan Ass'n, 537 So.2d 687 (Fla. 4th DCA 1989). We say may because the record, as it exists, does not make clear upon which parking bumper appellant fell.
From a photograph, it appears as if the parking bumper is not placed at the center of the parking spot; rather, it is set to the side so that it almost touches the parking stripe. The majority here is of the opinion that maintaining the bumper in this position could constitute negligence. Common experience reveals that customers are not meticulously careful when parking by stores, post offices, banks, theaters, or any other public venue. That the landowner should have maintained its property to provide customers an unimpeded path between parking spaces which have bumpers is a question for the jury.
Furthermore, the normal position for a parking bumper is at the top center of the parking space. Whether it constitutes comparative negligence for the hurried, unfamiliar, or daydreaming occupant of a vehicle to fail to notice a parking bumper shoved to one side, almost to the stripe dividing the spaces, is also a question for the jury. Summary final judgment, on this record, was inappropriate.
ANSTEAD, J., concurs specially with opinion.
WARNER, J., dissents without opinion.
Although the parking bumper involved herein is apparently the same one involved in the Ackerman case, the circumstances of this case can be distinguished from Ackerman because of the admission in that case by the claimant that she saw the bumper and tripped over it because she misjudged its placement and size. Nevertheless, I agree with Judge Gunther's opinion and dissent in Ackerman:
I respectfully dissent. In my view, the summary judgment entered in favor of Florida Federal Savings and Loan Association (Association) should be reversed. Catherine Ackerman (Ackerman) sued the Association for injuries she sustained when she tripped over a parking bumper that was in front of the space in which her car was parked.
I agree with the majority that as a matter of law, the Association had no duty to warn the plaintiff of the parking bumper's existence. Since the bumper was off-white or gray in color, it was readily distinguishable from the black asphalt surface and was therefore not a concealed peril. However, since the particular bumper that Ackerman tripped over may have been placed in an unusual position, genuine issues of material fact remain as to whether the Association breached its duty to maintain the bumper in a reasonably safe condition.
The test for determining whether the Association maintained the lot in a reasonably safe condition is whether the invitee could reasonably expect to find a bumper in this condition. See e.g., Evans v. Hartford, 303 So.2d 682 (Fla. 4th DCA 1974). Photographs in the record demonstrate that the overall design of this lot was one that an invitee could reasonably expect to find since the other bumpers were placed at the front of the parking spaces and were centered between the lines which demarcate the spaces. However, the photographs together with deposition testimony indicate that the bumper Ackerman tripped over may have been positioned off center such that it touched the left line defining the parking space in which the plaintiff had parked her car. Thus, in my view, a jury question remains as to whether the plaintiff could "reasonably expect" to find a bumper in this unusual position.
Furthermore, a jury question also remains as to whether the plaintiff was the sole proximate cause of her own injuries. If the placement of this bumper was in any way causally related to the plaintiff's injury, the plaintiff was not the sole proximate cause of her injury. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). In that event, it would be within the province of the jury to determine the comparative negligence of the parties and apportion fault accordingly. Id. at 1195. In my view, a jury question remains on this issue because we cannot say that the placement of this bumper was in no way causally related to the plaintiff's fall.
Therefore, I would reverse the summary judgment because questions of fact remain as to whether the Association breached its duty to maintain the bumper strips in its parking lot in a reasonably safe condition and as to whether the plaintiff was the sole proximate cause of her own injuries.