MMP&S Partner Crystal L. Arocha secured a per curiam affirmance of summary judgment from the District Court of Appeal of Florida, Second District, with attorneys’ fees.  MMP&S represented the Defendant/Appellee, the Owner/Developer of two-story residential condominium communities in Florida.  Plaintiff/Appellant was an engineering inspector trainee, whose company was blanket contracted by the Owner/Developer to perform construction engineering inspections of construction jobsites.  On the date of incident, Appellant and his supervisor/employer arrived at a jobsite, saw no one, entered an unfinished two-story structure, climbed a ladder through an unfinished stairwell opening, commenced inspection by walking around carrying a 12’ pole with a mirror duct-taped to the end, and while looking up at the mirror, in full view of his supervisor, the Appellant fell back through the very same hole he had just climbed up through.  He sustained serious injuries and over $1 million in medical bills, recovered workers’ compensation, and sued the Owner/Developer.  After extensive discovery, the record demonstrated they failed to secure permission to enter, failed to utilize fall protection, failed to notice the hazards inherent in their profession of conducting professional engineering inspections, and failed in their contractual duty to recognize and report on all safety concerns.

The Third, Fourth, and Fifth District Courts of Appeal follow case law recognizing that a condition can be so very open and obvious and personally known to the complaining party to such a degree, as to obviate any duty to warn or make safe.  They also recognize that others do not have a duty to protect a professional from the hazards inherent to his chosen profession.

The Second District follows a different line of case law.

In the Second District, the law imposes a duty to make premises safe, even for open and obvious conditions actually known to the complaining party, and even if related to their profession.  However, this duty is limited to premises within the scope of the invitation.  The record was undisputed that no one directed the trainee and his supervisor to enter this jobsite or this structure, and in fact, no one was even present.  The contract expressly required they wait for direction and invitation, and they failed to do so.  The Second District upheld the trial court’s ruling recognizing that that the scope of invitation to a business invitee, when defined by contract, is limited to those areas within the express invitation.  If a business invitee wanders outside of that scope of invitation, he becomes an uninvited licensee in those areas outside the invitation.  The Owner is not required to make safe areas of premises to which no one is expected or invited to enter.  Absent that invitation, the Plaintiff/Appellant was reduced to the status of an uninvited licensee, owed only the duties to warn of hazards not readily observable upon inspection, and to avoid intentional harm.   Neither of those duties having been breached, the summary judgment granted below was upheld with finality.

Practice Areas: Construction Accidents, Appellate Practice