Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2507 _____________________________ MARTA DUDOWICZ, Appellant, v. THE PEARL ON 63 MAIN, LTD., Appellee. _____________________________ On appeal from the Circuit Court for Walton County. David W. Green, Judge. July 20, 2021 PER CURIAM. In this appeal from a summary final judgment, Appellant claims that the trial court erred in granting Appellee’s motion for summary judgment on Appellant’s premises liability claim. We conclude that the trial court correctly determined as matter of law that Appellee had no duty to warn Appellant of an open and obvious change in floor level on Appellee’s premises. However, we further conclude that the trial court erred in granting summary judgment for Appellee insofar as there was a genuine issue of material fact as to whether Appellee maintained its premises in a reasonably safe condition. I. Appellant was a registered guest at Appellee’s hotel when she tripped and fell in her hotel room, causing her to suffer serious permanent injuries. The parties agreed that photographs taken by Appellant’s husband accurately depicted the area where Appellant fell, which showed an unbeveled, 3/8-inch change in elevation between the tiled entryway and the carpeted floor of the hotel room. Appellant claimed that she was entitled to damages from her fall because Appellee breached both its duty to warn and its duty to maintain the premises in a reasonably safe condition. Appellee moved for summary judgment alleging that the open and obvious difference in floor levels did not constitute a dangerous or hazardous condition sufficient to create a duty to warn or to take any necessary corrective action. Appellee also claimed that Appellant and her husband conceded that the difference in the height of the carpet and the tile flooring was obvious. Appellant opposed summary judgment on the grounds that (1) the change in floor level was not open and obvious insofar as the change in elevation was subtle and not noticeable when one first entered the hotel room; (2) Appellee mischaracterized the deposition testimony of Appellant and her husband, which did not constitute an admission that the change in elevation was obvious; and (3) the unbeveled 3/8-inch change in elevation violated applicable building codes and was prima facie evidence of Appellee’s negligence. As to the code violation, Appellant cited section 7.1.6.2 of the Life Safety Code of the National Fire Protection Association (NFPA), which provides in pertinent part: Abrupt changes in elevation of walking surfaces shall not exceed 1/4 in. (6.3 mm). Changes in elevation exceeding 1/4 in. (6.3 mm), but not exceeding 1/2 in. (13 mm), shall be beveled with a slope of 1 in 2. Appellant further noted that this provision (1) was incorporated into the Florida Building Code and the Florida Fire Prevention Code, which in turn were incorporated into the Walton County Code of Ordinances; and (2) was identical to the standards of ASTM International, the Americans with Disabilities Act (ADA), 2 and the American National Standards Institute (ANSI). Appellant requested that the trial court take judicial notice of these rules and standards. After holding a hearing, the trial court entered final summary judgment for Appellee. In doing so, the court found that “[n]o genuine issue exists as to the material facts of the case” and that “[b]oth the photographs of the area in question and the testimony of the plaintiff and her husband remove any doubt that the differences between the flooring areas was open and obvious.” The court further found that “[t]he law is clear in Florida that a difference in floor levels is not an inherently dangerous condition, and that an owner has no duty to warn of such condition, as a matter of law.” Because the difference in floor levels was not inherently dangerous and the ordinary use of Appellant’s senses would have disclosed the condition to her, the court concluded, as a matter of law, “that the undisputed facts establish that the defendant could not be found negligent[.]” This appeal followed. II. A summary judgment is reviewed de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Denson v. SM-Planters Walk Apts., 183 So. 3d 1048, 1050 (Fla. 1st DCA 2015). The appellate court must examine the record in a light most favorable to the nonmoving party and determine whether the moving party has shown conclusively the complete absence of any genuine issue of material fact. Gorham v. Zachry Indus., Inc., 105 So. 3d 629, 632 (Fla. 4th DCA 2013). * “A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases.” Deese v. McKinnonville Hunting * Effective May 1, 2021, the Florida Supreme Court has amended Florida Rule of Civil Procedure 1.510(c) to adopt the summary judgment standard of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See In re: Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020). “That standard does not apply in this case, which predates the amendment.” Garbark v. Gayle, 312 So. 3d 1286, 1288 n.* (Fla. 1st DCA 2021). 3 Club, Inc., 874 So. 2d 1282, 1286 (Fla. 1st DCA 2004). “If the record reflects even a possibility of a material issue of fact, then summary judgment must be denied.” Id. In premises liability cases, the plaintiff must show the defendant had actual or constructive notice of the dangerous condition on its premises, the defendant owed a duty to protect the plaintiff from the dangerous condition, the defendant breached that duty, there was a causal connection between the defendant’s breach and the plaintiff’s fall, and the plaintiff suffered damages as a result. Oliver v. Winn-Dixie Stores, Inc., 291 So. 3d 126, 128– 29 (Fla. 4th DCA 2020). “[A] business owner owes two ‘separate and distinct’ duties to business invitees: ‘1) to warn 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) to use ordinary care to maintain its premises in a reasonably safe condition.’” Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129, 1131 (Fla. 1st DCA 2017) (quoting Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011)). “While the fact that a danger is obvious discharges a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain his premises.” De Cruz-Haymer v. Festival Food Market, Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013). Appellant asserts that genuine issues of material fact exist as to whether Appellee breached its duties to warn and to maintain its premises. A. As to the duty to warn, the trial court found no breach because the change in floor levels was open and obvious. “The law is well settled ‘that a difference in floor levels does not of itself constitute failure to use due care for the safety of a person invited to the premises and there is no duty to issue warning of such condition when it is obvious and not inherently dangerous.’” Schoen v. Gilbert, 436 So. 2d 75, 76 (Fla. 1983) (quoting Hoag v. Moeller, 82 So. 2d 138, 139 (Fla. 1955)). However, “accompanying circumstances may transform a change in floor levels into a dangerous situation, creating a duty to warn.” Casby v. Flint, 520 So. 2d 281, 282 (Fla. 1988). Such circumstances include “an uncommon design or mode of construction creating a hidden danger which a prudent invitee would not anticipate.” Id. 4 Although Appellant claimed that she did not notice the 3/8- inch change in floor level when she entered the hotel room, it is undisputed that she initially crossed the transition area and did not trip until she walked back from the carpeted area to the tiled entryway. From this latter vantage point, the photographs clearly show the change in floor levels, which is accentuated by the change in flooring materials. Given the open and obvious change in floor level, the trial court correctly determined that Appellee had no duty to warn Appellant of the condition. See Earley v. Morrison Cafeteria Co. of Orlando, 61 So. 2d 477, 478 (Fla. 1952) (affirming summary judgment for defendant where a customer was injured when she tripped on an unbeveled mat, which was between a quarter and half inch thick, in the vestibule of defendant’s cafeteria while making an exit after having crossed the mat when making an entrance because any danger was not latent or concealed, but patent and obvious, and the ordinary use of the customer’s senses would have disclosed it to her); Sari v. Aetna Cas. & Sur. Co., 452 So. 2d 64, 65 (Fla. 3d DCA 1984) (“We conclude that the step-down between the tile floor of an apartment hallway and the carpeted, necessarily flexible, pile surface of the adjacent bedroom which came to the same level, and upon which the plaintiff fell, was so obvious that, as a matter of law, neither warning nor correction of the condition was required.”); see also Strickler v. Walmart, Inc., No. 2:18-cv-781-FtM-38MRM, 2020 WL 2308306, at *6 (M.D. Fla. May 8, 2020) (concluding that defendant store had no duty to warn plaintiff about an unbeveled, approximately half-inch lip at the entrance threshold to defendant’s restroom area because it was an open and obvious change in floor level). B. Even if there was no duty to warn, this did not discharge Appellee’s duty to maintain its premises in a reasonably safe condition. Specifically, Appellant claimed that the unbeveled, 3/8- inch change in the hotel room’s floor level was a dangerous condition because it violated a building code requirement that elevation changes over a quarter inch and less than half an inch be beveled. 5 “Because a ‘building code is designed to protect the general public rather than a particular class of individuals,’” a violation constitutes prima facie evidence of negligence, but does not establish negligence per se. Lindsey v. Bill Arflin Bonding Agency Inc., 645 So. 2d 565, 567 (Fla. 1st DCA 1994). Thus, a building code violation can transform a floor level change into a dangerous condition. See Liberty Mut. Ins. Co. v. Kimmel, 465 So. 2d 606, 607 (Fla. 3d DCA 1985) (affirming the jury’s verdict for plaintiff, who was injured when she fell at a change of levels while exiting defendant’s country club, because “there was undisputed evidence that the walkway in question was built contrary to the South Florida Building Code, which in and of itself is evidence of negligence”); see also 41 Fla. Jur. 2d, Premises Liability § 90 (2020) (“Further, where a change in levels violates the building code, liability may be imposed.”); Spadafora v. Carlo, 569 So. 2d 1329, 1331 (Fla. 2d DCA 1990) (“The fact that the stairway substantially violates the building code may be enough to distinguish it from the step down in Schoen.”). Citing various building code provisions, Appellant established that changes in elevation exceeding one-quarter of an inch but not exceeding one-half of an inch were required to be beveled. Because it is undisputed that the unbeveled change in the hotel room’s floor level was 3/8 of an inch, Appellant provided evidence of a building code violation, which constituted prima facie evidence of negligence. See Doering v. Villages Operating Co., 153 So. 3d 417, 418 (Fla. 5th DCA 2014) (determining that evidence of a building code violation, i.e., failure to bevel any elevation changes over a quarter inch, could be used to support plaintiff’s claim that defendant’s property was not maintained in a reasonably safe condition). Although Appellee contends that Appellant could not rely on an unauthenticated insurance adjuster’s report to assert that there was a building code violation, Appellant could establish a building code violation based on the plain language of the applicable code provisions. See Lindsey, 645 So. 2d at 568 (“Expert testimony as to the meaning of an ordinance is not appropriate when the disputed language consists of ‘ordinary words susceptible to being given plain effect consistent with their ordinary meaning.’”) (quoting T.J.R. Holding Co., Inc. v. Alachua Cnty., 617 So. 2d 798, 800 (Fla. 1st DCA 1993)); see also Sanford v. Omni Hotels Mgmt. Corp., 762 F. App’x 818, 823–24 (11th Cir. 2019) 6 (holding that the guest in a hotel restaurant was not required to offer expert testimony to create a genuine dispute of material fact about whether the hotel operator had a duty to warn her about a change in floor level). Finally, to the extent Appellee claims that it had no constructive notice of the allegedly dangerous condition, constructive notice of the condition may be inferred where the condition existed for a sufficient length of time that the condition should have been known to Appellee through the exercise of due care. See Grimes v. Family Dollar Stores of Fla., Inc., 194 So. 3d 424, 427–28 (Fla. 3d DCA 2016). Accordingly, the trial court erred in granting summary judgment for Appellee insofar as there was a genuine issue of material fact as to whether Appellee maintained its premises in a reasonably safe condition. See Strickler, 2020 WL 2308306, at *8 (denying defendant’s motion for summary judgment because there was a genuine issue of material fact as to defendant’s duty to maintain its store in a reasonably safe condition where plaintiff offered evidence that the unbeveled, approximately half-inch lip at the entrance threshold to defendant’s restroom area violated the ADA). III. We affirm the trial court’s determination that Appellee had no duty to warn Appellant of an open and obvious change in floor level on Appellee’s premises. However, we reverse the entry of summary judgment for Appellee and remand for further proceedings insofar as there was a genuine issue of material fact as to whether Appellee maintained its premises in a reasonably safe condition. AFFIRMED in part; REVERSED in part; and REMANDED. ROWE, C.J., and ROBERTS and JAY, JJ., concur. 7 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Harold R. Mardenborough and Herbert Lester McFatter of Perry & Young, P.A., Panama City, for Appellant. Hinda Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for Appellee. 8