Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STEPHANIE PIO, Appellant, v. SIMON CAPITAL GP; MACY'S FLORIDA STORES, LLC; and LUKE'S LANDSCAPING, INC., Appellees. No. 2D21-1621 July 7, 2023 Appeal from the Circuit Court for Pinellas County; Cynthia J. Newton, Judge. Robert J. Healy, Jr., of Salter, Healy, Rivera & Heptner, St. Petersburg, for Appellant. Kathryn E. Collier and Scott B. Albee of Fulmer, Leroy & Albee, PLLC, St. Petersburg, for Appellee Simon Capital GP. No appearance for remaining Appellees. MORRIS, Judge. Stephanie Pio appeals a final summary judgment entered in favor of defendant Simon Capital GP (hereinafter referred to as Simon). We affirm for the reasons explained below. Pio filed a complaint for negligence against Macy's; Simon, the operator of the mall; and Luke's Landscaping, the company responsible for landscaping at the mall. Pio alleged that she injured herself when she stepped in a concealed hole or depression in a grass bed in a raised landscaped area of the parking lot of Macy's at Tyrone Square Mall in St. Petersburg. The landscaped area runs along a sidewalk that leads from the mall's grand entrance down to the public sidewalk on the main boulevard surrounding the mall. The landscaped area separates the parking spaces from the sidewalk. Pio parked perpendicular to the landscaped area, stepped over the curb onto the landscaped area, and walked through the grass to reach the sidewalk. The landscaped area consists of grass, trees, mulch, shrubs, and landscape lighting near the grass bed where Pio was injured. Pio alleged that a palm tree had been removed from the area and that the hole created by the removal had not been properly filled. Pio argued that the defendants failed to maintain the premises in a reasonably safe condition, failed to warn Pio about dangerous conditions of which they knew or should have known, and failed to act reasonably under the facts and circumstances. The defendants filed separate motions for summary judgment, arguing that they did not have a duty to warn of the open and obvious condition in a landscaped area. The trial court agreed and granted separate summary judgments in favor of the three defendants. Pio appeals the three orders in three separate appeals. This appeal involves the summary judgment against Simon.1 1 Pio v. Luke's Landscaping, Inc., 2D21-1574, involves the appeal of the summary judgment entered in favor of Luke's Landscaping, and Pio v. Macy's Florida Stores, LLC, 2D21-4014, involves the appeal of the summary judgment entered in favor of Macy's. This court granted Pio's motion to consolidate the cases only for record purposes and to travel 2 In its order granting summary judgment in favor of Simon, the trial court recognized that while an invitee is owed a duty to be warned of dangerous conditions which are, or should be, known to an owner and which are unknown to an invitee, landscaping features are generally found not to constitute dangerous conditions as a matter of law. The court relied on four cases: TruGreen Landcare, LLC v. LaCapra, 254 So. 3d 628 (Fla. 5th DCA 2018); Wolf v. Sam's East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014); Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204 (Fla. 5th DCA 2012); and Taylor v. Universal City Property Management, 779 So. 2d 621 (Fla. 5th DCA 2001). The trial court distinguished a case relied on by Pio, Grimes v. Family Dollar Stores of Florida, Inc., 194 So. 3d 424, 428 (Fla. 3d DCA 2016), because there was no evidence in this case that there was continuous and obvious use of the landscaped area as a pedestrian shortcut, and the court noted that there was no need for a shortcut path because the landscaped area was surrounded by a parking lot and sidewalk on all sides. This court reviews de novo the granting of summary judgment in favor of Simon. See Guzman v. S. Fid. Ins. Co., 332 So. 3d 67, 70 (Fla. 2d DCA 2021). Under the new summary judgment standard, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). "Courts must be particularly restrained in granting summary judgment in negligence cases and summary judgment should not be granted 'unless the facts are so crystallized that nothing remains but together for review by the same panel of judges. Separate briefs were ordered in all three cases, although the separate briefs filed are essentially identical. 3 questions of law.' " Grimes, 194 So. 3d at 428 (quoting Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)). "While issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, they become questions of law if the facts point to but one possible conclusion." Dampier, 82 So. 3d at 206 (first citing Olson v. Crowell Plumbing & Heating Co., 48 So. 3d 139, 143 (Fla. 5th DCA 2010); and then citing Cassel v. Price, 396 So. 2d 258, 260 (Fla. 1st DCA 1981)). On appeal, Pio first argues that this court should reverse the summary judgment in favor of Simon because the defense did not establish as undisputed fact that the landscaped area where Pio fell was "not designed for walking." "Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or 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." Dampier, 82 So. 3d at 206 (citing Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005)). If the nature of a hazard is open and obvious, a property owner does not have a duty to warn, but it still has a duty to maintain the property in a reasonably safe condition. Id. Nonetheless, some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition. Other conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. The rule applied in these circumstances is to absolve the landowner of liability unless the landowner should anticipate 4 or foresee harm from the dangerous condition despite such knowledge or obviousness. Landscaping features are generally found not to constitute a dangerous condition as a matter of law. See, e.g., K.G. v. Winter Springs Cmty. Evangelical Congregational Church, 509 So. 2d 384 (Fla. 5th DCA 1987) (holding tree with surrounding brick border on which child struck his knee while playing football was not a dangerous condition or concealed peril; therefore, church had no duty to warn or take other precautionary measures). Moreover, a number of cases have held that a landowner has no liability for falls which occur when invitees walk on surfaces not designed for walking, such as planting beds. See City of Melbourne v. Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003); Taylor v. Universal City Prop. Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001); Prager v. Marks Bros., 483 So. 2d 881 (Fla. 3d DCA 1986). Id. at 206 (citations omitted). Of the cases relied upon by the trial court, this case is most similar to Wolf, 132 So. 3d 305. Wolf went to Sam's Club for the purpose of making a purchase within the store. He parked his car in the Sam's Club parking lot. The parking lot had landscaping areas with dirt, trees, grass, and mulch. The landscaping areas were a few feet wide, were not curbed, and had concrete walkways that allowed persons to cross from one side of the landscaping area to the other without the need to step into the landscaping area itself. There were no signs directing persons to use the concrete walkways. Wolf exited his vehicle and attempted to traverse a landscaping area located between his parking spot and the Sam's Club entrance. In a deposition, Wolf testified that he was aware there were concrete walkways located throughout the landscaping areas, but nevertheless chose to enter and cross the landscaping area because it was a shorter distance from his car to the store entrance. When crossing the landscaping area, Wolf's foot caught on a tree root and Wolf fell on a concrete parking stop. Wolf stated he was aware there were trees in the landscaping areas, but that he had "not consciously" noted the tree roots before the accident. 5 Wolf was injured by the fall, and he was taken by ambulance to a hospital. Id. at 306. Wolf sued Sam's Club, but the trial court granted summary judgment in favor of Sam's Club. Id. at 307. On appeal, the Fourth District rejected Wolf's argument that the "tree roots were not easily visible," concluding that anyone who walks into a landscaping area is held to know that the area "presents 'a hazard to walking,' particularly when concrete traverses have been specifically constructed to prevent this type of accident." Id. at 308 (quoting Taylor, 779 So. 2d at 622). The court held "that the tree roots in the landscaping areas were 'so obvious and not inherently dangerous' as to constitute a non-dangerous condition as a matter of law." Id. (citing Dampier, 82 So. 3d at 206). The court stated that its conclusion was "reinforced by the fact that Wolf could have easily and safely crossed the landscaping area using a concrete walkway located only a few feet away from where he fell. Wolf testified in his deposition that he knew the walkway existed but chose not to use it." Id. Wolf further argued that a reversal was necessary because "two other persons had tripped on the tree roots during the three years before" his accident, but the court also rejected that argument, finding that Wolf "fell because he was knowingly cutting through a landscaping area rather than using the concrete walkways designed for that purpose." Id. at 308- 09. The court concluded that "[u]nder the facts of this case, . . . the prior falls did not create a duty on the part of Sam's Club to make the landscaping areas safe for pedestrian traffic." Id. at 309. As in Wolf, the trial court properly entered summary judgment in favor of Simon because as a matter of law, the landscaped area was not a dangerous condition. The undisputed evidence shows that the 6 depression in the grass which allegedly caused Pio's injury was in a landscaped area, set apart from the parking lot by a raised curb. Pio admitted in her deposition that she had stepped up onto a curb to reach the landscaped area and that the area was landscaped and contained trees, grass, and shrubs. She also admitted that she knew of an alternate route into the mall that would not require her to walk onto the landscaped area. Pio argues that it was foreseeable that people would step into the grass area, based on the security guard's deposition testimony that people on occasion had stepped through the grass to reach the sidewalk to access the mall. "If the parties responsible for maintaining . . . [a] landscaped feature[] allow[] th[e] particular landscaped area to become a regularly used footpath in the [area] they controlled, they then may have a duty to anticipate the harm, whether or not the . . . hazard within that location was open and obvious." Grimes, 194 So. 3d at 428. But the question in Grimes was whether the landowner had "allowed the condition to exist for enough time to place [the landowner] on constructive notice of its existence" so as to preclude summary judgment as "[t]here [was] evidence in [the] record to suggest the landscaped area . . . had become a well-trampled dirt footpath used by business invitees." Id. at 428. The court concluded that "[t]he 'landscaped' area . . . allegedly had been in continuous and obvious use as a pedestrian shortcut for some time, raising the issue of notice to the defendants with regard to their duty to invitees." Id. at 427 (distinguishing Dampier, Taylor, and Wolf because the landscaped features in those cases had not been "used for foot traffic"). Here, there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed has been in continuous and obvious use as a pedestrian shortcut such that Simon 7 was put on constructive notice of the condition. There was only evidence that "a few people" had walked from their vehicle across the grass to the sidewalk "on occasion." This was not sufficient to create a duty. See Wolf, 132 So. 3d at 308–09 (rejecting Wolf's argument that two prior falls on the tree roots created a duty, finding that Wolf "fell because he was knowingly cutting through a landscaping area rather than using the concrete walkways designed for that purpose"). Last, Pio argues that the trial court erred in granting summary judgment because Simon is vicariously liable for the condition that Luke's created. Pio has not shown a separate entitlement to relief on this issue. The trial court found in a separate order that Luke's was not liable as a matter of law based on the same reasoning applicable to Simon; thus, Simon cannot be vicariously liable where Luke is not liable. See, e.g., Dabasse v. Reyes, 963 So. 2d 288, 291 (Fla. 2d DCA 2007) (recognizing that vicarious liability "is derivative of the liability of the active tortfeasor"). Pio relies on Mazyck v. Caribbean Lawn, Inc., 587 So. 2d 573 (Fla. 3d DCA 1991), which addresses vicarious liability and holds that an owner or a landscaping company may be liable for failing to act when the dangerous condition (a spear-like protrusion that resulted in the death of child) was called to its attention. But here, there was no evidence that a dangerous condition similar to that in Mazyck was called to Luke's or Simon's attention. Based on the reasoning above, we affirm the final summary judgment entered in favor of Simon. KELLY and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 8