City of Naples v. Chops City Grill, Inc.

331 So.3d 291

CITY OF NAPLES, Florida and Jill Gass, Appellants,

v.CHOPS CITY GRILL, INC., Appellee.

No. 2D19-2836

District Court of Appeal of Florida, Second District.

December 29, 2021

Christopher D. Donovan, James D. Fox and Sara F. Hall of Roetzel & Andress, LPA, Naples, for Appellant City of Naples.

Brian J. Lee of Morgan & Morgan, Jacksonville, for Appellant Jill Gass.

Sharon C. Degnan of Kubicki Draper, Orlando, for Appellee.

BLACK and SLEET, JJ., Concur.

SILBERMAN, Judge

The City of Naples and Jill Gass challenge a partial final judgment that enters summary judgment in favor of Chops City Grill, Inc. (Chops), in Ms. Gass's negligence action against the City and Chops. Because Chops did not carry its burden to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, we reverse and remand for further proceedings. Based on our determination, we need not reach the second issue that the City raised. Additionally, we reject without discussion Chops' argument that we should dismiss this appeal.

In October 2015, Ms. Gass and her then boyfriend, George Quinn, were on their way to meet another couple at a restaurant in Naples. Mr. Quinn was driving and dropped Ms. Gass off in front of a different restaurant, Chops. Mr. Quinn then left to park the car elsewhere. After Ms. Gass exited the car, she stepped off the street and onto the sidewalk. Within a few steps she fell to the ground and was injured. She was unable to pinpoint exactly where she fell or what caused her to fall, but it was in an area with pavers in front of Chops. She acknowledged that she was walking towards the restaurants in that area "to see which one [she] was supposed to go into."

Ms. Gass initially filed suit against the City and later added Chops as a defendant. She alleged that the City was liable as it "was the owner and in possession and/or had custody and control of that certain walkway" on which she fell. She asserted that she was a business invitee/guest of the City of Naples and that the City "negligently maintained the premises by allowing a defective and/or dangerous and uneven walkway to exist." She claimed that the walkway was unsafe, that the City knew of the "negligent condition" of the sidewalk, and that the City's negligence was the proximate cause of her injury.

Ms. Gass made similar allegations against Chops. She added that Chops "negligently and/or incorrectly installed the walkway pavers, making them unsafe, defective and dangerous." She asserted that Chops failed to reasonably maintain the pavers and/or created a tripping hazard. Finally, she asserted that Chops knew of the danger and that its negligence was the proximate cause of her injury.

In their answers, the City and Chops denied liability and raised several affirmative defenses. Eventually, Chops moved for entry of a summary judgment against Ms. Gass. Chops asserted that it owed no duty to Ms. Gass, that Ms. Gass fell on the City's property, and that Chops "had no control, ownership, and/or role in the construction or maintenance, of the" sidewalk. Chops attached to its motion an unauthenticated copy of its lease for the premises.

On June 26, 2019, the trial court conducted a hearing on the motion for summary judgment. Although no court reporter was present, the parties submitted to the trial court and the court approved a "Stipulated Order Settling and Approving the Statement of the Evidence/Proceedings." The order reflects that Chops was not the restaurant to which Ms. Gass and Mr. Quinn were headed: Ms. Gass "fell as she was walking down the sidewalk, intending to patronize another business." The order also summarizes the parties' respective arguments and sets forth the trial court's oral ruling at the conclusion of the hearing. As stated in the order: "The Court held that Plaintiff had alleged that she fell on the pavers. In doing so, the Court cited to Plaintiff's deposition. The Court also held that based on the Building Lease Agreement, Chops City was not responsible for the pavers."

On appeal, the City and Ms. Gass contend that Chops failed to carry its burden to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Specifically, they assert that Chops failed to show that it had no duty to Ms. Gass concerning the paver area where Ms. Gass tripped and fell. In response, Chops argues that it has no duty to maintain the public sidewalk in front of its restaurant in a safe condition and that it is the City that owes this legal duty to Ms. Gass.

Appellate review of a summary judgment is de novo. Lee Cnty. Dep't of Transp. v. Island Water Ass'n , 218 So. 3d 974, 976 (Fla. 2d DCA 2017). Summary judgment is proper only when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Id. (citing Cook v. Bay Area Renaissance Festival of Largo, Inc. , 164 So. 3d 120, 122 (Fla. 2d DCA 2015) ). The possibility of a genuine issue of material fact renders a summary judgment inappropriate. Id. The movant "carries the initial burden of establishing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law, and" the party opposing summary judgment has no duty "to demonstrate the existence of such issue until after the movant has satisfied his initial burden." Jones Constr. Co. of Cent. Fla. v. Fla. Workers' Comp. JUA, Inc. , 793 So. 2d 978, 979 (Fla. 2d DCA 2001).

A movant has an "even more onerous" burden in a negligence action involving a slip and fall. Tallent v. Pilot Travel Ctrs., LLC , 137 So. 3d 616, 617 (Fla. 2d DCA 2014) (quoting Hervey v. Alfonso , 650 So. 2d 644, 646 (Fla. 2d DCA 1995) ). To be entitled to summary judgment, a defendant must "establish unequivocally the absence of negligence, or that the plaintiff's negligence was the sole proximate cause of the injury." Id. (quoting Hervey , 650 So. 2d at 646 ).

The issue in a premises liability case of whether a defendant has a duty of care is not dependent upon ownership of the premises; rather, "the appropriate inquiry is whether the party has the ability to exercise control over the premises." Metsker v. Carefree/Scott Fetzer Co. , 90 So. 3d 973, 977 (Fla. 2d DCA 2012). "A party who has control over premises has a duty of care to keep the premises in repair." Lee Cnty. , 218 So. 3d at 977 (first citing Cook , 164 So. 3d at 122 ; and then citing Metsker , 90 So. 3d at 977 ). Two parties may have a duty of care when both...