Opinion
Case No. 6:21-cv-2071-ACC-LHP
2022-10-11
Dorothy TOWNSEND, Plaintiff, v. MARRIOTT HOTEL SERVICES, INC., Defendant.
Matthew David Levy, Kanner and Pintaluga, Boca Raton, FL, for Plaintiff. Tia Jordan Jones, La Cava & Jacobson, PA, Tampa, FL, for Defendant.
Matthew David Levy, Kanner and Pintaluga, Boca Raton, FL, for Plaintiff. Tia Jordan Jones, La Cava & Jacobson, PA, Tampa, FL, for Defendant.
ORDER
ANNE C. CONWAY, United States District Judge
This cause comes before the Court on Defendant Marriott Hotel Services, Inc.'s Motion for Summary Judgment (Doc. 32), and Plaintiff Dorothy Townsend's Objection and Motion to Strike Defendant's Exhibit Number Six—the Report of Marriott's expert, Roy Wadding—in Support of its Motion for Summary Judgment. (Doc. 36). Both parties responded (Doc. 39; Doc. 38), and Marriott replied in support of summary judgment. (Doc. 41). Thus, the Motions are ripe for review. For the reasons below, Marriott's Motion will be granted, and Townsend's Motion will be denied.
BACKGROUND
Marriott owns and operates the Gaylord Palms Resort and Convention Center. (Doc. 1-2 at 2). The convention center sits in a large indoor atrium that houses hotels, meeting rooms, and other facilities. (Doc. 32-6 at 7). The facilities are connected by a series of paved walkways, which are bordered by landscaping—trees, plants, flowers, and foliage—that serve an aesthetic purpose. (Id.; Doc. 34 at 30-33; Doc. 42-1 at 5-6).
A kiosk with a map of the resort sits to the side of a brick walkway. (Doc. 32-6 at 9). The locations on the map are labeled with small font. (Doc. 33 at 66; Doc. 35 at 88; Doc. 40-3 at 14-15). The kiosk's base is set back eleven inches from the walkway's edge and positioned at the front corner of a large rock bed covered in foliage. (Doc. 34 at 27; Doc. 35 at 46; Doc. 32-6 at 10 Doc. 42-1 at 6). A strip of rocks from the rock bed fills the eleven-inch gap between the kiosk and the walkway:
Image materials not available for display. (Doc. 32-6 at 9).
Dorothy Townsend attended a tax seminar at the convention center with her then-husband. (Doc. 33 at 35). During a break in the seminar, Townsend approached the kiosk to read the map. (Doc. 33 at 38-39). As she read the map, Townsend intentionally stepped into the eleven-inch strip of rocks before the kiosk. (Id. at 39, 48, 52-53). She fell, suffering injuries. Townsend attributes her fall to two conditions: (1) a one-inch drop in elevation from the walkway to the rock bed, and (2) the rock bed's unstable, slippery surface. (Doc. 35 at 16, 38, 52, 58-59; Doc. 39 at 11). According to Townsend, these conditions—for which there was no warning—rendered the premises unreasonably dangerous. (Doc. 39 at 11, 16). Therefore, she sued Marriott for failure to warn and failure to maintain the premises in a reasonably safe condition. (Doc. 1-1).
Marriott seeks summary judgment. (Doc. 32). Marriott argues that it had no duty to maintain the area or warn of hidden conditions because the rock bed was a "landscaping feature," and as a matter of law, landscaping features are not dangerous. (Id. at 14-16). Townsend disagrees—she argues that Marriott's duty ran to the rock bed because it differs from the landscape features recognized by Florida courts. (Doc. 39 at 16).
LEGAL STANDARD
A court should grant summary judgment "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." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996) (quoting Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1396, modified on other grounds, 30 F.3d 1347 (11th Cir. 1994)). When the non-movant bears the burden of proof at trial, the movant may carry its initial burden by demonstrating the absence of evidence to prove a fact necessary to the non-movant's case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993) (citation omitted). Alternatively, the movant may support its motion with affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Id.
Upon such a showing, the burden shifts to the non-movant, who must demonstrate an issue of material fact to avoid summary judgment. Id. at 1116. Where the movant brought forth affirmative evidence, the non-movant must respond with evidence sufficient to withstand a directed verdict at trial. Id. Where the movant demonstrated an absence of evidence, the non-movant may show that evidence in the record was overlooked or ignored, or come forward with additional evidence sufficient to withstand a directed verdict. Id.
Regardless of the method, there must be more than a "mere scintilla of evidence" supporting the non-movant's position, such that "the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). If the non-movant fails to identify or produce sufficient evidence, Rule 56(c) mandates the entry of summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
DISCUSSION
In Florida, a landowner owes business invitees two duties: (1) to warn of hidden dangers and (2) to maintain the property in a reasonably safe condition. Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA 2011). The open and obvious nature of a condition discharges the landowner's duty to warn; however, it does not discharge the landowner's duty to maintain the premises. Pittman v. Volusia Cnty., 380 So. 2d 1192, 1193-94 (Fla. 5th DCA 1980) (citing Vermont Mut. Ins. v. Conway, 358 So. 2d 123 (Fla 1st DCA 1978)). Instead, the jury must consider the obviousness of the condition when apportioning liability under principles of comparative negligence. Id.
Marriott removed this case on the basis of diversity under 28 U.S.C. § 1332. (Doc. 1). Federal courts sitting in diversity apply the substantive law of the forum state—here, Florida. Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132-33 (11th Cir. 2010).
Marriott acknowledges that Townsend was an invitee. (Doc. 32 at 8).
Nonetheless, some conditions are so obvious and innocuous that they discharge the landowner's duty to maintain the premises. Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012). For example, uneven floor levels and mere drops in elevation are so obvious and not dangerous that they require neither a warning nor repair. Schoen v. Gilbert, 436 So. 2d 75, 76 (Fla. 1983); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1063 (Fla. 5th DCA 1992). A landowner is not liable for those conditions because, as a matter of law, they are not dangerous.
Landscape features are not dangerous conditions as a matter of law. Dampier, 82 So. 3d at 206; Taylor v. Universal City Prop. Mgmt., 779 So. 2d 621, 622 (Fla. 5th DCA 2001). In Taylor, the plaintiff fell while stepping into a row of planters filled with plants, dirt, and a tree. Id. Florida's Fifth District held that the landowner had no duty to warn of hidden hazards in the planter because the planter itself was a glaringly open and obvious obstacle any pedestrian would avoid. Id. The plaintiff argued that the specific hazards she encountered—an abrupt elevation change and slippery surface—were not observable, but the court rejected her argument. Id. "The precise nature of the hazard need not be observable," the court explained, because any pedestrian stepping into a landscaping area should expect elevation changes and hazardous surfaces. Id. Having ample notice of the open and obvious hazard, the court affirmed summary judgment for the landowner. Id.
Similarly, in Dampier, the court held that landowners are not liable for pedestrian injuries that occur in areas not designed for walking, such as planting beds. Dampier, 82 So. 3d at 206, 208. There, a man tripped while walking through a raised planting bed sparsely filled with bushes and mulch. Id. at 205-06. The Fifth District acknowledged that a landowner's duty to maintain the property is not discharged just because a hazard is open and obvious. Id. at 206. Nonetheless, the court wrote, "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." Id. Because landscape features are not dangerous when used for their intended purpose—and not for walking—the court held that landowners have no duty to render them safe for pedestrians or warn of hidden conditions. Id. at 208; see also City of Melbourne v. Dunn, 841 So. 2d 504, 505 (Fla. 5th DCA 2003); Wolf v. Sam's Club E., Inc., 132 So. 3d 305, 306 (Fla. 4th DCA 2014); TruGreen LandCare, LLC v. LaCapra, 254 So. 3d 628, 633 (Fla. 5th DCA 2018).
In this case, Marriott argues that the rock bed constitutes a "landscape feature" because it was not designed for pedestrian travel, and Marriott had no reason to expect that pedestrians would enter the area. (Doc. 32 at 15-16; Doc. 41 at 5). Therefore, Marriott argues that it had no duty to maintain the rock bed or warn of conditions within the bed. (Doc. 32 at 15-16; Doc. 41 at 5). The Court agrees.
A "landscape feature" is an area any reasonable person would recognize as hazardous because it is not designed for pedestrians. See Wolf, 132 So. 3d at 306 ("We conclude that anyone [who] walks into a landscaping area containing trees, grass, and mulch is held to know that the landscaping area presents a hazard to walking."); Taylor, 779 So. 2d at 622 ("Anyone who walks into a planter containing a Washington palm, greenery and/or flowers, and dirt is held to know that this is a hazard to walking."); Dunn, 841 So. 2d at 505 ("The 21x7x1 foot planter was a glaringly open and obvious obstacle for anyone walking out of the park, and Dunn knew, or should have known that . . . . Furthermore, the city had no duty to make the planter safe for walking, a function for which it was not designed.") (cleaned up); Dampier, 82 So. 3d at 208 ("[T]here was no duty to warn Dampier of the danger of walking in the planting bed, because the planting bed and stump did not constitute a dangerous condition when used as a planting bed and not for walking.").
Reasonable pedestrians should recognize that unpaved areas covered in foliage are not designed for walking. See Taylor, 779 So. 2d at 622 (finding no duty to warn of conditions in a row of tree planters covered in foliage and flowers); Dampier, 82 So. 3d at 206-07 (finding no duty over a planting bed sparsely filled with bushes planted in mulch); Dunn, 841 So. 2d at 504-05 (finding no duty over a raised planter filled with dirt, mulch and plants).
Even without foliage, reasonable people should generally recognize that unpaved, grassy public areas are not meant for pedestrians. See Wallace v. Progreen Servs., LLC, 291 So. 3d 143, 143 (Fla. 4th DCA 2020) (affirming summary judgment for the landowner where the plaintiff fell while walking across a sodded front lawn); Wolf, 132 So. 3d at 306 (finding no duty over a strip of land with dirt, trees, grass, and mulch); TruGreen, 254 So. 3d at 630 n.1, 633 (reversing the denial of a directed verdict for the landowner when the plaintiff walked across a small planter with grassy area with artificial turf).
This is particularly true when the unpaved area is near a paved pathway. See Wolf, 132 So. 3d at 308 ("Our conclusion is 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."); TruGreen, 254 So. 3d at 633 (stating that no pedestrian would think that the artificial turf was a shortcut because it was surrounded by paved sidewalk); Wummer v. Town of Lake Park, 305 So. 3d 555, 555 (Fla. 4th DCA 2020) (affirming summary judgment for the landowner when the plaintiff fell while walking in the grassy area of a public park, rather than the nearby sidewalk); Dunn, 841 So. 2d at 504-05 (noting that a paved pathway existed directly beside the planter on which the plaintiff fell).
However, a landowner's duty of care may extend to unpaved grassy areas if the owner allows them to become well-trodden pedestrian footpaths. Grimes v. Fam. Dollar Stores of Fla., Inc., 194 So. 3d 424, 428 (Fla. 3d DCA 2016). In Grimes, the plaintiff fell while walking across an unpaved area with dirt and trees. Id. at 426. Paved pedestrian sidewalks existed nearby. Id. The trial court granted summary judgment for the landowner, but the Third District reversed. The court distinguished the area from prior cases based on evidence that pedestrians continuously and obviously used the area as a shortcut. Id. at 427. Indeed, the area's grass was so trampled by foot traffic that only dirt remained, and the landowner placed a garbage can next to the foot path. Id. at 427 n.1. This evidence created a fact issue as to whether the landowner allowed the area to become a footpath, and whether it had a duty to anticipate the harm caused by the hidden condition. Id. at 427-28.
In this case, no reasonable person would believe that the strip of rocks in front of the kiosk was designed for pedestrians. The strip of rocks is part of a larger rock bed covered in thick foliage. (Doc. 35 at 46; Doc. 42-1 at 5). As Townsend's expert concedes, the thick foliage deters and prevents pedestrians from entering the bed. (Doc. 35 at 84-85). Townsend's expert points out that the eleven-inch strip of rocks in front of the kiosk lacked foliage—presumably to avoid blocking the map. (Doc. 35 at 84, 91). But like Dampier—where a planting bed sparsely filled with bushes and mulch was clearly not designed for walking—a rock bed blanketed with vegetation is clearly not designed for pedestrians. See Dampier, 82 So. 3d at 208. Given this obvious signal, Townsend should have known to stay out. See Taylor, 779 So. 2d at 622 (stating that changes in surface texture affecting footing should be expected when entering an unpaved area with foliage); Wolf, 132 So. 3d at 308 (stating that anyone who walks through trees, grass, and mulch is held to know that the area is hazardous).
If the foliage was not enough, the rock bed also abuts a paved walkway that offers pedestrians a convenient place to view the map kiosk. The immediately available walkway makes glaringly obvious that the bed of rocks was not meant for pedestrians. See TruGreen, 254 So. 3d at 633 (stating that no pedestrian would think that the landscape feature was a shortcut because it was surrounded by paved sidewalk); Wummer, 305 So. 3d at 555 (affirming summary judgment for the landowner when the plaintiff fell while walking through a public park's grassy area, rather than the nearby sidewalk); Wolf, 132 So. 3d at 306.
Townsend says that the small rocks in front of the map kiosk looked like "an island" that was part of the walkway. (Doc. 33 at 60). Her testimony is belied by the photographs. The rocks are a different color, texture, and size than the brick pathway. (Doc. 34 at 39; Doc. 32-6 at 12). No reasonable person would believe that the strip of rocks—which is clearly part of a larger landscaped area—was an extension of the walkway.
Despite the paved walkway, Townsend's expert believes Marriott should have anticipated pedestrians stepping into the rocks because they were placed before a map kiosk with small print. (Doc. 35 at 44, 48, 51, 88, 116-17). The Court disagrees. The kiosk's base sits just eleven inches from the edge of the walkway, and the face of the map just fifteen inches away. (Doc. 32-6 at 10; Doc. 42-1 at 6). While some print on the map kiosk may be small, Townsend's expert estimates that someone with "great vision" could read the map from ten feet away. (Doc. 35 at 49). Townsend acknowledges that she has 20/20 vision, and although Townsend suggests that she entered the rocks to read the map, she also states that she was actively reading the map as she made the step. (Doc. 33 at 39, 66). The Court can discern no reason why a pedestrian with adequate vision would enter the rocks to view a map in such close proximity:
Townsend states that if she did not want to read the sign, she would not have stepped into the rocks. (Doc. 33 at 66).
Image materials not available for display. (Id. at 14). Thus, the rock bed's location before the map kiosk does not show that it was designed for pedestrians.
This picture comes from the report of Marriott's expert, Roy Wadding. Townsend moves to strike Marriott's expert report because it was unsworn and not accompanied by any deposition transcript. (Doc. 36). The Court denies Townsend's Motion for three reasons. First, the report constitutes "other materials" under Rule 56(e) capable of being reduced to admissible form through his trial testimony. See Kearney Constr. Co. LLC v. Travelers Cas. & Sur. Co. of Am., No. 8:09-CV-1850-T-30TBM, 2017 WL 2172200, at *2 (M.D. Fla. Apr. 19, 2017) (stating that after the 2010 amendment to Rule 56, unsworn expert reports should not be struck); Colonial Pipeline Co. v. Ceco Pipeline Servs. Co., No. 2:19-CV-1334-AMM, 2022 WL 4283098, at *10 (N.D. Ala. July 13, 2022) ("Because there is no indication that Mr. Melan cannot testify at trial, it appears that his unsworn expert report can be reduced to admissible evidence through his trial testimony."). Second, after Townsend moved to strike, Marriott cured the error by submitting an affidavit where the expert attests to his opinions in the report. See DG&G, Inc. v. FlexSol Packaging Corp. of Pompano Beach, 576 F.3d 820, 826 (8th Cir. 2009) (compiling cases where the district court considered an expert report that was cured by a later affidavit or declaration). Third, even if the Court disregarded Walling's report, its conclusion would remain the same.
Finally, Townsend offers no evidence—unlike the plaintiff Grimes—that pedestrians continually used the rock bed as a walkway. To the contrary, Marriott employees testify to no prior pedestrian falls in the rocks. (Doc. 34 at 19; Doc. 40-3 at 27). Because no reasonable jury could conclude that the bed of rocks was designed for pedestrians, Marriott had no duty to warn or render the area safe for walking.
This conclusion is consistent with a recent case from Florida's Fifth District. See Trugreen, 254 So. 3d at 630. There, the plaintiff tripped while walking across a small planter square with artificial turf, centered around a palm tree. Id. at 630 n.1. The planter square had no foliage; however, it was surrounded by sidewalk. See Plaintiff's Response to Defendant's Motion for Final Summary Judgment, No. 2014-CA-12730, at 4-5, Ex. A-1 (Fla. 9th Cir. Ct. Jan. 1, 2016). The trial court denied the landowner's motion for a directed verdict, and the Fifth District reversed, holding that the planter square was a landscaping area and not dangerous as a matter of law. 254 So. 3d at 632-33.
Like a planter square with artificial turf surrounded by sidewalk, a rock bed that abuts a paved walkway is clearly not meant for pedestrians. In fact, the circumstances here offer an even stronger case for summary judgment than in Trugreen. A bed of rocks is far less suitable for pedestrian travel than artificial turf, and unlike Trugreen—where the planter square lacked foliage—the strip of rocks was part of a larger bed covered in foliage. (Doc. 42-1 at 5). Marriott had no duty to care for the landscaped area.
Townsend disagrees with the Court's conclusion, but her arguments fail. First, Townsend points out that the conditions in the rock bed—an abrupt elevation change and an unstable surface—were not "naturally occurring." (Doc. 39 at 16). But Florida courts have ignored this distinction when analyzing whether an area is a landscaping feature. See Taylor, 779 So. 2d at 622 (stating that the planter square had a metal rim, and the metal rim was the point of contact that caused the plaintiff to lose balance); Dunn, 841 So. 2d at 505 (stating that the plaintiff tripped over separated wooden planks and a dislodged nail); see also Trugreen, 254 So. 3d at 632 ("The fact that the planter square in this case used artificial turf instead of natural grass is also a distinction without a difference.").
Next, Townsend says that unlike previous cases, Marriott never warned her to stay off the area. (Doc. 33 at 49, 65). But the case law does not support her distinction. See Wolf, 132 So. 3d at 306 (stating that "no signs directed people to use the concrete walkways."). More still, the lack of warning is irrelevant because landscape features pose obstacles so obvious that they obviate the duty to warn in the first place. Taylor, 779 So. 2d at 622.
Townsend also tries to reframe the dangerous condition. While admitting she saw the rock bed, Townsend argues that she did not see the hidden conditions that caused her fall. (Doc. 39 at 16). But her argument misses the point—the rock bed itself was a glaringly obvious obstacle; therefore, it matters not whether she could perceive the precise conditions in the bed that caused her fall. Trugreen, 254 So. 3d at 632 ("[The plaintiff's] argument that the depression in the artificial turf upon which he tripped was hidden or that the sprinkler head might not have been visible misses the point of Taylor, which is that the palm tree planter square was not hidden and presented an open and obvious danger in and of itself.").
In short, no reasonable person would have believed that the rock bed was meant for pedestrians. When Townsend knowingly stepped into the rock bed, she did so at her own risk. Marriott is not an insurer, and it cannot be held liable for her injuries.
Based on the foregoing, it is ordered as follows:
1. Defendant Marriott Hotel Services, Inc.'s Motion for Summary Judgment (Doc. 32) is GRANTED.
2. Plaintiff Dorothy Townsend's Objection and Motion to Strike Defendant's Exhibit Number Six in Support of its Motion for Summary Judgment (Doc. 36) is DENIED.
3. The Clerk is DIRECTED to enter judgment that Plaintiff Dorothy Townsend take nothing on her claims, and Defendant Marriott Hotel Services, Inc. is entitled to costs.
4. All pending motions are hereby DENIED AS MOOT.
5. The Clerk is DIRECTED to close the case.
DONE and ORDERED in Chambers, in Orlando, Florida on October 11, 2022.