Miami, Florida - Personal Injury lawyer represented Appellant with appealing a grant of summary judgment in a claim for negligence for defendant homeowner.

The underlying injury occurred while Pozanco was visiting a friend, Tito

Rodriguez, who had been house-sitting for the defendant. Late one evening,

Rodriguez invited Pozanco and some others over to the defendant's house

for a party. After several hours of drinking alcohol on the pool deck,

Rodriguez encouraged Pozanco to use the defendant's pool. While Pozanco

initially hesitated, he eventually agreed to go in the pool after Rodriguez

provided him with a swimsuit. After changing, Pozanco proceeded to dive

head-first into what he assumed was the deep end of the pool.

Unfortunately, his assumption was incorrect; the pool was only three feet

3

deep at both ends, and five feet in the middle. Pozanco ultimately hit his

head on the bottom of the pool and sustained permanent injuries.

Pozanco sued the landowner for negligence and vicarious liability,

alleging that the unconventional design of the pool, in combination with

attendant circumstances described below, created a duty to warn invitees

that the pool was shallow at the ends and that diving was unsafe. The

complaint asserted several supporting facts contributing to the alleged

negligence. Specifically, Pozanco claimed that: (1) the design of the pool

was unreasonably dangerous because swimming pools typically have a

shallow end on one side and a deep end on the other; (2) Rodriguez

unreasonably enticed him to swim by inviting him to the party and providing

him with alcohol and a swimsuit; (3) Pozanco was unable to properly gauge

the depth of the pool due to poor lighting on the pool deck at night and a lack

of warning signs; and (4) his view of one of the two set of steps on either end

of the pool was obstructed by the placement of four large planters at the

corners of the pool, leading him to assume from prior experience that

because he could see only one set of steps, and because pool steps are

typically located in the shallow end, the opposite side must be the deep end.

In response, the defendant argued that homeowners typically owe no duty

to protect invitees against dangers inherent in the use of a swimming pool

4

and that the pool constituted an open and obvious danger that Pozanco

could have easily discovered before diving. The trial court agreed and

granted summary judgment. This appeal followed.

STANDARD OF REVIEW

Under the standard applicable to this case,

1 we review a grant of

summary judgment de novo to determine whether there are any genuine

issues of material fact and whether the moving party is entitled to prevail as

a matter of law. See, e.g., Volusia County v. Aberdeen at Ormond Beach,

L.P., 760 So. 2d 126, 130 (Fla. 2000). We are required to consider the

evidence in the light most favorable to the non-moving party, and if the

"slightest doubt” exists as to the propriety of the judgment, the summary

judgment must be reversed. See, e.g., Gidwani v. Roberts, 248 So. 3d 203,

206 (Fla. 3d DCA 2018). Further, "[s]ummary judgments should be

cautiously granted in negligence and malpractice suits.” Moore v. Morris,

475 So. 2d 666, 668 (Fla. 1985).

1 The standard of review for summary judgments in Florida has since

changed to mirror the federal standard articulated in Celotex Corp. v. Catrett,

477 U.S. 317 (1986), with respect to judgments rendered after May 1, 2021.

See In re Amends. to Fla. Rule of Civ. Pro. 1.510, 317 So.3d 72 (Fla. 2021);

In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 195 (Fla.

2020). However, as the judgment at issue here was rendered before May 1,

2021, we instead apply the then-existing prior standard.

5

To be entitled to summary judgment, the moving party "must show

conclusively the absence of any genuine issue of material fact.” Id. The

movant must "establish irrefutably that the nonmoving party cannot prevail

were a trial to be held.”2 Gidwani, 248 So. 3d at 207 (quoting Redland Ins.

Co. v. Cem Site Constructors, Inc., 86 So. 3d 1259, 1261 (Fla. 2d DCA

2012)). An issue of fact is "genuine” for summary judgment purposes if it

could allow a jury to return a verdict in favor of the non-moving party, and an

issue of fact is "material” if it could have any bearing on the outcome of the

case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). "If the evidence raises any issue of material fact, if it is

conflicting, if it will permit different reasonable inferences, or if it tends to

prove the issues, it should be submitted to the jury as a question of fact to

be determined by it.” Moore, 475 So. 2d at 668.

2 As the previous summary judgment standard (applicable at the time of the

hearing) required a movant to "prove a negative,” it resulted in a higher

burden on the movant than required under the now-adopted federal

standard. See In re Amends., 317 So. 3d at 75 ("Second, those applying

new rule 1.510 must recognize that a moving party that does not bear the

burden of persuasion at trial can obtain summary judgment without

disproving the nonmovant's case.”); In re Amends., 309 So. 3d at 193 ("By

contrast, the Supreme Court has held that there is 'no express or implied

requirement in Rule 56 that the moving party support its motion with affidavits

or other similar materials negating the opponent's claim.' Celotex, 477 U.S.

at 323, 106 S.Ct. 2548.”). By this opinion, we examine the existing record

and apply the former summary judgment standard.

6

ANALYSIS

"To maintain an action for negligence, a plaintiff must establish that the

defendant owed a duty, that the defendant breached that duty, and that this

breach caused the plaintiff damages.” Fla. Dep't of Corr. v. Abril, 969 So. 2d

201, 204 (Fla. 2007). Such duty can arise from legislative enactments,

common law, the specific circumstances of the case, or "whenever a human

endeavor creates a generalized and foreseeable risk of harming others.”

McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992). The

cornerstone of the duty element is foreseeability; "each defendant who

creates a risk is required to exercise prudent foresight whenever others may

be injured as a result.” Id. ("This requirement of reasonable, general

foresight is the core of the duty element.”).

With respect to the liability of landowners for injuries caused to invitees

by dangerous conditions on the property, the courts of this state have long

recognized a two-pronged standard of care:

Generally, a property owner or occupier 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.

Grimes v. Family Dollar Stores of Fla., 194 So. 3d 424, 427 (Fla. 3d DCA

2016). These two duties are distinct from one another, and compliance with

7

one does not necessarily mean that the landowner has complied with the

other. Rocamonde v. Marshalls of Ma, Inc., 56 So. 3d 863, 865 (Fla. 3d DCA

2011).

However, "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.” Dampier v. Morgan

Tire & Auto., LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012). Pursuant to this

"open and obvious” doctrine, "[a] possessor of land is not liable to his invitees

for physical harm caused to them by any activity or condition on the land

whose danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness.” Ashcroft v.

Calder Race Course, Inc., 492 So. 2d 1309, 1312 (Fla. 1986) (emphasis and

citation omitted); see also Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d

1129, 1133 (Fla. 1st DCA 2017) (describing the "two types of obvious

conditions that will not constitute a breach of a duty,” including: (1) where the

condition is obvious and not inherently dangerous, and (2) where the

condition may be dangerous, but is "so open and obvious that an invitee may

reasonably be expected to discover them to protect himself”). "The rule

applied in these circumstances is to absolve the landowner of liability unless

the landowner should anticipate or foresee harm from the dangerous

8

condition despite such knowledge or obviousness.” Dampier 82 So. 3d at

206; see also Brookie, 213 So. 3d at 1133 (noting that "for analytical

purposes,” the two prongs of landowner duty "are not mutually exclusive, as

the open and obvious nature of a condition may preclude a finding of a

breach of either duty, as a matter of law”).

However, even if a dangerous condition is open and obvious,

landowners may still be found to have a duty of care where some uncommon

design or aspect of the condition creates a "hidden danger,” a "trap,” or an

"optical illusion” not reasonably discoverable by an ordinarily prudent invitee.

See Echevarria v. Lennar Homes, LLC, 306 So. 3d 327, 330 (Fla. 3d DCA

2020) (reversing grant of summary judgment against plaintiff injured by

tripping on transition between porch and walkway that blended together to

create "optical illusion,” because genuine issue of material fact existed as to

whether porch design complied with building codes and whether such failure

"concealed the step's presence” from the perspective of the plaintiff);

Bejarano v. City of Coral Gables, 300 So. 3d 712, 714 (Fla. 3d DCA 2019)

(reversing grant of summary judgment against plaintiff alleging that negligent

placement of palm trees at intersection caused traffic accident by obstructing

plaintiff's view). In such cases, if we are unable to conclude as a matter of

law that the open and obvious doctrine precludes recovery, factual questions

9

of the dangerousness and foreseeability of the condition remain for the finder

of fact. See Lotto v. Point E. Two Condo. Corp., Inc., 702 So. 2d 1361, 1362

(Fla. 3d DCA 1997) (reversing summary judgment against plaintiff injured by

tripping on cracked and uneven sidewalk at condominium complex;

unresolved factual issue existed as to whether condominium association

should have foreseen that residents would use the sidewalk and be injured

"notwithstanding that the condition was obvious”); see also Krol v. City of

Orlando, 778 So. 2d 490, 494 (Fla. 5th DCA 2001) (reversing summary

judgment on obvious danger grounds against plaintiff injured by tripping on

open storm drain that was partially obscured by sidewalk transition, as

factual question existed as to plaintiff's ability to see drain beforehand);

Collias in re Collias v. Gateway Acad. of Walton Cnty., Inc., 313 So. 3d 163,

168 (Fla. 1st DCA 2021) (reversing grant of summary judgment as to

negligence claim based on student's injury caused by running into table

during track event, as genuine issues of fact existed as to foreseeability of

danger and reasonableness of school's placement of table and choice of

event location).

Here, the defendant primarily relies on a line of cases in which this

court held that the risks inherent in private bodies of water are typically

obvious to a reasonable person, such that the landowner will not be liable

10

for injuries sustained from the use of those bodies of water unless they

present some unusual condition amounting to a hidden danger. See

Tremblay v. S. Fla. Water Mgmt. Dist., 560 So. 2d 1219, 1220 (Fla. 3d DCA

1990) ("[A] property owner generally cannot be held liable for dangerous

conditions which exist in natural or artificial bodies of water unless they are

so constructed as to constitute a trap or unless there is some unusual nature

not generally existent in similar bodies of water.” (quotation omitted)); see

also Saga Bay Prop. Owners Ass'n v. Askew, 513 So. 2d 691, 693 (Fla. 3d

DCA 1987) (same); Navarro v. Country Village Homeowners' Ass'n, 654 So.

2d 167, 168 (Fla. 3d DCA 1995) ("Under Florida law, the general rule is that

the owner of an artificial body of water is not guilty of actionable negligence

for drownings therein unless it is so constructed as to constitute a trap or

unless there is some unusual element of danger lurking about it not existent

in ponds generally.” (quotation omitted)). Accordingly, the trial court

concluded that because the danger was open and obvious, and because the

defendant presented evidence that the design of the pool complied with the

applicable building codes, the defendant could not owe Pozanco any duty of

care with respect to the pool.

We agree that a residential pool typically presents certain obvious

dangers easily discoverable by invitees. However, under the circumstances

11

present here, we find that the defendant hasn't conclusively rebutted

Pozanco's theory that this particular pool was a hidden danger or trap giving

rise to a duty of care on the part of the landowner. Here, Pozanco has

asserted several attendant circumstances that allegedly prevented him from

properly discerning the pool depth before diving in, including the

unconventional design of the pool, the lack of lighting and signage, and the

placement of the planters leading him to believe that the pool had a

conventional deep end sufficient for diving. These facts distinguish this

situation from comparable cases involving diving accidents in bodies of water

with readily discernable depths. Cf. Clark v. Lumbermans Mut. Auto. Ins.

Co., 465 So. 2d 552, 556 (Fla. 1st DCA 1985) (affirming summary judgment

against plaintiff injured by diving into shallow river where "the evidence below

is susceptible to no conclusion other than that [the plaintiff] had sufficient

intelligence, experience, and knowledge to—and in fact did—both detect and

appreciate the physical characteristics of the swimming place in question

and the potential danger involved in attempting his shallow water dive”);

Ryan v. Unity, Inc., 55 So. 2d 117, 118 (Fla. 1951) (affirming summary

judgment against plaintiff injured by diving into partially-drained pool at night,

as pool contained only two feet of water and "[e]ven a casual observation by

12

appellant would have disclosed that the pool did not contain sufficient water

for swimming or diving”).

Because a genuine issue of material fact exists as to whether the

conditions and circumstances surrounding the pool could amount to the sort

of hidden danger that would render Pozanco's injury foreseeable to the

landowner or create a duty to warn under the circumstances present here,

the trial court should have allowed the issue to go before a jury

We therefore reverse the grant of summary judgment in favor of the defendant and remand for further proceedings.



Reversed and remanded