#### TRINITY EPISCOPAL CHURCH OF VERO BEACH, Florida, a corporation not for profit, Appellant, v. Hazel M. HOGLUND, a widow, Appellee.

No. 1218.

District Court of Appeal of Florida. Fourth District.

March 26, 1969.

Rehearing Denied June 12, 1969.

*782Darrell Fennell and John R. Gould, of Gould, Cooksey & Fennell, Vero Beach, for appellant.

Paul D. Burch, of Sullivan & Burch, Vero Beach, for appellee.

OWEN, Judge.

Mrs. Hoglund recovered a judgment against Trinity Episcopal Church for damages consequent upon personal injuries which she sustained when she fell on the church premises. The defendant appeals, assigning as error the denial of its motions for directed verdict.

Mrs. Hoglund was a member of the church and on the day in question, a week day, had gone to the church to attend a meeting which was to be held in the social hall. Appellant’s building was “U” shaped, the sanctuary comprising one wing, the church offices the other, and the social hall connecting the two. The social hall could be entered either from the court yard between the two wings, or by a hallway from the sanctuary. Mrs. Hoglund first went into the sanctuary for the purpose of showing some new kneeling pads to a friend. The kneeling pads were located on a raised altar, and to get to the raised altar Mrs. Hoglund went up two steps from the floor level of the sanctuary. Leaving the altar for the purpose of going to the social hall, Mrs. Hoglund elected to go through the hallway which led directly from the raised altar to the social hall. The hallway was about six feet long with a door at each end, one of which opened into the sanctuary, the other opening into the social hall. The sanctuary entrance to the hallway being level with the raised altar, the hallway contained two steps going down since the social hall was on the same floor level as the sanctuary. The door on the sanctuary side when closed had a sign on it facing persons approaching the hallway from the sanctuary which read, “Caution — Steps”, but this sign was not visible when the door was opened completely and pushed back against the wall, as it was on this occasion. The door on the social hall end of the hallway was closed and as a consequence, at the time Mrs. Hoglund started into the hallway it was totally dark and she had to feel her way along by holding one hand against the wall. The light was not on, and the light switch was located approximately in the middle of the hallway and could not be reached from either entrance without first stepping into the hall. The steps in question were located near the sanctuary end of the hallway. Even though Mrs. Hoglund had been a member of the church for ten years, she had never walked through the hallway before. She did not see the steps and did not know they were there. She fell down the steps and suffered the injuries for which she was awarded judgment.

It is clear that the status of Mrs. Hog-lund was that of a licensee.1 Appellant’s *783contention is that Mrs. Hoglund, being a mere licensee, was guilty of contributory negligence as a matter of law when she entered a totally dark hallway without being under any compulsion to do so and while in the hallway fell down two steps and was injured; thus, it is contended, defendant was entitled to a directed verdict.

At the outset it should be noted that while plaintiff’s status on the premises as a licensee determines the duty owed her by the defendant, her status as a licensee has no bearing on the question of whether plaintiff is guilty of contributory negligence as a matter of law.

In the case of Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So.2d 116, Mr. Justice Thornal stated the general rule concerning one who enters a totally unfamiliar area in the darkness, in the following language:

> “The applicable principles were reviewed in our opinion in Rubey v. William Morris, Inc., Fla.1953, 66 So.2d 218. We there gave full recognition to the general rule that one who enters a totally unfamiliar area in the darkness is not justified, in the absence of any special stress, in proceeding without first ascertaining whether there are any obstacles to his safe progress. The effect of this general rule is that the darkness, which precludes the effective use of one’s eyesight, is in and of itself sufficient warning to signal caution to one entering into an unfamiliar situation. Conversely, if a person under these circumstances fails to heed the signal, he is guilty of contributory negligence as a matter of law if injury ensues because of his own failure or disregard of reasonable caution for his own safety. Shearman and Redfield on Negligence, Vol. 1, Sec. 131, Rev.Ed. 1941; Norman v. Shulman, 150 Fla. 142, 7 So.2d 98. The basic essentials to the application of this general rule are: (1) darkness that makes ineffectual the normal use of one’s eyes, and (2) an unfamiliar area or situation wherein the injured person has no right to assume that his course is clear, unobstructed or without defect.”

After summarizing a number of prior decisions involving injuries to persons who had proceeded into an unfamiliar area in the darkness, Mr. Justice Thornal then stated, 93 So.2d at page 118:

> “So it is that we detect the distinction illustrated by the cases summarized above. In sum, the rule is that unless a person has a right to expect or assume that the area over which he is passing is to be free of the defect or obstruction that produces his injury, he proceeds at his peril and as a matter of law is guilty of contributory negligence, if he moves into a strange and unfamiliar area in the darkness of night. It remains for us to apply the proper rule to the case before us.”

In attempting to apply the proper rule to the case before us, we conclude that the facts of this case place it squarely within the line of cases which have held the plaintiff guilty of contributory negligence as a matter of law when injured by proceeding into a strange and unfamiliar area in the darkness. It must be kept in mind that Mrs. Hoglund did not encounter an obstruction in the hallway such as existed in the case of Goldin v. Lipkind, Fla.1950, 49 So.2d 539, 27 A.L.R.2d 816, nor was she injured through any defect in the manner in which the steps were constructed or maintained. Her injury was caused solely by the existence of the steps. While it is true that Mrs. Hoglund was completely unaware of the existence of the steps, there is no basis either in the facts of this case or as a matter of law by which it can be said that Mrs. Hoglund had a right to expect or assume that the hallway into which she was entering would be free of steps. On the contrary, the courts have recognized that it is a matter of common knowledge that there are steps and changes in floor levels in many public places.2 But, what is more *784important in this case, the evidence was undisputed that Mrs. Hoglund had earlier negotiated two steps up to the level of the altar, and she was therefore on notice that somewhere she would have to step down two steps in order to get to the floor level which was common to the sanctuary and the social hall. Although this did not put her on notice that there were, in fact, steps, in the hallway, it did put her on notice that she had no right to expect or assume that the hallway would necessarily be level and free of steps down to the floor level of the social hall. Absent the right to expect or assume that the hallway would be free of steps, Mrs. Hoglund was guilty of contributory negligence as a matter of law when she fell down the steps in the darkness.

Being of this view, we hold that the trial court erred in denying defendant’s motion for directed verdict. The judgment is reversed and the cause remanded for entry of a judgment in favor of the defendant.

GONZALEZ, JOSE A., Jr., Associate Judge, concurs.

McCAIN, J., dissents, with opinion.

1

. McNulty v. Hurley, Fla.1957, 97 So.2d 185.

2

. Hoag v. Moeller, Fla.1955, 82 So.2d 138; Bowles v. Elkes Pontiac Co., Fla.1952, 63 So.2d 769; Matson v. Tip Top Grocery Co., 1942, 151 Fla. 247, 9 So.2d *784366; Jahn v. Tierra Verde City, Fla.App.1964, 166 So.2d 768; Milby v. Pace Pontiac, Inc., Fla.App.1965, 176 So.2d 554.

McCAIN, Judge

(dissenting).

I must respectfully dissent.

Defendant church appeals from a judgment for plaintiff upon personal injuries sustained by her resulting from a fall on church premises, the plaintiff having filed a remittitur, conditioned by the trial judge, of $20,000.00 to a jury verdict of $37,950.00. I would affirm.

The facts are succinctly stated in the majority opinion, i. e., plaintiff going into chuch sanctuary to show kneeling pads to a friend; taking two steps up to raised altar where pads were located; leaving altar area through dark and unlighted hallway leading to social hall; hallway being on level with altar and having two steps down to level of social hall; the door leading from altar into the hallway being completely open and pushed back against the wall, thereby rendering not visible a sign on it reading, “Caution — Steps”. It is equally clear this was the plaintiff’s first attempt to walk through the hallway. She did know of the steps and did not see them, but was feeling her way along by holding one hand against the wall. The switch to the light was in the middle of the hallway and could not be reached from either end without first stepping into the hallway. The steps down were located nearer the altar than the social hall. Upon reaching the steps plaintiff fell with resultant injuries.

The plaintiff’s status was that of a licensee placing her within the purview of the standard that a duty arises from a defendant to a licensee to warn of a defect or condition known to be dangerous when such danger is not open to ordinary observation by the licensee. McNulty v. Hurley, Fla.1957, 97 So.2d 185. That the steps in the hallway could constitute a dangerous condition not open to ordinary observation is obvious. Why else would a light be placed in this otherwise dark hallway or signs posted on the doorways alerting and cautioning persons to the presence of the stairs. The plaintiff was certainly no trespasser since the hallway was available to and used by other members of the church. With the hall unlit and cautionary signs not visible and with the plaintiff traversing it for the first time, the issue is raised whether the defendant breached a duty owed to the plaintiff.

The majority concludes that the plaintiff’s injuries were caused solely by the existence of the steps and not through any defect in the manner in which the steps were constructed or maintained. The hallway and steps were constructed of the same material with the steps not being located at the extremes of the hallway but off center favoring the altar side. With the light not on, the hallway was dark. These facts come within the rule enunciated in Milby *785v. Pace Pontiac, Inc., Fla.App.1965, 176 So.2d 554, 556, as follows:

> “ * * * It ¡s no(. negligence per se to have in a store or other building one floor at a lower level by a few inches than another, nor does it amount to negligent construction, unless the character, location or surrounding conditions of the step-down is such that a prudent person would not be likely to anticipate it. * * *»

As Milby concluded, I conclude here that the character, location and surrounding conditions of the steps and hallway could justify reasonable men in concluding that the defendant was negligent. See also Van Horn v. Food Service Equipment, Inc., Fla.App.1965, 177 So.2d 528.

The foregoing, however, is not dispositive of whether plaintiff was guilty of contributory negligence as a matter of law.

The majority relies heavily upon Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So.2d 116, and quotes extensively therefrom in furtherance of the general rule that unless a person has a right to expect the area over which he is passing to be free of the defect or obstruction, he proceeds at his peril and as a matter of law is guilty of contributory negligence if he moves into a strange and unfamiliar area in darkness. In reviewing Delany, however, we must bear in mind that it reversed a summary judgment for defendant in action by plaintiff for injuries sustained as a result of tripping in the dark over bumper logs bordering defendant’s parking lot. In determining that those facts were in a “twilight zone” with the real issue on the question of negligence or contributory negligence being whether the plaintiff had a right to assume that the course she took would not be encumbered, Justice Thornal also stated the exception to the general rule in this language:

> “ * * * [I] f the person injured has a right to assume that the area over which he travels is free of defects or obstructions, then the presence of controlling darkness will not convert his action into contributory negligence as a matter of law if he does no more than to rely on the normal and reasonable assumption that there are no dangerous defects or obstructions. * * * ”

In the principal “step” cases cited in Delany and holding contributory negligence as a matter of law, the plaintiffs were actually using the nondefective instrumentality that caused their injuries, i. e.,.stairs, whereas the plaintiff sub judice was attempting to negotiate a dark hallway and encountered the steps. See also Tybee Amusement Co. v. Odum, 1935, 51 Ga.App. 1, 179 S.E. 415.

I feel the church’s contention is also answered by Rubey v. William Morris, Inc., Fla.1953, 66 So.2d 218, 220, through the following language:

> “But we also recognize the exception to that rule stated as follows: ‘Under some circumstances, however, there may be a question for the jury rather than contributory negligence as a matter of law. This situation exists when the facts permit a finding that the injured party’s conduct had its basis in a reasonable expectation.’ Sherman & Redfield on Negligence, supra, section 131. Such an exception is applicable, we think, under circumstances which permit a finding that the injured party’s conduct had its basis in a reasonable expectation that no danger was to be apprehended in a given situation ; for it is not contributory negligence to fail to look out for danger when there is no reason to apprehend danger. J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45; Mertz v. Krueger, Fla., 58 So.2d 160. In other words, contributory negligence may be a jury question ‘where the injured person had possibly some right to assume that the place was safe.’ ” The church cites authority in support of

its position that plaintiff did not have the right to expect or assume that the hallway would be free of steps, because it is common knowledge that there are steps and uneven *786floor levels in many public places.1 The church contends that since plaintiff had earlier negotiated two steps up to the level of the altar, she was on notice that she would have to step down two steps in going from the altar to the social hall. I do not agree. Assuming negotiation of two steps up carries notice of having to negotiate two steps down, it does not necessarily carry the assumption the steps will be located in the near middle of a dark hallway.

Whether plaintiff had the right to assume that the hallway would be free of the drop-off which caused her injury was, under the facts of this case, a question for the jury. Delany v. Breeding’s Homestead Drug Co., supra.

The trial court was correct in denying both the church’s motion for summary judgment and motions for directed verdict, and in submitting to the jury the issue of plaintiff’s contributory negligence. Budgen v. Brady, Fla.App.1958, 103 So.2d 672.

The church’s remaining point concerns the refusal of the trial court to give one of its requested instructions to the jury. The substance of the requested instruction was adequately covered by those given by the court.

I would therefore affirm.

1

.Hoag v. Moeller, Fla.1955, 82 So.2d 138; Bowles v. Elkes Pontiac Co., Fla.1953, 63 So.2d 769; Matson v. Tip Top Grocery Co., 1942, 151 Fla. 247, 9 So.2d 366; Jahn v. Tierra Verde City, Fla.App.1964, 166 So.2d 768.