[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10496

Non-Argument Calendar

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MONIKA FENYVESI, 

Plaintiff-Appellant,

versus

SUNCOAST MOTEL AND APARTMENTS, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cv-03026-TPB-JSS

____________________

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2 Opinion of the Court 22-10496

Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

While staying at a motel in Florida, plaintiff Monika 

Fenyvesi fell and was injured. She sued the owner of the motel, 

Suncoast Motel and Apartments, Inc., for negligence. The district 

court granted summary judgment to Suncoast because Fenyvesi 

failed to come forward with evidence establishing that it breached 

any duty. After careful consideration, we affirm. 

I. FACTUAL BACKGROUND 

Fenyvesi, a German citizen, traveled to Florida on vacation 

with her husband. They arrived at the motel and went to their 

room, which had a balcony facing west toward the Gulf of Mexico. 

Upon entering the room, Fenyvesi saw the sun was setting and 

wanted to take a picture from the balcony. 

Fenyvesi opened the sliding glass door that separated the 

room and the balcony. To get to the balcony, she had to step over 

a raised threshold, which held the track for the sliding glass door. 

Fenyvesi saw the raised threshold and expected the floor of the balcony to be the same height as the floor of the room. But the floors

were not level: the balcony floor was about three inches lower than 

the room floor. Fenyvesi claims that because of the light from the 

sunset, she was unable to see that the balcony floor was lower than 

the room floor. Because she did not anticipate the step down on 

the other side of the threshold, Fenyvesi fell and was injured. 

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Fenyvesi sued Suncoast, alleging that it was negligent in failing to warn her of the unsafe condition created by the step down.

Suncoast moved for summary judgment, arguing that it owed no 

duty to warn about the step down because it was an open and obvious condition.

The district court granted Suncoast’s motion for summary 

judgment, concluding it owed no duty to warn about the step 

down. The court explained that under Florida law a step down was 

generally an open and obvious condition that requires no warning.

Although Florida courts had recognized some exceptions that required an owner to warn of a step down in certain circumstances, 

the court concluded that none of the exceptions applied in this case. 

This is Fenyvesi’s appeal.

II. STANDARD OF REVIEW 

“We review de novo the district court’s grant of summary 

judgment, construing the facts and drawing all reasonable inferences in favor of the nonmoving party.” Smelter v. S. Home Care 

Servs., Inc., 904 F.3d 1276, 1284 (11th Cir. 2018). Summary judgment is appropriate if the record gives rise to “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). A genuine dispute of material 

fact exists when “the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

III. LEGAL ANALYSIS 

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This premises liability case boils down to the question of 

whether under Florida law1 Suncoast, the property owner, had a 

duty to warn Fenyvesi, an invitee, about the step down from the 

room to the balcony. We conclude that it owed no duty to warn. 

A property owner generally must warn an invitee “of concealed perils which are or should be known to the property owner, 

and which are unknown to the invitee and cannot be discovered by 

him through the exercise of due care.” Collins v. Marriott Int’l, Inc., 

749 F.3d 951, 957 (11th Cir. 2014) (quoting Fieldhouse v. Tam Inv. 

Co., 959 So. 2d 1214, 1215 (Fla. Dist. Ct. App. 2007)). But a property 

owner has no duty to warn of an “open and obvious hazard.” Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. Dist. Ct. 

App. 2012).2

Under Florida law, a property owner generally does not owe 

a duty to warn an invitee of a change in floor level. See Casby v. 

Flint, 520 So. 2d 281, 282 (Fla. 1988). Because this “type of construction is common,” an invitee cannot “assume that the floors” of a 

1 The parties agree that we look to Florida law. 

2 Separate from the duty to warn, a property owner also has a “duty to maintain the property in a reasonably safe condition by repairing conditions that 

[it] foresee[s] will cause harm.” Middleton v. Don Asher & Assocs., Inc., 262 

So. 3d 870, 872 (Fla. Dist. Ct. App. 2019); see Lomack v. Mowrey, 14 So. 3d 

1090, 1092 (Fla. Dist. Ct. App. 2009) (explaining that a property owner owes a 

duty to maintain the property in a reasonably safe condition even when it 

owes no duty to warn). Because Fenyvasi’s arguments on appeal relate solely

to the duty to warn, we do not address the duty to maintain. 

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building “in the same story have the same level, blindly travel on 

the presumption, disregard his own safety, stumble, fall, and recover.” Schoen v. Gilbert, 436 So. 2d 75, 76 (Fla. 1983); see also 

Casby, 520 So. 2d at 282 (“[I]t is common knowledge that a room 

obscured by dim lighting . . . may contain different floor levels”).

There is an exception to this general rule. Florida appellate 

courts have recognized that a property owner has a duty to warn 

about a step down when the “character, location or surrounding 

conditions of the step-down are such that a prudent person would 

not anticipate it.” Nw. Fla. Crippled Children’s Assoc. v. Harigel, 

479 So. 2d 831 (Fla. Dist. Ct. App. 1985). This exception applies 

when the property owner used an “uncommon design or mode of 

construction creating a hidden danger.” Casby, 520 So. 2d at 282.

The decisions in Kupperman v. Levine, 462 So. 2d 90 (Fla. Dist. Ct. 

App. 1985), and Harigel provide examples of when this exception 

applies.

In Kupperman, the court held that homeowners owed a 

duty to warn a guest about a change in floor level. 462 So. 2d at 91. 

The floor level changed in the middle of the homeowners’ dining 

room. Id. They arranged their dining table and chairs to give the 

illusion of a level floor. The chair backs and seats were of even 

height, but this was only because some chairs had longer legs to 

account for the change in floor level. Id. Given “the uncommon 

mode of construction—a change of floor level in the middle of a 

room—and a choice of furniture designed to create the illusion of 

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6 Opinion of the Court 22-10496

a level floor,” the property owners owed a duty to warn their 

guests. Id. 

In Harigel, the court held that a store owed a duty to warn 

its customers of a step down from a platform. 479 So. 2d at 832–33. 

The store displayed clothing hanging from a pipe that ran above 

the platform. Id. at 832. The pipe with the merchandise hanging 

extended several feet beyond the edge of the platform. Id. A customer who was looking at the clothing on display fell because she 

did not see that the platform ended. Id. Because the store had arranged its merchandise so that a customer’s eyes were focused on 

the displayed merchandise, not the edge of the platform, the court 

held that the store had a duty to warn of the dangerous condition 

created by the step down. Id. at 832–33.

After considering Kupperman, Harigel, and other Florida 

step-down cases, we cannot conclude that Suncoast owed a duty to 

warn here. Because it is common for there to be a difference in 

floor levels, we conclude that the step down from the motel room 

to the balcony was not an inherently dangerous condition. And the 

exception that requires a property to warn of a step down when 

there is an uncommon design or mode of construction does not 

apply here. Unlike the property owners in Kupperman, Suncoast 

did not create an optical illusion to conceal the change in elevation 

between the room and the balcony. See 462 So. 2d at 91. And unlike the store in Harigel, Suncoast created no distraction that drew 

Fenyvesi’s attention away from the step down. See 479 So. 2d at 

832–33.

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Fenyvesi nevertheless argues that Suncoast owed a duty to 

warn her about the danger associated with the step down even if it 

did not create the distraction or circumstances—in this case, the 

glare from the sunset—that caused her not to see the step down. 

The only case Fenyvesi cites to support her position is Krivanek v. 

Pasternack, 490 So. 2d 252 (Fla. Dist. Ct. App. 1986). 

In Krivanek, a citizen went to a building to vote in an election. Id. After entering the building, she walked toward the room 

with the voting machines. Id. A deputy sheriff, who was “acting as 

an election official,” opened the door to the room with the voting 

machines and said good morning to the citizen. Id. Because the citizen was looking at the deputy sheriff and responding to his greeting, she did not see a several-inch step down and fell over it. Id. at 

253. The Florida court concluded that the supervisor of elections 

owed a duty to warn about the step down. Id. The court explained 

that there “were sufficient circumstances other than just the 

change in floor level to sustain the finding of negligence on the part 

of” the supervisor of elections and thus the cases applying the general rule that an owner had no duty to warn of a step down could 

be “distinguish[ed].” Id. at 253.

Fenyvesi says Krivanek established that a property owner 

may have a duty to warn of a step down even when a “distraction

was created by someone other than the owner of the premises.” 

Appellant’s Br. at 14. But she overlooks that in Krivanek there was 

a direct connection between the individual who created the distraction (the deputy sheriff) and the premises owner (the election 

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supervisor). Because the deputy sheriff was “acting as an election 

official” when he greeted the citizen and created the distraction 

that caused her not to see the step down, the Florida court imputed 

his actions to the election supervisor. Krivanek, 490 So. 2d at 252–

53. We thus cannot say that Krivanek supports Fenyvesi’s position 

that Suncoast owed a duty to warn her about the danger associated 

with the step down even if it did not create the distraction—the 

glare associated with the sunset—that caused her not to see the 

step down.3

Fenyvesi also argues that Suncoast owed a duty to warn her 

of the step down even if there was no uncommon design or mode 

of construction. She maintains that Florida cases recognizing a duty 

to warn of a step down only in these narrow circumstances are distinguishable because those cases involved step downs located inside of buildings and did not address whether an owner has a duty 

to warn about a step down that requires a person to cross from 

inside a building to the outside. But a Florida appellate court has

rejected a similar argument. See Allen v. Young, 807 So. 2d 704, 

706–07 (Fla. Dist. Ct. App. 2002). 

3 In a footnote, Fenyvesi suggests that Suncoast owed a duty to warn because 

the change in elevation associated with the step down violated the local building code. But we will not consider this argument because Fenyvesi failed to 

raise it in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 

1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the district court and 

raised for the first time in an appeal will not be considered by this court” (internal quotation marks omitted)). 

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In Allen, a guest was attending a party at a home and fell as 

she walked between the patio and pool. Id. at 705. Claiming that

she fell because there was an “unmarked, hard to observe, change 

in elevation,” she sued the homeowners for failing to warn her of 

the condition. Id. The guest argued that cases recognizing a duty 

to warn only when there was an “uncommon design or mode of

construction” that concealed a step down were inapposite because 

those cases “involve[d] accidents that occurred inside . . . rather 

than outside.” Id. at 705–06. The court rejected this argument, stating “[w]e can discern no basis for applying different principles to a 

patio injury as opposed an injury that occurs inside.” Id. Based on 

the reasoning in Allen, we discern no basis for applying different 

principles to an injury that occurs due to a step down when an invitee crosses a threshold to pass from inside a building to the outside than would apply to an injury that occurs due to a step down 

when an invitee moves inside a building.

IV.CONCLUSION 

For the reasons set forth above, we affirm the district court’s 

grant of summary judgment.

AFFIRMED. 

 

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