NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TRACY GREENE and JOSHUA )

GREENE, )

)

Appellants, )

)

v. ) Case No. 2D18-4064

)

TWISTEE TREAT USA, LLC; MISSION )

BELL, S.C., LLC; and KIMCO REALTY )

CORPORATION, )

)

Appellees. )

________________________________ )

Opinion filed September 4, 2020.

Appeal from the Circuit Court for

Hillsborough County; Robert A. Foster,

Jr., Judge.

Chad A. Barr of Law Office of Chad A.

Barr, P.A., Altamonte Springs, for

Appellants.

David C. Borucke of Cole, Scott &

Kissane, P.A., Tampa, for Appellee

Twistee Treat USA.

Irene Porter of Hicks, Porter, Ebenfeld

& Stein, P.A., Miami; Shannon Kain of

Hicks, Porter, Ebenfeld & Stein, P.A.,

Hollywood; and Paul Weekley of

Weekley Schulte Valdes Murman &

Tonelli, Tampa, for Appellees Mission

Bell and Kimco Corporation.
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NORTHCUTT, Judge.

In this premises liability case, Tracy Greene and her husband appeal the 

final summary judgment in favor of Twistee Treat USA, LLC; Mission Bell, S.C., LLC; 

and Kimco Realty Corporation. The record evidence did not support the circuit court's 

conclusion that the defendants are absolved of liability because Greene was injured as 

a result of an open and obvious danger. Therefore, we reverse the judgment and 

remand for further proceedings.

Greene tripped and fell in the parking lot of a shopping center owned and 

maintained by Mission Bell and Kimco in the vicinity of a free-standing ice cream shop 

operated by their lessee, Twistee Treat. In a deposition and later in an affidavit, Greene 

recounted that the incident occurred when she was taking her two young daughters to 

get ice cream. After parking in the adjacent lot, she and the children were walking 

toward the Twistee Treat when she caught her shoe in a depression in the pavement. 

She fell, injuring her hand. 

The Greenes filed a four-count complaint. Greene alleged three 

negligence counts, one for each defendant, and her husband sued for loss of 

consortium. Mission Bell and Kimco moved for summary judgment, contending that 

because the depression in the parking lot was open and obvious, Greene could not 

establish a cause of action for negligence. The trial court agreed and rendered final 

summary judgment in favor of all three appellees.

We review summary judgments de novo. See Volusia Cty. v. Aberdeen at 

Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The movant for summary 

judgment bears "the burden of proving the absence of a genuine issue of material fact." 
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Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). The proof must be conclusive, and it must 

"overcome all reasonable inferences which may be drawn in favor of the opposing 

party." Id. (citing Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (Fla. 1965)). "If the record 

reflects the existence of any genuine issue of material fact, or the possibility of any 

issue, or if the record raises even the slightest doubt that an issue might exist, summary 

judgment is improper." Competelli v. City of Belleair Bluffs, 113 So. 3d 92, 92–93 (Fla. 

2d DCA 2013) (quoting Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d 

DCA 1979)). If there are no issues of material fact, the record must further establish 

that the movant is entitled to judgment as a matter of law. Aberdeen at Ormond Beach, 

L.P., 760 So. 2d at 130; Poe v. IMC Phosphates MP, Inc., 885 So. 2d 397, 400–01 (Fla. 

2d DCA 2004).

A business owner owes its invitee a duty to "use reasonable care to 

maintain the premises in a reasonably safe condition" and a duty to give "the invitee

warning of concealed perils which are or should have been known to [it], and which are 

unknown to the invitee and could not be discovered by the invitee even if he exercised 

due care." Williams v. Madden, 588 So. 2d 41, 43 (Fla. 1st DCA 1991). Here, the 

defendants' motion for summary judgment was based on the principle that premises 

owners have no duty to protect invitees from open and obvious conditions. "[I]n the 

usual case, there is no obligation to protect the invitee against dangers which are known 

to him, or which are so obvious and apparent that he may reasonably be expected to 

discover them." Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1311 (Fla. 

1986) (quoting W. Page Keeton, et al., Prosser & Keeton on Torts § 61, at page 427 

(5th ed. 1984)).
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The circuit court erred by applying that principle in this case because its 

applicability turned on material issues of fact. According to Greene, she observed the 

pavement ahead of her as she walked through the parking lot, but she did not see the 

hole before she tripped. She explained that the depression was the same color and hue 

as the surrounding pavement. From a distance, it blended into the parking lot such that 

she could not have discerned it until she was very close to it and looking down.

After she tripped, Greene observed the depression and photographed it. 

The picture, included in the summary judgment record, depicted a hole that was the 

same color as the surrounding asphalt and contained some dried leaves. The hole was 

clearly manmade; it was square, measuring three or four inches per side and three or 

four inches deep. (There was no proof of the hole's origin, but Greene posited that it 

was associated with a tent that in the past had been temporarily erected in the parking 

lot for purposes of selling fireworks.) 

Based on the foregoing evidence, a jury could conclude that the hole in 

the pavement was not so open and obvious that the defendants could reasonably 

expect that it would be discovered by an invitee such as Greene. See, e.g., Slaats v. 

Sandy Lane Residential, LLC, 59 So. 3d 320, 321 (Fla. 3d DCA 2011) ("[Plaintiff] 

testified that she was unable to see the step down because it was uniform in color and 

the afternoon sun was shining directly in her eyes."); Moultrie v. Consolidated Stores 

Int'n. Corp., 764 So. 2d 637, 639–40 (Fla. 1st DCA 2000) (holding that material issue of 

fact presented as to whether the pallet resting in aisle of retail store was open and 

obvious); Hadley v. Davjoy, Inc., 613 So. 2d 49, 51 (Fla. 4th DCA 1992) (holding that 
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jury question presented by poor lighting conditions which may have obscured step down 

from dance floor at wedding reception).

Moreover, the open-and-obvious-condition principle "is certainly not a 

fixed rule, and all of the circumstances must be taken into account." Ashcroft, 492 So. 

2d at 1311 (quoting Prosser & Keeton on Torts § 61, at page 427 (5th ed. 1984)). Thus, 

even when a dangerous condition is open and obvious, the occupier of the premises is 

not excused from its duties to protect or warn invitees if it reasonably should anticipate 

that the condition poses an unreasonable risk of harm to the invitee notwithstanding the 

obvious nature of the condition. 

This is true, for example, where there is reason to expect 

that the invitee's attention will be distracted, as by goods on 

display, or that after a lapse of time he may forget the 

existence of the condition, even though he has discovered it 

or been warned; or where the condition is one which would 

not reasonably be expected, and for some reason, such as 

an arm full of bundles, it may be anticipated that the visitor 

will not be looking for it.

Id. (quoting Prosser & Keeton on Torts § 61, at page 427 (5th ed. 1984)). "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." Id. at 1312 

(quoting Restatement (Second) of Torts § 343A (1965)).

In this case, the record reflects that the Twistee Treat facility was an 

example of "novel architecture" in that the building resembled an enormous ice cream 

cone. Greene recounted that she and her daughters were looking at the giant ice 

cream cone and commenting on it as they made their way through the parking lot 

toward the shop. She was also on guard for her children's safety, keeping an eye out 
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for vehicles driving through the lot. Certainly, a jury could conclude that the defendants 

reasonably should have anticipated that an invitee negotiating the parking lot to visit the 

ice cream shop would be distracted by its striking appearance and by the need to watch 

for approaching vehicles. See, e.g., Green v. Sch. Bd. of Pasco Cty., 752 So. 2d 700, 

702 (Fla. 2d DCA 2000) (holding that record failed to conclusively establish that 

property owner "should not have anticipated that an invitee who knew of the 

unprotected ledge nevertheless might fall from it in the darkness"); Moultrie, 764 So. 2d 

at 640 (holding that even if pallet resting in aisle of retail store was deemed open and 

obvious, there remained a fact question whether business should have anticipated that 

adult shoppers generally do not focus on the floor of an aisle when moving toward 

merchandise they propose to buy); Hadley, 613 So. 2d at 51 (holding that whether 

premises owner reasonably should have foreseen that invitee would fail to appreciate 

step-down from dance floor because of distractions associated with dancing at wedding 

reception presented jury question); Regency Lake Apartments. Assocs., Ltd. v. French, 

590 So. 2d 970, 973 (Fla. 1st DCA 1991) (holding that, although exposed tree roots in 

dog walk area of apartment complex were open and obvious, jury could find that 

premises owner should reasonably have foreseen that a person walking a dog will be 

distracted by actions of their dog or another dog).

We reverse the summary judgment rendered for the defendants and 

remand for further proceedings.

Reversed and remanded.

LaROSE and BLACK, JJ., Concur.