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Florida Second DCA reverses summary judgment for defendant in premises liability case, finds that condo association president's knowledge of elevator complaints precluded summary judgment

On July 8, 2020, in Vogel v. Cornerstone Doctors Condominium Association, Inc., No. 2D19-1084, the Florida Second DCA reversed a trial court’s summary judgment for the defendant in a premises liability case after concluding that genuine issues of material fact existed concerning whether the defendant acted reasonably in maintaining the elevator that allegedly caused the accident.  At the time of the accident, the plaintiff was going to visit to his doctor’s office on the second floor of the building and fell when he stepped into the elevator, which allegedly had failed to level and was 18 to 24 inches below the landing.  The plaintiff sued the condo association which owned the building for his injuries, alleging negligence and negligence per se based on a violation of section 399.02(5)(b), Florida Statutes (2013), which is part of Florida's Elevator Safety Act. During discovery, the defendant produced documentation that the elevator had been regularly inspected under a maintenance contract and the defendant’s property manager testified that he had not been informed of problems since the service company replaced  a sensor approximately six months before the accident. However, one of the doctors with an office in the building who was also the President of the defendant condominium association testified that he had been aware that patients of one of the other doctors had made repeated complaints about the elevator not working properly in the two-year time period that included the date of the accident, although no one ever alerted the property manager. The Second DCA concluded that in light of condominium association president’s  knowledge of the problem with the elevator it was for a jury, rather than the trial court, to determine whether the defendant had used reasonable care to learn of the existence—or lack thereof—of a dangerous condition on its premises. Regarding the negligence per se count, the defendant argued that that section 399.02(5)(b) did not create a private right of action by an injured party against a property owner. However, the Second DCA noted that it held to the contrary in Golden Shoreline Limited Partnership v. McGowan, 787 So. 2d 109 (Fla. 2d DCA 2001).

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