Portal v. Asencio

824 So. 2d 1041, 2002 WL 2008170

• Court: District Court of Appeal of Florida
• Decided: September 4, 2002
• Docket: No. 3D01-798
• Status: Published

Opinion

On Rehearing Denied

PER CURIAM.

On consideration of the motion for rehearing of plaintiffs/ appellants Marcelino Portal and Rosa Portal, his wife, we withdraw our previously issued opinion and substitute the following opinion:

Marcelino Portal, the plaintiff below, appeals from an adverse final summary judgment in this personal injury action. We affirm.

The plaintiff, an experienced repairman who inspected the ladder himself, stated in his affidavit that he saw nothing wrong with the ladder. The defendant also stated that he did not know of any defect in the ladder. Assuming there was any defect at all, it was a latent defect. As we stated in Storr v. Proctor:

The duty of the landowner to a business invitee is to maintain the premises in a reasonably safe condition and to warn the invitee of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care could not be known to him.... It is well settled that the property owner’s knowledge of a danger must be superior to that of the invitee in order to create a duty to warn of dangers unknown to the invitee.

490 So.2d 135, 136-137 (Fla. 3d DCA), rev. denied, 500 So.2d 546 (Fla.1986); see also Crawford v. Miller, 542 So.2d 1050, 1051 (Fla. 3d DCA 1989); Hurst v. Astudillo, 631 So.2d 380 (Fla. 3d DCA 1994). Accordingly, summary judgment was proper.

AFFIRMED.