5D05-1013 Aguiar v. WaltDisney

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-1013

Case Date: 02/20/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

FATIMA AGUIAR AND JOSE AGUIAR, Appellant, v. WALT DISNEY WORLD HOSPITALITY, ETC., Appellee. ________________________________/ Opinion filed February 24, 2006 Appeal from the Circuit Court for Orange County, Janet Thorpe, Judge. Scott Alan Orth, Law Offices of Scott Alan Orth, P.A., Miami Beach, for Appellant. Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee. Case No. 5D05-1013

PER CURIAM. This is the appeal of a summary final judgment entered in favor of Walt Disney World Hospitality & Recreation Corporation, Inc. ["Walt Disney"] in a premises liability action. We reverse. On March 4, 2002, forty-three-year-old Fatima Aguiar ["Aguiar"] fell and severely injured her knee while stepping off a curb at Walt Disney World's Magic Kingdom. She and her husband filed suit against Walt Disney, the entity that owns and operates the Magic Kingdom. The complaint alleged that Walt Disney had breached its duty to maintain its premises in a reasonably safe condition and to warn invitees of a known

dangerous, hazardous and/or unsafe condition, causing Aguiar to fall and suffer injuries while walking through the park. Aguiar's testimony at her deposition revealed that on March 4, 2002, between 7 and 8 p.m., she was walking next to the castle in the Magic Kingdom, headed towards the shops and the exit. The night was clear and it was crowded. She purposefully stepped off the sidewalk and curb with her right foot. She was looking down as she stepped and did not see or feel anything. As she stepped, she went down on all fours, striking her left knee. She was crying for the first two or three minutes after the fall, but then she began to look around to see what had caused her to fall. The "only thing that [she] saw there" was a small piece of rubber sidewalk caulking. The piece was above ground level and bent or folded but was connected to the rest of the caulking. Aguiar assumed that it had caused her accident, since it was right next to her on the ground, and nothing else was there. However, on cross-examination, she admitted that she could not be sure what she had slipped on: Q. . . . Did you observe your right foot

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