The obvious danger law says that an owner or possessor of land is not liable to his invitees for their injury by any condition on the land whose danger is known or obvious to them. However, if the owner or possessor should foresee the injury even though the invitee is aware of the hazard it or it is obvious, then the owner or possessor may be liable.
I want to talk about a past Florida case (not mine) to illustrate the obvious danger doctrine. “Doctrine” means law.
The case is Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005). In that case, Diane Aaron filed a premises liability lawsuit against Palatka Mall, L.L.C., which was doing business as Interlachen Mall. She sued to recover damages caused by her fall on a parking lot bumper on Palatka Mall’s property.
Fact: In a Florida slip and fall case, damages may include medical expenses, lost wages, pain, suffering, mental anguish, loss of enjoyment of life, property damage and more. The same is true for trip and fall cases and other premises liability cases.
The Aaron trial court ruled that Palatka Mall was not liable because the bumper was open and obvious. Aaron appealed the trial court’s ruling.
The appeals court stated the issue is whether it was right to dismiss Aaron’s case based on the obvious danger doctrine when:
- Aaron claims that Palatka Mall breached its duty to keep its premises in a reasonably safe condition; and
- There is evidence that the dangerous condition was located in a poorly lit parking lot and the accident happened late at night when it was drizzling rain.
“Breach” means to break. A “duty” is a legal obligation.
The Appeals court ruled that the trial court wrongly dismissed the case. Aaron sued claiming that Palatka Mall was negligent because it breached both its duty to:
- Maintain the premises in a reasonably safe condition; and
- Warn her of the dangerous condition, which she said was the parking lot bumper.
During the lawsuit, the defense attorney took her deposition wherein Aaron testified that:
- She went to Palatka Mall at about 9:15 p.m.
- It was raining before that time.
- When she got to the mall, the weather had cleared up to where it was a “light drizzle, misty, drizzly rain.”
- She parked in the spot closest to the store she wanted to go to so she would not get wet.
- She got out of her car, walked around the shopping cart return, and tripped over the parking lot bumper that she did not know was there.
- There were only two bumpers in the entire parking lot and the bumper that she tripped over was almost the same color as the parking lot surface.
- The lighting in the parking lot was very poor on the night she fell
- She could not see the bumper she tripped over.
The mall tried to dismiss the case (by filing a motion for summary judgment) by saying that the since the bumper was open and obvious, it was not liable for Aaron’s injuries.
Aaron produced an affidavit wherein she said that the parking lot bumper was a dangerous condition because:
- It was almost the same color as the rest of the parking lot.
- She tripped and fell late at night and there was not enough light to allow her to see where she was walking.
- It was raining when she fell.
- There were only two bumpers in the whole parking lot. They should not have been put there and not put throughout the entire lot.
- She was looking where she was walking when she fell.
As I said earlier, the trial court granted Palatka Mall’s motion for summary judgment on the basis that “the concrete parking bumper was open and obvious and was of a type that was to be expected in a parking lot. Although this incident occurred at night, it has been held that parking lot users have a duty to anticipate the presence of parking dividers day or night.”
The appeals court said that the obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious. Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309 (Fla.1986).
This doctrine is based on the belief that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the ordinary use of their senses. Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001).
In order to determine whether the doctrine applies in a given case, the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition. Id.
Tip: Every personal injury case is different. Do not compare your case with your friends. One factor can be the difference between a getting a big settlement and getting nothing.
The appeals court said “Generally, an invitee is owed two specific duties by an owner/occupier of land:
(1) To use ordinary care in keeping the premises in a reasonably safe condition, and
(2) To give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee.” Hylazewski v. Wet ‘N Wild, Inc., 432 So.2d 1371, 1372 (Fla. 5th DCA 1983); see Wolford v. Ostenbridge, 861 So.2d 455, 456 (Fla. 2d DCA 2003) (recognizing that these two duties are “distinct”); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986)(recognizing that these two duties are “alternative”).
The appeals court said that in addition to Aaron claiming that Palatka Mall’s negligence was based on the breach of the duty to warn of the alleged dangerous condition, she also alleges that the mall breached its duty to keep the premises in a reasonably safe condition.
The appeals court said that it was important that she alleged both those duties because the courts usually agree that the obvious danger doctrine does not apply when the negligence is based on breach of duty to maintain the premises in a reasonably safe condition.1
In Marriott International, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003), the court explained that the courts have continuously ruled that while the open and obvious doctrine may eliminate the duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition. Knight v. Waltman, 774 So.2d 731 (Fla. 2d DCA 2000); Kersul v. Boca Raton Cmty. Hosp., Inc., 711 So.2d234 (Fla. 4th DCA 1998); Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970 (Fla. 1st DCA 1991); Hogan v. Chupka, 579So.2d 395, 396 (Fla. 3d DCA 1991); Pittman v. Volusia County, 380So.2d 1192 (Fla. 5th DCA 1980).
In Pittman, the 5th DCA explained why the obvious danger doctrine does not apply to the duty to maintain the premises in a reasonably safe condition.
It said that to extend the obvious danger doctrine to prevent an injured person from recovery by eliminating a landowner’s or occupier’s duty to invitees to keep his premises in a reasonably safe condition would be inconsistent with the reasoning of belief of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), that liability should be apportioned according to fault. Pittman, 380 So.2d at 1193-94; see also Hogan, 579So.2d at 396 (citing Pittman).
The Aaron appeals court said that when an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious. See Lotto v. Point E. Two Condo. Corp., Inc., 702So.2d 1361, 1362 (Fla. 3d DCA 1997) (“We do not think that the obviousness of the condition relieved the condominium association of the duty to repair it…. We think there remains a factual issue whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby.”); Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991).
Tip: The injured person always wants to have an issue of fact. In a Florida personal injury case, a jury decides issues of fact.
If you can get your case to a jury, the prospective defendant will usually offer you money at some point. (This assumes that they have insurance, or money to pay.)
Defending a typical slip and fall case in front of jury will likely cost at least $15,000 to $20,000. I recently sued an apartment complex owner in a Miami personal injury case.
We settled at mediation. The defense attorney then told me that his attorney’s fees were about $17,000. After that point, it still took several hours to agree on settlement release language.
The defense attorney’s bill most likely increased. Most defendants want to avoid this cost and settle the case before trial. Many want to settle before a lawsuit.
Back to Aaron’s case. The appeals court said that the trial court was incorrect in entering summary judgment (dismissing) on Aaron’s claim that Palatka Mall breached its duty to keep the premises in a reasonably safe condition.
The appeals court also said that the trial court should not have dismissed Aaron’s claim for breach of duty to warn. The Appeals court’s reasoning why the trial court should not have dismissed the duty to warn claim was that Aaron testified that:
- There were only two bumpers in the entire parking lot;
- It was dark at the time of the accident. The parking lot was poorly lit;
- It had been raining. It was misty at the time of the accident;
- The bumper was almost the same color as the base of the parking lot; and
- She did not anticipate the bumper and could not see it despite the fact that she was looking where she was going.
The appeals court believed that the dark and rainy conditions and the inadequate lighting might have prevented Aaron from observing, with the use of her ordinary senses, any danger posed by the bumper. They thought that under these facts and circumstances, a jury should decide whether the parking lot bumper was a dangerous condition that was open and obvious.
The appeals court referred to a similar case, Rivard v. Grimm, 621 So.2d 580 (Fla. 4th DCA 1993) that said:
“There were also allegations that on the night in question, the light which normally illuminated this area of the complex was not working.
While open and obvious conditions may negate the existence of negligence and permit a summary disposition, the added factor of the effect or impact, if any, of the lighting in the subject area on visibility gives rise to a genuine issue of material fact—whether defendants were negligent in maintaining the lighting in the area where the accident occurred—whether there was any duty to maintain lighting in that area — whether irrespective of such lighting, there was sufficient illumination so as to preclude any negligence on the part of the defendants.”
The Aaron appeals court said that hidden and concealed dangers are the opposite of open and obvious dangers. They said that the obvious danger doctrine should not include instances where darkness and mist cover the dangerous condition.
They did say that in certain instances, that injured parties should be held accountable for their inattention to obvious dangers.
They said that they cannot say that Aaron’s accident is one of those instances because, based on the evidence, material issues of fact exist was to whether the bumper was a dangerous condition that was open and obvious.
The appeals court reversed the summary judgment. This sent the case back to the trial court.
I do not know if the case went to trial. Most cases settle before trial.
1 See Marriott Int’l, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003), and cases cited therein; Mashni v. LaSalle Partners Mgmt. Ltd., 842 So.2d 1035, 1039 (Fla. 4th DCA 2003)(“However, simply because a hazardous condition is open and obvious does not necessarily mean that the owners’ duty to maintain the property in a reasonably safe condition is discharged.”) Garcia v. Collazo, 758 So.2d 721 (Fla. 3d DCA 2000); Lotto v. Point E. Two Condo. Corp., Inc., 702 So.2d 1361 (Fla. 3d DCA 1997); Hancock v. Department of Corr., 585 So.2d 1068, 1071 (Fla. 1st DCA 1991) (“Hancock is in the position of an invitee, so although his knowledge of the defective stairway could discharge the Department’s duty to warn, such knowledge did not discharge the Department’s duty to maintain the premises in a reasonably safe condition by correcting dangers of which it had actual or constructive knowledge.”), review denied, 598 So.2d 75 (Fla.1992); see also Ashcroft v. Calder Race Course, Inc., 492 So.2d at 1309, 1311 (Fla.1986) (“`In any case where the occupier [of land] as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.'”) (quoting Prosser and Keaton, Law of Torts § 61 (5th ed.1984)); Avallone v. Board of County Comm’rs of Citrus County, 497 So.2d 934, 935-36 (Fla.5th DCA 1986) (“The county argues that the roughhousing was or should have been open and obvious to appellant, thus there was no duty to warn her of this condition, but this fact would not eliminate the county’s duty to use ordinary care to keep its premises in a reasonably safe condition and to correct dangers of which it had actual or constructive knowledge.”)
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