SUMMARY JUDGMENT ON PROPERTY CONDITION THAT WAS "OPEN AND OBVIOUS"
June 4, 2021
In a South Florida slip and fall case, we recently obtained summary judgment extinguishing our client's "Duty to Warn." We argued that the alleged condition was "Open and Obvious" based on the plaintiff's testimony. Specifically, we argued that the plaintiff had "actual knowledge" of the condition because she testified she had reported it to property management four months prior to the incident.
Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition (aka “duty to maintain”); and (2) the duty to warn about dangerous conditions which the possessor had, or should have had, knowledge greater than that of the invitee (aka “duty to warn”) Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005). Under Florida law, while the open and obvious nature of a dangerous condition generally does not discharge a possessors' duty to maintain, it still discharges the possessor's duty to warn. Id.
Because the "open and obvious" defense usually does not extinguish a possessor's "duty to maintain," it is very often overlooked by defense counsels. Here, while summary judgment has not disposed of the entire lawsuit, it has certainly weakened Plaintiff's case and strengthened ours. In addition to limiting our client's duty of care, because the court has now ruled that the alleged condition was open and obvious, this can be communicated to the jury and used to argue the plaintiff's comparative negligence - ultimately reducing our client's exposure at trial.
Additionally, under Florida law, there are two situations where the open and obvious defense will allow for summary judgement on the entire claim.
If the condition is "SO open and obvious"
If the condition is open and obvious AND "not inherently dangerous."
A good case that explains these two situations is Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017) There, the plaintiff sued a grocery store because he tripped over an empty pallet that was located outside the store's entrance and exit doors. Based on the plaintiff's deposition testimony - specifically that he had seen the pallet prior to the incident - the court held that the pallet was open and obvious. However, notably, the court summary judgment on the entire claim for the above two reasons.
First, the court held that summary judgement on the entire claim was proper because in addition to being open and obvious, the pallet was "not inherently dangerous." (“Some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition." Id. at 1132.). In reality, while virtually anything with a hard surface or sharp edge is capable of causing injury, the majority of conditions around us cannot reasonably be considered "inherently" dangerous. Florida courts have previously held that parking curbs and changes in floor elevations are things that are not inherently dangerous. For purposes of litigation, a condition that is not inherently dangerous is something that, while capable of causing injury (as virtually everything can), is traditionally used in a non-dangerous manner (aka it has a non-dangerous utility). For example, in Brookie v. Winn-Dixie, if the plaintiff cut herself on the pallet's broken piece of wood, then the alleged dangerous condition would have been a "broken pallet", and summary judgement probably would not have been granted. While a pallet is frequently used in a non-dangerous manner, the same cannot be said about a broken pallet, which has virtually no utility.
Second, the court held that, even if the pallet could be considered inherently dangerous (and specifically the location of the pallet), summary judgment was nonetheless appropriate because the condition was "so" open and obvious ("where the condition may be dangerous but is so open and obvious that an invitee may be reasonably expected to discover them to protect himself." Id. at 1133.) Some examples of other conditions that have been held in Florida to be "so" open and obvious are sidewalk curbs, wheel stops, and tree roots. "Some conditions are simply so open and obvious, so common and so ordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition." Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). For purposes of litigation, usually, conditions that are larger and readily observable within normal lines of sight (i.e. elevated more than a couple inches off the ground), are the types that can fall into this category.
Regardless of the circumstances, defense counsel should always aggressively pursue an open and obvious defense whenever possible. And with Florida's recent adoption of the federal summary judgment standard, your chances of success have never been better.