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premise liability

Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein on June 15, 2019
Trial Perspectives / Comments Off on Premise Liability and the Obvious Danger Doctrine

In the premise liability context:

[T]he obvious danger doctrine provides that a landowner “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….” However, this protection does not extend to situations where the landowner “should anticipate the harm despite the fact that the dangerous condition is open and obvious.” To determine whether the obvious danger doctrine applies, a court must “consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

Shipman v. CP Sanibel, LLC, 2019 WL 2301599, *4 (M.D.Fla. 2019) (internal citations omitted).

For example, in Shipman, the plaintiff was an invitee of a resort. She slipped and fell on water that accumulated on a non-slip resistant tile floor in an open-air lounge adjacent to the pool. There is a sign at the open-air lounge that advises patrons to towel off before walking on the tile. There is also usually a wet floor sign to warn patrons that the tile floor might be wet; however, on the day the plaintiff slipped, the wet floor sign was not present. Those in Hollywood, FL, may wish to reach out to a Florida slip and fall accident attorney to take legal action against someone for injuries they have sustained.

On a summary judgment motion in federal court, one issue was the application of the obvious danger doctrine. The trial court found that there was an issue of fact as to whether the obvious danger doctrine applied. Even if water on the tile in the open-air lounge was open and obvious, there was a factual issue as to whether the resort should have warned the plaintiff of the condition, i.e., the resort should have anticipated the harm that water on the lounge’s tile floor poses. This is supported by the fact that the resort usually has a wet floor sign to warn patrons of this fact, but did not have the sign on the date in question. Moreover, there was also a factual issue as to whether the resort kept its premises in a reasonably safe condition by allowing non-slip resistant tile to remain wet in a location adjacent to the pool.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Posted by David Adelstein on February 10, 2019
Trial Perspectives / Comments Off on Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

 

Even with an open and obvious dangerous condition, there may still exist a duty to maintain the property and repair that same condition

In Middleton v. Don Asher & Associates, Inc., 44 Fla.L.Weekly D301d (Fla. 5th DCA 2019), the plaintiff was a unit owner in a condominium for 15 years. She slipped and fell while she was walking on the condominium’s premises.  In particular, she slipped and fell on a sidewalk that contained uneven joints between two concrete segments.  She sued her condominium association and property manager for negligence in a premise liability action.  The sidewalk was apparently a common element required to be maintained by the association. 

The condominium association and property manager filed a motion for summary judgment claiming that the plaintiff’s premise liability claim fails as a matter of law because the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.  The plaintiff countered that even if the condition was open an obvious, a fact issue remained whether the association and management company should have anticipated that condominium residents would use the sidewalk and, therefore, repair that condition.   The trial court granted summary judgment holding that the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.   This was reversed on appeal.

[T]he duty owed to invitees is ‘1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier.’… The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their own senses.” Middleton, supra (internal citations omitted).

The plaintiff was an invitee as she lived in the condominium.  There is law that finds that uneven floor levels are an open and obvious condition, so this did not appear to be a disputed issue.  Yet, although this means an owner may not have a duty to warn others of the open and obvious condition, this does not discharge the owner’s duty to “maintain the property in a reasonable safe condition by repairing conditions that they foresee will cause harm.”  Middleton, supraStated differently, the obviousness of a dangerous condition does not relieve an owner’s duty to repair that same condition.   

Here, if the property manager and association anticipated others would use the sidewalk and encounter the open and obvious condition, they still had a duty to maintain the sidewalk in a reasonably safe condition.  If they could anticipate others would use the sidewalk with the open and obvious dangerous condition, then, naturally, it could be anticipated that others could be harmed by that condition.  This does not mean that the plaintiff would not be found comparatively negligent for getting hurt on the open and obvious condition, it just means the association and property manager may have been negligent for not acting reasonably to maintain and repair the condition.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Premise Liability Claims and Duties of Owners to Invitees

Posted by David Adelstein on September 01, 2018
Trial Perspectives / Comments Off on Premise Liability Claims and Duties of Owners to Invitees

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? 

The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about and which are not known to the invitee in a timely manner. The open and obvious danger doctrine may discharge the duty to warn, but it “does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” 

TruGreen Landcare, LLC v. LaCapra, 43 Fla.L.Weekly D2027a (Fla. 5th DCA 2018) (internal citations omitted).

The open and obvious doctrine, referred to above, is a defense to owners in a premise liability claim and applies to the second duty — the duty to warn of latent dangerous conditions / defects.  But, this duty does not apply to dangerous conditions / defects that are open and obvious. 

The open and 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.”  “This doctrine rests upon the generally accepted notion 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.”  In analyzing whether a danger is open and obvious, “the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

TruGreen Landcare, LLC, supra (internal citations omitted).

As mentioned, if a potentially dangerous condition on the property is open and obvious, i.e., it is not latent / hidden, than an owner has a strong defense to an injured invitee’s premise liability claim. However, this open and obvious defense does not apply when a plaintiff claims that an owner or possessor negligently maintained the property in a reasonably safe condition (and this caused their injury).   “Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious.”  TruGreen Landcare, LLC, supra

In TruGreen Landcare, LLC, the plaintiff bypassed a sidewalk and walked in a landscaped area in front of a movie theater in a plaza.  As he was walking in the landscaped area, he tripped and fell in a depressed area.  The landscaped area was surrounded by sidewalk and was referred to as a palm tree planter square which was a grassy area with artificial turf with a palm tree in the center.  The plaintiff sued, among other parties, the landscaper for negligently maintaining the landscaped area (palm tree planter square) in a reasonably safe condition. The landscaper contended that it owed no duty to the plaintiff to keep that area in a safe condition or warn of any dangerous condition because, as a matter of law, landscaped areas are not dangerous conditions.  The landscaper further argued that the issue that caused the plaintiff to trip was open and obvious.

Remember, the open and obvious defense does not apply when the plaintiff is claiming that the owner or possessor of the property negligently failed to maintain the property in a reasonably safe condition. While this is generally an issue of fact for the jury, there are:

[S]ome conditions [that] are considered so obvious and not inherently dangerous that they do not, as a matter of law, support liability for the breach of the duty to maintain the premises in a reasonably safe condition.  In particular, landscaping features “are generally found not to constitute a dangerous condition as a matter of law.”  Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose or to warn that they are not safe for walking.  In these situations, the rule “is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness.” 

TruGreen Landcare, LLC, supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Applying the Tipsy Coachman Doctrine

Posted by David Adelstein on May 09, 2015
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In a previous article, I discussed the appellate doctrine known as the tipsy coachman doctrine, which stands for the principle that an appellate court can affirm a trial court even if the trial court reached the right result (supported by the record) but for the wrong reasons. This doctrine allows an appellee (party prevailing in the trial court and responding to appeal) that is arguing to affirm the trial court’s ruling to present any argument on appeal supported by the record even if that argument was not raised in the trial court. Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999).

For instance, a premise liability action is a type of negligence action where an invitee or attendee gets injured on another’s property.   The very first element to prove in any negligent action is that the defendant owed the plaintiff a duty of care. In a premise liability action, if a defendant is deemed to exercise control over the premises / property, the defendant owes a duty of care to keep the premises / property reasonably safe and warn others of latent perils and dangers on the premises / property.

Assume in this type of premise liability action, an attendee at a festival or outdoor event tripped and injured himself/herself over some exposed material penetrating from the ground. The attendee sued the organizers of the festival or event in a premise liability action. The festival argued that it had no duty to the attendee because it did not own the property where the attendee tripped on exposed material penetrating from the ground. The trial court agreed with the festival and entered summary judgment in favor of the festival.   On appeal, however, it appeared that the trial court incorrectly applied the law because the issue was not whether the festival actually owned the property where the attendee tripped, but whether it assumed any control over the premises in question that would trigger its duty to maintain that premises in a reasonably safe condition. The appellee, in trying to affirm the trial court’s ruling, raised an argument that was never raised at the trial level but supported by the record (the tipsy coachman doctrine). The appellee argued even if it had a duty to maintain the property, the exposed material that the attendee tripped on was so open and obvious as supported by the record that it had no duty to warn the attendee of this open and obvious condition. In other words, the appellee wanted to show that the trial court still reached the right result even if the trial court’s result was based on the wrong reason. (These facts are modeled after a recent appellate opinion in Cook v. Bay Area Renaissance Festival of Largo, Inc., 40 Fla. L. Weekly D1091b (Fla. 2d DCA 2015) where the appellee trying to affirm the trial’s court’s ruling raised a new argument to support the ruling not raised with the trial court.)

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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