Our Miami premises liability lawyers often publish blog articles that highlight the many obstacles trip and fall victims face when pursuing personal injury lawsuits in Florida. Although the legislature has placed obstacles in the path of those injured because of falls due to lack of maintenance and care, a recent decision of an appellate court in Florida provides encouragement for plaintiffs injured because of the negligence of property owners. In a recent case, the court considered whether the “obvious” nature of a hazard entitled a defendant to summary judgment.
The plaintiff was injured while attempting to conduct a banking transaction at an ATM machine at the defendant bank. The plaintiff planned to drive up to the ATM machine but decided to use the walk-up ATM when she discovered the bank was no longer open. When the plaintiff approached the area of the outdoor ATM, she discovered the area was under construction. The plaintiff testified to the court that a sign was positioned in front of the cash machine with an arrow directing patrons to proceed around a barrier in front of the construction. When she walked around the barrier in the parking lot, the plaintiff stepped into what she characterized as a “pothole” that caused her to fall. The plaintiff suffered an injury to her back and neck and a fractured leg and foot.
The bank customer filed her lawsuit based on premises liability against both her bank and the construction firms performing the work. The plaintiff alleged two specific theories of liability: (1) failure to warn of the hazardous condition and (2) failure to maintain the premises in a safe condition. The defendants filed a motion for summary judgment contending that the pothole the plaintiff alleged caused her fall was an obvious hazard.
The open and obvious doctrine is a classic defense strategy in slip and fall and trip and fall cases involving hazardous conditions on the premises of property owners. This legal defense often will be raised during summary judgment to prevent a plaintiff in a slip and fall case from even getting their case before a jury. Even if a plaintiff withstands summary judgment on this issue, the defense will often raise this argument again during the trial stage to avoid liability.
The recent decision is encouraging because the court suggested the issue of whether a hazard was open and obvious should not be evaluated independently from issues involving the conduct and knowledge of the defendant. The appellate court reversed the trial judge’s ruling which granted summary judgment for the defendants. The court did not disagree that the hazard was obvious, but the obvious nature of the danger did not abrogate the property owner’s duty to maintain the property in a reasonably safe condition. According to the court opinion, issues must still be considered like the length of the time the hazard was present and any knowledge of the defendant of the existence of the unsafe condition.
When you slip and fall in the parking lot of a business, a complex factual inquiry is necessary to present a compelling claim. Given the intense factual inquiry involved in these types of cases, fall victims should promptly retain an experienced Miami personal injury attorney who can initiate an investigation of the scene, analyze the causal factors, and consult with appropriate experts.
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