What Is An Open and Obvious Hazard? How does it Impact my Florida Premises Liability Lawsuit?
On your way into your bank’s local branch to deposit a check, you trip and fall. You walked into the bank just like every other time, did not see a hole in the floor where one of the tiles was missing and in the process of being replaced, and stepped straight into the hole, twisting and breaking your ankle and damaging some ligaments. The ankle requires surgery and months of physical therapy and rehabilitation to return you to normal, along with tens of thousands of dollars in medical bills. You will be out of work for months, and it is unclear if your life will return to normal. As such, your damages as a result of your injuries from this incident will easily run into the tens of thousands, if not hundreds of thousands, of dollars. You file a lawsuit against the bank but all you hear from your attorney is the bank and its insurer refuses to consider even making a reasonable offer to settle your case. At a court-ordered mediation, the bank’s attorney keeps saying in his opening presentation that the hole you tripped and fell in was an open and obvious hazard, so this whole incident is your fault, not his client’s fault. What does that mean and why is he saying it?
Duty in Premises Liability Cases in Florida
Every premises liability case, whether it involves a slip and fall on a foreign substance, a trip and fall like the one described above or another type of incident in which someone is injured at a business establishment due to the business’s failure to properly maintain its premises, involves several legal questions as to who owned, leased or maintained the property at the time, the legal status of the injured person on that property, and what type of hazard caused his or her injuries.
The legal concept of duty revolves around what legal status a person is considered to have at the time he or she entered a property. The legal status a person occupies when he or she is injured then determines what duty the property owner or lessee owes to the person to warn of potential hazards in the property as well as to take affirmative steps to safeguard against any known or potential hazards present on the property.
The highest legal status that someone can have under Florida law is that of an invitee. This classification is divided into business invitees or public invitees; the category of business invitee is normally reserved for those who are invited to enter onto property to transact business with the property owner.
Therefore, if you are a bank customer and you enter the bank branch to transact business with the bank, you are most likely considered to be a business invitee and the bank would owe you the highest duty of care. The rationale behind this rule is that you are at the bank branch to do business and thereby benefit the bank, so it only makes sense that the bank should have a responsibility to you (as well as to other bank patrons) to take every step possible to ensure you are safe on its premises. Therefore, in this circumstance, the bank and its employees would be required to maintain the branch in a reasonably safe condition and warn those who enter the branch of any hazards the bank knows about or should know about.
Open and Obvious Hazard
However, even though the bank and its employees would owe you the highest duty possible under Florida law to ensure the bank branch is as safe as possible, there is another consideration at play in this scenario. Under Florida law, if the condition in which a person was injured is an open and obvious hazard or the injured party had prior knowledge of the existence of the hazard, then the property owner has no responsibility to warn you of the particular danger that the hazard poses.
Defense attorneys will routinely ask juries to find that a particular danger that resulted in your injuries was a open and obvious hazard. This would then relieve the property owner of the duty to warn you about it. Nevertheless, many defense attorneys fail to recognize that, in making this argument, they are in essence asking the jury to, for instance, let the bank off scot free in the scenario, given that in most cases a judge will let the jury determine whether the hazard was open and obvious or not. The degree to which a plaintiff may have caused his own injuries because of his awareness of the dangerous or hazardous condition or in not detecting a condition that is open and obvious is always considered by the jury, but it is by no means always a surefire winner for the defense.
Therefore, if the jury in the scenario above believes you could have been more careful in avoiding the hole into which you stepped and twisted your ankle, then it may decide you bore some fault in the occurrence of this situation. This may reduce your recovery because the jury would find you responsible to some degree for your own injuries. However, and regardless of what many defense attorneys may posture, juries also are not in the habit of regularly letting businesses like the bank in the scenario above off without providing any sort of compensation to those injured on the business’s premises, even if it is determined that the situation was an open and obvious hazard.
Contact Schwed Adams & McGinley
At Schwed, Adams & McGinley, our experienced personal injury attorneys have more than 150 years of representing the victims of slip and falls, trip and falls and all other premises liability and personal injury scenarios in Florida. During their collective decades of practice, our experienced Florida personal injury attorneys have dealt with many defense attorneys and business that seek to pass the buck for their own negligence to those who were injured through no fault of their own on the business’s premises. Our attorneys will always seek to obtain maximum compensation for your injuries, regardless of whose negligence caused those injuries. If you have been injured due to someone else’s negligence in Florida, contact the experienced personal injury attorneys at Schwed, Adams & McGinley, P.A today at 877-694-6079 or firstname.lastname@example.org for a free consultation.