What Does “Open and Obvious” Mean and Why Does It Matter in Premises Liability Cases in Florida?
You are walking across a parking lot towards the grocery store, noticing a large hole that you always take great care to avoid, when your phone unexpectedly rings. You immediately fumble in your pocket to get it out and, the next thing you know, you are on the ground with a throbbing knee and it takes several store employees to help you up. You are in such excruciating pain that you cannot walk, even when supported by the two employees. They take you inside the store to get you help. After an ambulance is called, you are approached by a store manager who asks you what happened and wants you to fill out some paperwork about what occurred. The store manager keeps pressuring you to say that you saw the pothole, knew it was there and still tripped in it. Despite the pain you are in, you’re left with a vague sense of uneasiness after you scrawl a barely legible version of your signature at the bottom of the incident report the store manager hands you to sign after she is finished filling it in.
Florida Law Regarding Open and Obvious Hazards
Anyone who has ever suffered a trip or slip and fall accident, and suffered injuries as a result will have heard the term “open and obvious” hazard. For someone who has never suffered an injury in this type of scenario, you will become very familiar with the term during the course of a lawsuit against whomever owned the property where you slipped or tripped and fell. An open and obvious hazard means that whatever caused you to trip or slip was something that you either already knew or should have known about.
If something is determined to be open and obvious, then a business or property owner does not have a legal duty to warn someone visiting the property or business of the presence of that particular hazard or dangerous condition. This does not mean, however, that the business or property owner is not liable for the incident in which a person trips and falls and is injured as a result of that open and obvious hazard. Instead, the business or property owner can still be held liable for a failure to maintain the property that resulted in the hazard forming in the first place.
Not a Complete Win for the Defense
While defense attorneys like to act as if any hazard or dangerous condition in which someone is injured that can be called “open and obvious” makes for a slam dunk case, this misses the point. If a hazard or dangerous condition is determined by the court to be open and obvious, the defense attorney still has to convince the judge and jury that the hazard or dangerous condition did not form as a result of the business or property owner failing to adequately maintain the business or property, but from some other reason. This can be much harder given that hazardous or dangerous conditions, like a pothole in a parking lot, rarely form by themselves in properly maintained premises.
Therefore, to again borrow the example above of the person who trips and falls in a large hole in the parking lot, the grocery store would still need to prove that it was not negligent in failing to maintain the parking lot, leading to the formation of the large pothole in which you tripped and fell. Given that the store manager clearly knew about this pothole from the way she was pressuring you to state you noticed it, and that potholes do not just form out of thin air, this will be a real problem for the grocery store if you end up filing suit.
Contact Schwed, Adams & McGinley
At Schwed, Adams & McGinley, our experienced personal injury attorneys have more than 200 years of combined legal experience. Many of the clients we represent have been injured in trip and falls or slip and falls that occurred where the hazard or dangerous condition may ultimately be deemed to be open and obvious. Florida law is somewhat unforgiving if the hazard or dangerous condition is ultimately deemed open and obvious, but that still does not make any case a slam dunk for the defense. Our experienced attorneys have handled over 15,000 cases successfully, enough to know how to convince a jury that it was a business or property owner’s failure to maintain the premises that caused whatever was open and obvious to form in the first place. Therefore, if you were the victim of someone else’s negligence in a slip and fall or trip and fall in the Sunshine State, contact our experienced personal injury attorneys today at firstname.lastname@example.org or (877) 694-6079 today.