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Defending Florida Cases Involving Open And Obvious Conditions

It is not uncommon for plaintiffs to trip over wheel stops in parking lots and these cases often result in lawsuits, especially with the large elderly population in the State of Florida. Although these concrete structures at the front of parking spaces appear open and obvious, this does not stop plaintiffs' attorneys from filing suit. In pure comparative negligence states like Florida, the Plaintiff can collect a judgment even when he or she is primarily responsible for the accident.

Fortunately, recent case law is beneficial to the defense in Florida. In Ramsey v. Home Depot, 2013 Fla. App. LEXIS 17057 (Fla. 1st DCA 2013), the First District Court of Appeals found that a wheel stop was not an inherent hazard. In that case, the plaintiff alleged that the wheel stop was inherently dangerous. Additionally, the plaintiff alleged that the wheel stop was indistinguishable from the parking lot surface.

Of course, common sense would seem to dictate that a property owner should have no duty to a plaintiff who is injured by an open and obvious condition. However, at least one District Court of Appeals has held that a land owner still has risk in cases involving open and obvious dangers. In 2012, the Fourth District Court of Appeals held that the open and obvious nature of a risk obviates the duty to warn but not the duty to maintain property in a reasonably safe condition. In that case, the court was considering a tripping accident involving an obvious pothole. See Burton v. MDC PGA Plaza Corp., 78 So. 2d 732 (Fla. 4th DCA 2012).

In contrast, the Ramsey court held that there was no duty and no liability. In Ramsey, the plaintiff initially argued that there was duty to warn patrons regarding the wheel stops. Home Depot argued that it had no duty to warn because the wheel stop was open and obvious. The Court of Appeals held that the wheel stop was not concealed and that there was no duty to warn. The court reasoned that “a wheel stop placed in the center of a parking space and clearly visible presents no unreasonable risk of harm.” The court concluded that “the wheel stop would have been readily observable to patrons employing their own senses.” Further, the court noted “the fact that Mrs. Ramsey did not see the wheel stop (did) not render the wheel stop a dangerous condition, let alone one that was not open and obvious.”

Additionally, the Court of Appeals considered plaintiff's second argument that the wheel stop was an unreasonably unsafe condition. Home Depot submitted pictures to show that the wheel stop was not inherently dangerous and an expert affidavit (and live testimony) to support its contention that the wheel stop met all ADA and local building code requirements. The court found that Home Depot reasonably maintained its premises and was entitled to summary judgment as a matter of law. Thus, common sense and logic prevailed and the plaintiff was not allowed to collect on her own clear lack of due care.

This case (and others) can create a strong defense where a trip and fall accident occurs in the area of an obvious condition. Certainly, this case is strong precedent where a plaintiff trips on a wheel stop. However, the same logic certainly applies to curbs, displays and shelves in stores and other open and obvious structures.

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