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Open and Obvious Defense in Florida Premises Liability Injury Lawsuits

A Florida personal injury that occurs on someone else’s property can in some circumstances be compensated under the legal theory of premises liability. These theory opines that property owners owe varying degrees of duty to protect lawful visitors (and sometimes even lawful visitors) from unreasonable risk of harm. This could be a slip-and-fall, a dog bite, faulty stairs or negligent security resulting in vulnerability to a third-party criminal attack. One of the most common defenses in Florida premises liability lawsuits is the “open and obvious” doctrine. injury attorney

Essentially, as noted in the Florida Supreme Court’s 1952 decision in Early v. Morrison Cafeteria Co. of Orlando, a business property owner has a legal right to assume those invited to the site will perceive potentially dangerous conditions that are open and obvious to the ordinary senses. One has a duty to avoid these open and obvious dangers, and a business has no responsibility to warn patrons of these dangers. It’s the concealed dangers – those the business knows or should know about – that require warning. In any case, business property owners do have a responsibility to use “ordinary care” in keeping the site reasonably safe.

One premises liability case recently weighed by the U.S. Court of Appeals for the Seventh Circuit considered whether a teetering tower of rolled insulation at a hardware store customer loading area was an open and obvious hazard, or whether the business owed a legal duty to address or warn of the potential danger. 

Unsafe stacking in commercial retail locations – particularly those with warehouse models that store large, heavy items – can lead to serious injuries. It’s imperative for anyone injured to discuss their legal options with a dedicated personal injury attorney in Orlando as soon as possible after the incident.

In this particular case, plaintiff (a regular customer) and his adult son visited a home improvement store in Illinois to buy rolled insulation. After buying nearly two dozen rolls inside the store, plaintiff drove his van to the warehouse yard for loading. This was a self-service loading area, though a sign at the entrance indicated customers should call for assistance if needed. No store employees were present when plaintiff and his son exited to load the vertical stacks of rolled insulation (each about 16 feet high). As soon as they started loading, plaintiff remarked to his son about one of the stacks that appeared to be leaning and unstable. He would later say in deposition that it was “pretty obvious” the stack was potentially off-balance, and he urged his son to “keep an eye on it.” The two did not seek employee assistance. Plaintiff though it would be safe so long as neither touched the leaning stack, and says the pair proceeded with caution.

Plaintiff and son say they never touched the stack, but as they were finishing loading, with plaintiff standing about eight feet away, the stack fell on plaintiff, striking him and knocking him to the ground, ultimately resulting in a shoulder injury.

In the subsequent premises liability lawsuit for damages (with plaintiff seeking compensation for medical bills and lost wages), trial court ruled the store owed no legal duty to plaintiff (a key element in any negligence case) because the insulation stack that fell constituted an “open and obvious condition.” Summary judgment was granted in favor of defense.

On appeal, plaintiff argued the previous ruling was improper because he and his son had different interpretations of the potential risk of the stack. However, the appellate court noted both testified in depositions that the lean of the stack was “obvious.” Justices ruled although the two used differing terms to describe the stacks (one calling it “uneven” and another calling it “unstable”), this was a matter of semantics. The bigger issue was that both observed the condition to be “obvious.”

Justices then considered whether a reasonable person in that situation would recognize the apparent risk. They ruled a reasonable person with plaintiff’s knowledge would have appreciated the open and obvious danger. Thus, the trial court’s ruling in favor of the defense was upheld.

Although this is a disappointing outcome for the plaintiff, it’s nonetheless important to review what went wrong so future claimants have a better understanding of the legal challenges they may need to overcome to win their injury lawsuit.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Dunn v. Menard, Inc., Jan. 29, 2018, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Case of Restaurant Trip-and-Fall Over High Chair Leg Gets Second Shot at Trial, Dec. 28, 2018, Orlando Personal Injury Attorney Blog

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