“Open and Obvious” Dangers in Florida

Slip and fall cases can be difficult to prove, particularly if the hazard that causes the fall is somewhat “open” or “obvious.” A recent case arose when a customer at Home Depot parked her car in a designated accessible parking space and upon returning to her car tripped over a wheel stop where her car was parked. It was a clear, sunny morning and she was carrying her purchases, a purse and keys.

The woman looked at the accessibility sign, but did not see the wheel stop because it was the same color as the parking lot. Her left foot caught on the wheel stop and she fell. She was hurt and had medical expenses. She and her husband filed a personal injury lawsuit against Home Depot.

The plaintiffs argued that the wheel stop was a dangerous condition and the defendant had an obligation to maintain the premises and to warn of any dangerous conditions on the property. Home Depot moved for summary judgment, arguing that the wheel stop was an “open and obvious” danger and therefore, it had no duty to warn customers about the wheel stop. It also argued there were no disputed issues of fact regarding its maintenance of the property.

The motion was accompanied by an affidavit from a professional engineer. He submitted his opinion that the accessible parking spaces met the requirements of all relevant statutes including the Americans with Disabilities Act and the building code. The testimony of Home Depot’s construction manager was also submitted. He testified that the purpose of the bollards was to prevent the accessibility signs from being hit or bent.

The plaintiffs relied on their own experts and the injured woman’s deposition testimony to oppose the motion. Their engineering expert testified that Home Depot could have used shorter wheel stops to prevent the tripping risk. Because they were used in an area for disabled people, they created a barrier to a flat, even surface for walking. Home Depot could have used a reasonable alternative design that removed the wheel stops and only used concrete collards to protect pedestrians.

The trial court granted summary judgment for the defendants. The plaintiffs appealed. The appellate court explained that the plaintiffs needed to provide evidence that Home Depot failed to warn the woman of a concealed danger that it knew or should have known of, but which was not known to the plaintiff or that Home Depot did not use ordinary care to maintain its premises in a reasonably safe state.

The appellate court affirmed the trial court’s determination that the plaintiffs were wrong that Home Depot didn’t warn of a concealed condition. The court agreed with the defendants that the wheel stop was an open and obvious condition. There is no duty in Florida to warn against an open and obvious condition, if it is not inherently dangerous. The wheel stop was concrete, centered between the parking stripes, and the lot was asphalt. There were no allegations of design defects or insufficient lighting. The woman had admitted she was looking at the accessibility sign instead of where she was going.

The appellate court also agreed with the defendant that the plaintiffs had not raised a controversy of fact as to whether Home Depot had maintained the premises in a safe state. The plaintiffs’ expert had offered alternative designs that he preferred without creating an issue of fact about Home Depot’s duty to actually follow the alternative designs. The appellate court affirmed the lower court.

If you are injured on somebody else’s premises, you should be aware that slip and fall cases are hard to prove and it is important to retain a personal injury attorney with specific slip and fall experience to advocate on your behalf with the defendant, its insurers, or its representatives.

If you are seriously injured on somebody else’s property, contact the experienced Florida premises liability attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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