Case Notes

CASE NOTE – Open and Obvious Danger? A Landowner’s Duty to Maintain Safe Conditions for Invitees Remains

By May 1, 2015 May 4th, 2015 No Comments

By: Steven DiOssi, Esq.

A business owner owes two duties to a business invitee: (1) a duty to warn of perils that were known or should have been known to the owner and which the invitee could not discover; and (1) a duty to take ordinary care to keep its premises reasonably safe. Delgado v. Landromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011). The two duties are not the same. Recently, in Denson v. SM-Planters, A Florida Corporation, and Insula Property Management, LLC, A Florida Corporation, 40 Fla. L. Weekly D951a (Fla. 1st DCA 2015), the First District Court of Appeal addressed the issue of whether an invitee could overcome a landowner’s motion for summary judgment in a negligence action for a duty to maintain the premises in a reasonably safe condition, when the condition that caused the invitees injury was open and obvious.[1]

In Denson, the Plaintiff, Bernadette Denson, filed a negligence action against Defendants, SM-Planters Walk LLC (“SM-Planters”)[2], d/b/a Planters Walk Apartments and Insula Property Management, LLC, (“Insula”)[3], after she slipped and fell down a stairway at the defendants’ apartment complex after she had been invited there. Plaintiff argued that the Defendants failed to remove or remedy a slick step[4], and as a result, she slipped and fell. Plaintiff alleged that Defendants (1) breached the duty to warn of a concealed peril upon the premises; and (2) the duty to maintain the premises in a reasonably safe condition.

Defendants presented deposition testimony from their maintenance supervisor as evidence that prior to the slip and fall, the Defendants’ maintenance supervisor purchased paint[5] and an anti-skid additive to ensure that the premises was kept safe for its guests.[6] Plaintiff countered that evidence, and provided a label from the anti-skid additive purchased by Defendants, with instructions that required one pouch of additive be mixed per gallon of finished product. Plaintiff argued that the receipts that Defendants provided showed that Defendants did not mix the paint properly, and thus, breached the duty to maintain the premises in a reasonably safe condition.

The trial court granted the motion for summary judgment on the grounds that there was no genuine issue of material fact as to the Defendants’ duty to warn of a concealed peril upon the premises, nor, the duty to maintain the premises in a reasonably safe condition.

The First District affirmed the trial court’s order granting summary judgment as to the Defendants’ duty to warn of a concealed danger, but reversed and remanded as to the duty to maintain the premises in a reasonably safe condition. The First District reasoned that although the slick step was open and obvious to visitors, the Defendant still must maintain reasonably safe conditions at the premises. The First District found that the deposition testimony from the Defendants’ employee, along with the receipts presented by Defendants showing the quantity of material purchased, and the label from the anti-skid additive presented by Plaintiff, created a factual dispute as to whether Defendants maintained their premises in a reasonably safe condition. The Court relied upon the holding in Damper v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012), that “the open and obvious nature of a hazard may discharge a landowner’s duty to warn, but it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition.

 

 

[1] “A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases…. If the record reflects even a possibility of a material issue of fact, then summary judgment must be denied.” Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1286 (Fla. 1st DCA 2004).

[2] SM-Planters was the property owner of the apartment complex.

[3] Insula was the property manager of the apartment complex.

[4] Plaintiff alleged that defendants failed to “timely remove or remedy the slick and glossy surface of the stair.”

[5] Defendants presented four receipts from Home Depot that reflected purchases of four units of anti-skid additive and ten gallons of product (six gallons of paint, three gallons of concrete primer and one gallon of concrete stain.

[6] Defendants’ maintenance supervisor testified in a deposition that he had painted the stairs prior to the slip and fall, after purchasing paint from Home Depot for concrete and exteriors that he believed to be “skid resistant.”

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