The liability of a property owner for a condition which is open and obvious

“Slip and Fall” and “Trip and Fall” lawsuits are very controversial.  There have been many investigative reports where people are caught on camera faking or staging a fall in order to file a claim against an innocent property owner.  But, for as many of these fraudulent claims that exist, there are far more legitimate slip and fall cases where property owners fail to maintain their property safely.  This poor maintenance oftentimes leads to serious injuries when people slip and fall.


One of the most common defenses asserted by property owners is that, despite their own negligence in failing to repair known dangerous conditions, the condition that causes the fall is so “open and obvious” that the injured person should have seen it and avoided it.  Defense lawyers and property owners argue that because the condition which caused the fall was in plain sight, the property owner should not be responsible for the injuries, even though the property owner allowed his property to deteriorate.  Instead of these cases being decided by a jury, the property owners ask the judge to dismiss the case for the plaintiff’s failure to appreciate the open and obvious defect in the property.


In a recent case from the Third District Court of Appeals in Miami, the Court held that dismissing Florida slip and fall lawsuits on these grounds is improper.  Instead, the Court held that the deterimination of fault under these circumstances should be made by a jury and not a judge.


In Weider v King Cole Condo Association, the plaintiff was walking in a common area in her apartment complex.  The common area carpet had recently been cleaned and was still damp.  The Plaintiff testified that on prior occasions, when the carpet was cleaned, the carpet would buckle and raise in certain areas.  While she was able to avoid the tripping hazard on other occaisons, this time she tripped on the buckled carpet and suffered injuries.  The condo association moved for summary judgment (meaning they asked the judge to throw the case out before it got to the jury).  The condo argued that since the Plaintiff knew that the condition existed and had seen and avoided it before, she should not be able to hold the condo association responsible for her injuries.  The trial judge agreed with the condo association and dismissed the case.  However, on appeal, the Third District reversed the trial judge, holding that a property owner is not entitled to judgment as a matter of law just because the plaintiff should have appreciated a dangerous condition.  Instead, the appellate court held that the determination of fault is the job of the jury.


In Florida, we have the “comparative fault” rule.  This means that a jury is permitted to assign blame to multiple parties, including the plaintiff.  When the jury receives the case, they are asked to determine whether the defendant is at fault and whether the plaintiff is at fault.  If the jury finds that both parties are at fault, the jury is asked to assign a percentage of fault to each party.  If the plaintiff is assigned a percentage of fault, the damages are reduced by that percentage.  For example, if the jury finds that the plaintiff suffered $100,000 worth of damages and also finds that the plaintiff was 50% at fault, the defendant only needs to pay half of the damages, or $50,000.


In the Wieder case, the Third District made the proper decision.  Certainly, I am not advocating for the plaintiff to be free from blame in every slip and fall case.  But, it is proper to allow the jury to make that decision.  It is entirely possible that, after hearing all of the evidence, the jury will find that the plaintiff is 100% to blame.  If that happens, the defendant will win the case.  But in our system, we need to make sure that cases that contain factual disputes are decided by a jury.


The Leto Law Firm is a Miami personal injury law firm specializing in Miami wrongful death cases and Miami traumatic brain injury cases.

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