PERSONAL INJURY CORNER
Premises Liability
TED BABBITT
Conflicting opinions exist regarding a landowner ’ s duty to warn concerning an open and obvious danger on its premises . The recent case of Pratus vs . Marzucco ’ s Construction & Coatings , Inc .; 46 FLW D186a ( Second DCA January 15 , 2021 ) involved the reversal of a summary judgment awarded to a landowner with respect to a suit claiming negligence for allowing a drain to be uncovered which resulted in an injury when the Plaintiff stepped into the open drain .
Plaintiff was an employee of an electrical subcontractor on a garage construction project overseen by the Defendant general contractor . The evidence established that the drain in question was sometimes covered and sometimes not covered and when not covered there was usually a warning tape preventing anyone from stepping into the open drain .
It was without question that the Plaintiff had observed the subject drain both covered and uncovered at various times during his work at the site . On the particular day in question the warning tape had been removed from the door in front of the drain and when the Plaintiff opened the door he testified that his vision was obscured by dust created by work on the construction site . He therefore opened the door without realizing that the drain was uncovered and stepped into it causing severe injury .
The trial court granted summary judgment to the Defendant holding that it was not liable to the Plaintiff as a matter of law because the drain was open and obvious . The appellate court reversed “ The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party , unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious .”
While it was unquestioned that Plaintiff knew of the existence of the drain the Court held that the test of the obvious danger doctrine is not whether the object is obvious but rather whether the dangerous condition is obvious . It was not the drain that was a danger but the fact that the drain was uncovered that made it dangerous . The court held that there was no evidence that the Plaintiff knew the drain was uncovered on the day of the accident and that it would not have been unreasonable for him to assume that it was covered because the caution tape had been removed from the door leading to the drain . Furthermore the court held that even if the danger was open and obvious the Defendant still had a duty to maintain the premises in a reasonably safe condition , if it could anticipate the harm to the Plaintiff as the result of the uncovered drain . The court found that fact questions existed as to whether the Defendant should have anticipated that upon opening the door leading to the drain that the Plaintiff would be distracted by the dust caused by the Defendant ’ s concrete grinding work generated by the construction rendering the Plaintiff unable to avoid stepping into the uncovered drain .
The trial court erroneously concluded that the Defendant ’ s duty to maintain the premises in a reasonably safe condition was discharged because the Plaintiff knew of the drain and failed to avoid it . To the contrary , Plaintiff ’ s knowledge merely created an issue of fact on the question of comparative negligence and did not justify the granting of a summary judgment .
Interestingly the Court , in rendering its decision , considered that the test of granting a summary judgment included the responsibility of the non-movant to prove the non-existence of any genuine issue of material fact and that all reasonable inferences are drawn in favor of the nonmoving party and if the record raised even the slightest doubt that an issue might exist , summary judgement would be improper . The Court relied on the law that has existed in Florida for many years that the possibility of any issue of fact precludes the granting of a summary judgment . In light of the recent adoption by the Florida Supreme Court of the Federal Rule with respect to summary judgment it may be that the underpinning of this decision is anachronistic since many of the Court ’ s assumptions no longer apply under the federal standard .
Theodore Babbitt , Attorney-Shareholder , Florida Bar Board Certified Trial Lawyer at Searcy Denney Scarola Barnhart & Shipley , P . A . He can be reached at Tbabbitt @ searcylaw . com .
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PBCBA BAR BULLETIN 20