Jeffrey P. Gale, P.A. // Premises Liability: The “Open and Obvious” Defense and Its Limits

In Florida, owners and occupiers of property owe a duty to invitees—such as shoppers at a mall or residents of a condominium—to warn of latent or concealed dangers that they knew about or should have known about. Krol v. City of Orlando, 778 So. 2d 492 (Fla. 5th DCA 2001).

However, not all hazardous conditions trigger a duty to warn. Courts have repeatedly found that certain commonplace conditions—such as uneven floor levels and sidewalk curbs—are open and obvious, and therefore do not qualify as concealed dangers. For example:

• In Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952), the Florida Supreme Court held that uneven floor levels in public areas are not latent or hidden hazards.
• In Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992), a curb used for tram boarding was deemed not to be a hidden danger.
• Similarly, in Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990), a six-inch sidewalk curb at a mall was not considered a latent or concealed risk.

These cases reflect the application of the “obvious danger doctrine”—a legal principle that allows landowners to assume that an invitee will perceive obvious risks through ordinary use of their senses. Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990).

The Limitations of the “Open and Obvious” Defense

Critically, the fact that a condition is open and obvious does not automatically relieve a landowner of liability. Florida courts recognize a concurrent duty to maintain premises in a reasonably safe condition. As stated in De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013), “the landowner’s duty to maintain the premises in a reasonably safe condition is not discharged merely because the danger is open and obvious.”

There are two relevant legal categories here:

1. Conditions that are so obvious and not inherently dangerous that no duty arises because a reasonably prudent person would avoid them without warning. See Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) (holding that a difference in floor levels, even in dim lighting, was not inherently dangerous).
2. Conditions that are dangerous yet obvious, where the landowner may still escape liability—unless the landowner should reasonably foresee that invitees might still encounter the hazard and be harmed. See Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1311 (Fla. 1986); Etheredge v. Walt Disney World Co., 999 So. 2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So. 2d 1233, 1234 (Fla. 5th DCA 2006).

Case Example: Cracked Sidewalk

The case of Middleton v. Don Asher & Associates, 262 So. 3d 870 (Fla. 5th DCA 2019), illustrates this principle well. There, the plaintiff tripped over an uneven sidewalk joint at a condominium. Although the trial court granted summary judgment on the basis that the condition was open and obvious, the appellate court reversed, holding that a factual issue remained as to whether the property owner should have anticipated that residents would still use the sidewalk and potentially be harmed—despite the obviousness of the defect.

A Recent Case from Our Office

We were recently retained to represent a woman who tripped in a pothole on a condominium sidewalk, falling face-first onto the pavement and suffering significant dental injuries. The fall occurred after sunset in a poorly lit area, and she was unfamiliar with the premises. While the pothole may have been visible during daylight, it was not readily observable at night. Even assuming the condition was open and obvious, the property owner could have reasonably foreseen that a resident or guest might not see the hazard in low lighting and suffer injury.

The Takeaway

Premises liability cases are highly fact-specific. Courts consider numerous factors: visibility, lighting conditions, foreseeability, prior incidents, and whether reasonable steps were taken to make the area safe. The presence of an “open and obvious” condition is not necessarily a complete defense—it merely shifts the focus to whether the property owner should have reasonably anticipated harm.

If you or someone you know has been injured on someone else’s property, it is essential to act quickly to preserve evidence, document the scene, and understand your legal rights. A prompt and thorough investigation can often make the difference between a viable claim and a lost opportunity.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.