dangerous condition - Jeffrey P. Gale, P.A.

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

Jeffrey P. Gale, P.A. — Mon, 23 Jun 2025 18:33:18 GMT

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:

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).
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.

Jeffrey P. Gale, P.A. /// Premises Liability: Landlord’s Post-possession Duty to Repair Dangerous Defective Conditions

Jeffrey P. Gale, P.A. — Fri, 18 Apr 2025 19:48:43 GMT

Our law firm receives a steady stream of inquiries from tenants, mostly residential, regarding dangerous conditions inside of their units. If someone has been injured, we ask if the landlord or maintenance company had notice of the dangerous condition in advance of the incident. If nobody has yet been injured, we instruct the callers to notify their landlord and maintenance company in writing (email will do).

The reason for this is because landlords and maintenance companies have a continuing duty to repair dangerous conditions upon notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981 and § 83.51(1), Fla. Stat. (2021).

In Perez v. Belmont at Ryals Chase Condo, 393 So. 3d 859 (Fla. 2nd DCA 2024), the tenant was injured by falling on loose tiles inside his unit. On two occasions, his wife made complaints about the loose tile to the property management company and its maintenance supervisor. Nevertheless, in reliance on an appellate case in which the landlord was not notified in advance of the dangerous condition (a loose and unsecured towel rack, which was used by the tenant to support herself while exiting a shower), Youngblood v. Pasadena at Pembroke Lakes South, Ltd., 882 So. 2d 1097 (Fla. 4th DCA 2004), the trial judge granted summary judgment for the defendants, the building owner and maintenance company, effectively throwing the case out of court. In essence, the trial judge decided that because the tenant knew of the open and obvious condition, the landlord and maintenance company did not have a duty to eliminate the danger. The Second District Court of Appeal disagreed with the trial judge, reversing the summary judgment.

Another key to the appellate decision in the Perez case is that the condition was considered inherently dangerous. In Menendez v. Palms West Condominium Association, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999), a tenant was shot in the head by an unknown assailant after he opened the front door to answer a knock. In his lawsuit for damages, the tenant alleged that the defendants were negligent for failing to install a viewing device in the front door of the apartment. In finding that “[t]here is no evidence that any specific person had any actual or constructive knowledge of any fact that arguably would make the incident described in [the complaint] reasonably foreseeable,” the trial judge granted summary judgment for the defendants. In essence, the trial court had decided that the lack of a viewing device was not inherently dangerous. The First District Court of Appeal agreed.

The landlord’s duty to a residential tenant: “A landlord’s duty to its residential tenant can be properly divided into a prepossession duty and postpossession duty. Before allowing a tenant to take possession of the residence, a landlord “has a duty to reasonably inspect the premises … and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant.” Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981). “After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant.” Id.; see also § 83.51(1), Fla. Stat. (2021).” Perez at 861.

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

Jeffrey P. Gale, P.A. // Liability (or not) for Open & Obvious Dangerous Conditions

Jeffrey P. Gale, P.A. — Fri, 23 Feb 2024 21:46:50 GMT

Owners and occupiers of premises have a duty to warn invitees (e.g., shoppers in mall, residents of condominium) of latent or concealed perils of which they know or should know. Krol v. City of Orlando, 778 So. 2d 492 (Fla. 5th DCA 2001).

Conditions such as uneven floor levels and sidewalk curbs have been found by Florida courts to be open and obvious. E.g., Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not “concealed or latent danger”).

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their senses. See Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). This doctrine is counterbalanced by the principle that a landowner’s duty to maintain his premises in a reasonably safe condition is not discharged by the dangerous condition being open and obvious. De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013).

Some conditions are so obvious and not inherently dangerous that a failure to maintain the premises in a reasonably safe condition will not give rise to liability. See, e.g., Schoen v. Gilbert, 436 So.2d 75 (Fla.1983) (holding difference in floor levels is not inherently dangerous condition, even in dim lighting, so as to constitute failure to use due care for safety of person invited to premises). Other conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. See, e.g., Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla.1986). In these circumstances, the landowner is absolved of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness. Id.; 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).

Middleton v. Don Asher & Associates, 262 So. 3d 870 (Fla. 5th DCA 2019), is a trip and fall case involving a cracked and uneven sidewalk. The trial judge granted summary judgment for the Appellees based on the argument that they did not have a duty to warn because the uneven joint between the two concrete sidewalk segments was open and obvious. On appeal, the summary judgment was reversed and the cause was remanded for further proceedings. The DCA agreed with Defendant that, because the condition was open and obvious, it did not have a duty to warn. However, it felt that “a factual issue remained as to whether Appellees should have anticipated that, notwithstanding that the condition was obvious, condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, and could be harmed thereby.” Id at 873.

We have recently been asked to handle a case for a woman who fell to the ground and struck her face on the pavement after twisting her ankle in a pothole in a sidewalk. She now requires extensive dental work. The incident happened on private property, a condominium, after sunset under poorly lit conditions. She was unfamiar with the area and did not see the pothole. While the condition may have been open and obvious in daylight hours, it was not at night. Even if it had been O & O, it was foreseeable to the landowner that someone might nevertheless not see the dangerous condition and suffer a fall.

Premises liability cases are exceedingly fact-specific. A multitude of factors must be taken into account to determine the viability of a case. It is also important to take quick action to preserve evidence.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.