landowner liability - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. /// Florida Premises Liability Law – Open & Obvious and Building Code Violations

Jeffrey P. Gale, P.A. — Tue, 31 Mar 2026 18:17:23 GMT

The open and obvious doctrine, as applied in Florida premises liability cases, has become a vexatious legal doctrine that is too often used to support summary judgment despite longstanding case law holding that the obvious nature of a hazard does not necessarily discharge a landowner’s duty to maintain reasonably safe premises. That is precisely what occurred in Sutley v. Ocean Trillium Suites, Inc., 422 So. 3d 1241 (Fla. 5th DCA 2025), where the trial court granted summary judgment based on the open and obvious nature of the condition, effectively allowing the obviousness of the hazard to eliminate the landowner’s duty rather than submitting issues of comparative fault and foreseeability to the jury. The Fifth District Court of Appeal reversed and remanded the trial court’s ruling.

Under Florida law, property owners and those in possession or control of premises owe invitees a duty to maintain the premises in a reasonably safe condition and to correct or warn of dangerous conditions of which they knew or should have known. See Frazier v. Panera, LLC, 367 So. 3d 565, 568 (Fla. 5th DCA 2023); Parker v. Shelmar Prop. Owner’s Ass’n, 274 So. 3d 1219, 1221 (Fla. 5th DCA 2019); Trainor v. PNC Bank, Nat’l Ass’n, 211 So. 3d 366, 368 (Fla. 5th DCA 2017). Florida’s open and obvious doctrine is a principle in premises liability law that can limit or eliminate a property owner’s liability when a dangerous condition is so visible and apparent that a reasonable person would notice and avoid it. However, an open and obvious condition does not automatically eliminate the landowner’s duty, but it can affect duty, breach, and comparative negligence depending on the circumstances.

While application of the open and obvious doctrine by trial courts to bar claims against defendants has been upheld on appeal in some Florida cases, the preferred procedure is to present the issue to the jury, as the obviousness of a condition typically implicates comparative negligence rather than eliminating a landowner’s duty as a matter of law.

In Sutley, the alleged dangerous condition consisted of an abrupt change in elevation between the sidewalk and the ramp leading to the Appellee’s pool area. Appellant presented expert testimony that the condition constituted a building code violation. The violation of the building code constituted prima facie evidence of negligence, reflecting a breach of the duty to maintain reasonably safe premises and sufficient to defeat summary judgment. See Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715, 719 (Fla. 1st DCA 2021) (reversing summary judgment where hotel’s violation of building code provisions constituted prima facie evidence of negligence based on a breach of the hotel’s duty to maintain its premises in a safe condition); Parker, 274 So. 3d at 1221 (holding that summary judgment was improper where plaintiff’s expert opined that the placement of a wheel stop near defendant’s building constituted a dangerous condition in violation of the Florida Building Code, which constituted prima facie evidence of negligence); Cruz v. Wal-Mart Stores E., LP, 268 So. 3d 796, 798-800 (Fla. 4th DCA 2019) (holding that expert opinion that a raised manhole cover was a dangerous condition in violation of the Broward County Code was sufficient to defeat defendant’s motion for summary judgment); Doering v. Vills. Operating Co., 153 So. 3d 417, 418 (Fla. 5th DCA 2014) (reversing summary judgment where evidence was presented that a warped board on defendant’s deck violated a building code provision requiring any elevation changes over a quarter inch to be beveled); Holland v. Baguette, Inc., 540 So. 2d 197, 198 (Fla. 3d DCA 1989) (reversing summary judgment where the affidavit of plaintiff’s engineer supported the allegation that a step over was built in violation of the South Florida Building Code, which, if proven, would constitute prima facie evidence of negligence). Accordingly, we reverse and remand for further proceedings.

In reversing the trial court, the appellate court held that the jury should determine (1) whether the defendant breached its duty to maintain the premises in a reasonably safe condition, (2) whether the condition was so open and obvious as to eliminate the property owner’s duty, and (3) whether the dangerous condition was the proximate cause of the Appellant’s injuries.

In personal injury cases, summary judgment on liability is seldom appropriate because these cases typically present genuine issues of material fact that are exclusively for the trier of fact, usually a jury, to decide.

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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: 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. // 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.