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

Jeffrey P. Gale, P.A. /// Comparative Fault and the Open & Obvious Doctrine

Jeffrey P. Gale, P.A. — Wed, 08 Oct 2025 20:08:25 GMT

Florida premises liability law governs the responsibility of those who possess or control land for injuries sustained by individuals on their property. It is a negligence-based system, meaning that liability is determined according to the degree of fault. This principle is known as comparative fault, codified in Florida Statute § 768.81, entitled Comparative Fault.

Under this system, the jury determines the percentage of fault attributable to the plaintiff, the defendant, and even nonparties who may have contributed to the injury. The jury also assigns a monetary value to the plaintiff’s damages. Together, these findings constitute the jury’s verdict.

A jury verdict is not the same as a final judgment. Only judges render final judgments, and in doing so, they consider several factors—two of the most important being the jury’s findings on fault and damages.

Consider a simple example:

Mr. Jones, visiting a friend’s condominium, trips over a large crack in a poorly lit underground parking lot and falls, suffering a severe laceration and a concussion. The lot, owned by a condominium association and managed by a maintenance company, had a long history of accidents caused by the same crack. After failing to reach a settlement, Mr. Jones sues both the association and the management company for negligence.

The jury returns a verdict of $500,000 in damages, apportioning fault 75% to the defendants (the association and management company) and 25% to Mr. Jones. Applying Florida’s comparative fault rule, the final judgment for Mr. Jones would be $375,000—reflecting 75% of the total damages awarded.

From Contributory to Comparative Fault

Before 1973, Florida followed the doctrine of contributory fault, under which a plaintiff who was even 1% at fault was barred from any recovery. In our example, Mr. Jones—though only 25% at fault—would have recovered nothing under that old rule.

Is there anything similar to contributory fault in modern Florida law? Sort of, but not quite. There remains a principle that can, in certain circumstances, prevent a plaintiff from recovering even when the defendant bears some responsibility: the Open and Obvious Doctrine.

The Open and Obvious Doctrine

The Open and Obvious Doctrine holds that certain conditions are so open and obvious that, as a matter of law, they cannot be considered dangerous, and therefore do not give rise to liability. Examples include:

A six-foot-diameter planter (Taylor v. Universal City Property Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001));
A landscaped area surrounded by large planks adjacent to a walkway (City of Melbourne v. Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003));
A raised concrete surface at a gas station, visible in broad daylight (Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990)).

The critical language in these cases is that the condition must be “glaringly open and obvious.”

Fortunately for most plaintiffs, Florida courts are generally reluctant to decide—as a matter of law—that a condition meets this standard. In most premises liability cases, the issue of liability remains a question for the jury.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation 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.

Jeffrey P. Gale, P.A. // Florida Premises Liability Law — Tripping on Tree Roots

Jeffrey P. Gale, P.A. — Fri, 27 Jun 2025 15:32:22 GMT

We’ve all done it—cut across a landscaped area to save a few steps on the way from one public area to another. Most of the time, it’s harmless. But when someone trips and falls, the question arises: Who is responsible? Can the landowner be held liable? Or does the law essentially say, “cross at your own risk”?

As is often the case in the law, it depends.

Duties of Landowners

Under Florida law, landowners owe two basic duties to invitees—such as shoppers, tenants, or guests:

To maintain the premises in a reasonably safe condition; and
To warn of hidden dangers the owner knows or should know about, which are not obvious to the invitee and cannot be discovered through the exercise of reasonable care.

See Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005).

However, these duties are not without limits. One major limiting principle is the open and obvious danger doctrine.

The Open and Obvious Danger Doctrine

Some conditions—such as a clearly visible curb or a decorative rock—are considered so open and obvious that they are not deemed dangerous as a matter of law. Florida courts have repeatedly held that if a danger is open and obvious and not inherently hazardous, a property owner may not be liable even if someone is injured.

See Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012).

But the doctrine has an important exception:

“[T]he owner or possessor [may still be liable] if they should anticipate the harm despite the fact that the dangerous condition is open and obvious.”
— Aaron, 908 So. 2d at 576–77.

This exception recognizes that even obvious hazards can present an unreasonable risk under certain circumstances—such as when invitees are likely to encounter the danger out of necessity or because the risk is hard to avoid.

The Wolf Case: An Example with Limits

A leading case on the issue is Wolf v. Sam’s East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014). There, the plaintiff tripped over a tree root while walking through a landscaped area with dirt, trees, and mulch. The area had concrete walkways nearby, including one just a few feet from where the plaintiff had parked. Despite knowing about the walkway, he chose to cut across the landscaping instead.

The court sided with the property owner, concluding that tree roots in landscaped areas are not inherently dangerous and were obvious enough that no warning or corrective action was required. The court emphasized that the plaintiff could have avoided the hazard entirely by using the designated walkway.

Importantly, the court cited prior precedent:

“Landscaping features are generally found not to constitute a dangerous condition as a matter of law. A landowner has no liability for falls which occur when invitees walk on surfaces not designed for walking, such as planting beds.”
— Dampier, 82 So. 3d at 204.

However, the court’s reasoning leaves the door open: its holding hinged heavily on the availability—and proximity—of a safe alternative route.

The principle discussed in Dampier finds a practical application in the recent decision of Morris v. Capital City Bank, No. 1D2022-1365 (Fla. 1st DCA 2025). In Morris, a woman slipped and fell on an oil slick while approaching an ATM that was designed exclusively for vehicular use. Notably, there were no sidewalks, signage, or other indicators suggesting the ATM was intended for pedestrian access.

The First District Court of Appeal held that the bank’s duty to maintain its premises in a reasonably safe condition extended only to the premises’ intended use. Because the plaintiff was using the property in a manner not contemplated by the bank—namely, as a pedestrian in a drive-through area—the court found that no legal duty was owed under these circumstances. Absent a duty, there could be no breach, and summary judgment under Florida Rule of Civil Procedure 1.510 was properly entered in favor of the defendant.

Our Case: A Different Set of Facts

Our firm handled a case with facts distinguishing it from Wolf.

Our client parked in a lot bordered by 125 yards of continuous landscaping—with no designated crossing paths anywhere nearby. She took the most direct and well-worn route through the landscaping, which had clearly been used by pedestrians for years. While crossing at night, she tripped on a tree root and suffered serious injuries.

Unlike in Wolf, our client had no nearby alternative for crossing. The absence of pedestrian walkways created a foreseeable risk that people would traverse the landscaping, especially at night. Under these circumstances, we will argue that the property owner should have anticipated the harm—even though the root may have been “obvious” in the daylight.

Conclusion

Florida premises liability law does not impose a blanket rule that excuses landowners whenever an injury occurs on landscaping. While some hazards may be considered open and obvious, each case turns on its facts—including whether the injured party had a reasonable alternative, the foreseeability of pedestrian traffic, and whether the owner took reasonable steps to address the danger.

If you’ve been injured in a fall caused by a property defect or hazard, contact our office to discuss your rights. A legal evaluation of the surrounding circumstances can make all the difference.

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Contact us toll free at 866-785-GALE 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.

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.

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.