Duty to Warn of Dangerous Conditions in Florida

Posted By on January 21, 2016

What Is A Dangerous Condition In A Slip And Fall Case? Are Things That Can’t Be Seen A Dangerous Condition? What About Dangers That Are Easily Seen And Obvious?

In Florida, when someone is hurt in a slip and fall accident, the type of law that applies will depend upon the place where the victim got hurt.  Meaning, for example, if a victim gets hurt at a business establishment of some kind (like Walmart or other big box store), then Florida’s premises liability law may apply.  These claims are so prevalent here, that the Florida Legislature passed specific statutes related to businesses and slip and fall claims.

Florida’s Slip and Fall Statute: “Dangerous Condition” Under Florida Statute 768.0755

The specific statutory law that applies to slip and fall victims hurt at a business location (when the accident is caused by a substance on the floor) is Florida Statute 768.0755, which is shown below.  Notice the highlighted language here:

Premises liability for transitory foreign substances in a business establishment.—

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

We have discussed the importance of this statute to accident victims in Florida and how they have to prove their case in compliance with its language in several different posts. These include:

Today, we are delving into a different section of that statute and focusing on the phrase “dangerous condition.

What Is A Dangerous Condition In A Florida Slip and Fall Accident?

The term “dangerous condition” has been defined through years of Florida case law. This term is so important that we think that accident victims need to understand what it means in everyday language. And, we think it’s equally important to be aware of the issues that spring from this language related to a Florida slip and fall, like:

  • Does it matter if it was open and obvious to everyone around at this time of the accident? If it was easy to see, then does the business escape liability?
  • What about if it was hidden, and no one could see it? Does this impact the business’ responsibility for what happened?

 

Thepeel

A banana peel on the floor is a dangerous condition, right?

Dangerous Condition in Everyday Language

Simply put, a dangerous condition is something that exists on property that might cause someone to get hurt.

Warning! What Duty Does A Business Have To Its Customers?

When a business owner knows about a dangerous condition on their business premises, something that might cause someone to slip and fall down, then that business has a duty to warn of that danger. Under the law, the business has a duty to its customers to notify them of the problem and to warn them that there’s a danger (by using, for example, a wet floor sign or warning tape). That’s a responsibility that a business has on when they open their doors to people and invite them inside, in order to profit from them.

When Wont A Business Be Held Liable?

However, that duty isn’t without its limits. Under Florida law, if the business takes reasonable steps to protect its customers, then it will not be held liable when someone falls and gets hurt. For example:

1. Adequate Warning.

A sad example here: a worker at a citrus processing plant was killed when he cut into a tank filled with explosive chemicals. The plant owner had warned everyone about the dangers of the tanks and no one disputed that the owner had taken steps to tell all the project sub-contractors, independent contractors, etc., that working with the tanks was dangerous. So, the plant owner was held to have fulfilled its duty to warn of the risk and wasn’t liable for what happened. Indian River Foods Inc. v. Braswell, 660 So. 2d 1093 (Fla. Dist. Ct. App. 4th Dist. 1995).

2. The Accident Victim Is Aware Of The Danger.

Here, for example, a Florida Hotel does not have a duty to warn swimmers of the natural dangers of swimming in the Atlantic Ocean, even if they were hidden from view, as long as the hotel business hasn’t blocked off that section of the beach or assumed a particular responsibility for it as part of offerings to its guests. Poleyeff v. Seville Beach Hotel Corp., 782 So. 2d 422 (Fla. Dist. Ct. App. 3d Dist. 2001)

3. The Condition Is Determined Not To Be Dangerous.

For instance, in K.G. By and Through Grajeda v. Winter Springs Community Evangelical Congregational Church, 509 So. 2d 384 (Fla. Dist. Ct. App. 5th Dist. 1987), the court ruled that a brick border surrounding a tree is not a dangerous condition meriting a duty to warn folk of the risk of injury.

Duty to Warn About Hidden Conditions That Cannot Be Seen

What are hidden conditions that create a duty on a Florida business to warn its customers of the condition? It’s a condition that a business owner or operator knows about, or should have know about, something that a  customer might not know about, even if the danger is hidden from view (“hidden conditions” are also know as “latent conditions”). They are conditions that a customer reasonably isn’t going to know about as he or she is spending time at a hotel, restaurant, or shopping mall.

What’s reasonable here?

If a “reasonable and prudent” customer acting in a careful manner would not be aware of it, then it’s a hidden or latent condition. The customer wouldn’t be able to see it, or smell it, or otherwise have some idea that there was an immediate risk of harm.

Meanwhile, as part of running and maintaining a business establishment, a reasonable and prudent business owner should know about hidden conditions on their property.

Under Florida law, business has two different duties to its customers: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of “concealed perils.” Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012).

The Case of the Slick, Soapy Stuff at the Service Station: a Hidden Danger

An example of a hidden condition that caused a slip and fall accident happened in Simpson v. Simpson, 232 So. 2d 249 (Fla. Dist. Ct. App. 1970). There, William Simpson pulled into a Florida service station for gas. After filing his gas tank, he was replacing the pump nozzle when “both his feet slipped out from under him” and he fell flat on the concrete surface, hitting his head on the gas pump island curb.

At the time that he was injured, the concrete area where the gas pumps were located was wet. That was easy enough to see. However, this wasn’t just water sprayed on the concrete to clean it. This wet surface was caused by a soapy solution that had made its way to the gas pump area from where the service station employees were washing cars.

It was held by the court that the soap solution had made the water “slick and slippery” and that this was dangerous — but it was hidden. It was “not visible” to the accident victim, who slipped and fell on the slippery, soapy water. The service station had a duty to warn its customers about the slick soapy stuff.

No Duty to Warn About Obvious and Easily Seen Conditions

Normally, there is no duty to warn of obvious and apparent dangers. If the danger is plain to see by everyone, then the business has no special duty to warn its customers about it. The law assumes that the customer can understand the risk of getting hurt because the danger is right there in front of them.

This is called an “open and obvious condition” in legal terms. An example? In Kagan v. Eisenstadt, 98 So. 2d 370, 372 (Fla. 3d DCA 1957), it was an open and obvious danger with no duty to warn by the property owner when an experienced lumber salesman fell on an open stairwell in a multi-level home that was being built, since it is an obvious danger he would understand as a part of his job that a partially constructed stairwell was obviously dangerous.

Contributory Negligence Defense in an Open and Obvious Dangerous Condition

Simply put, if someone gets hurt in a slip and fall involving an open and obvious dangerous condition, then they can expect the business to point the finger at them.

The business will argue it’s not their fault that the accident happened. It was the accident victim’s own negligence that caused their harm. Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005).

The Case of the Hump in the Store’s Floor Mat: An Open and Obvious Danger

As an example, in the case of of DeCruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013), there was a slip and fall on a floor mat. The mat had a hump in it and the customer slipped and fell on it.

It seems that Paulette and Linden Haymer were buying groceries at their local Bravo grocery store. When they entered the store, they didn’t notice if there was a mat on the floor or not.  However, they did know that a floor mat was usually there.  When they finished buying their stuff, Mr. Haymer pushed their cart out the door and had to wait for the store employee to lay down the floor mat right outside the front door.  He noticed that it wasn’t flat on the ground, but “humped.” He stepped over the humps and went on his way.

Mrs. Haymer came out of the store a little later.  She had a bag with two soda bottles in it.  She tripped on the store’s mat and fell down.  Her claim was denied so she sued for injury damages.  The Bravo defense was that it was an open and obvious danger and they weren’t liable.

There was testimony that an employee had laid down the mat and failed to make sure it was totally flat on the floor. There was also testimony before the court that the floor mat was placed in the single entrance to the store.  The clientele had no choice but to walk over that floor mat in order to enter or exit the store.

The Florida court held that the “hump” in the floor mat was an open and obvious dangerous condition. The case was returned to the jury (unless the parties could settle) for the determination of contributory negligence of the accident victim, Mrs. Haymer, for tripping and falling over the hump in the floor mat.

Note:  For more information on slip and fall accidents involving the LACK of floor mats and how to prove those kinds of cases, see our earlier post, “I Slipped And Fell On A Wet Restaurant Floor – It Was Raining, No Floor Mat: Do I Have A Case?”

Florida Injury Lawyer and The Duty to Warn in a Slip and Fall Accident Claim

If you have been hurt in a slip and fall accident on business property, then it’s vital that you investigate your legal rights. In most situations, you can expect a fight — and that the business will be very ready to claim that the accident was your fault, or that they had no duty to warn you if a dangerous condition was present.

A good piece of advice if you have been harmed by a slip and fall, is to at least speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Related:

What do you need to prove in a Florida slip and fall under Florida’s premises liability law?

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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