Florida Premises Liability Law – Comparative Fault and Open & Obvious Doctrine

Florida premises liability law is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises. It is a negligence-based system, meaning that responsibility is apportioned in accordance with fault. This is known as the concept of comparative fault. See Florida Statute 768.81, entitled Comparative fault.

Under this system, the jury is charged with determing fault among the plaintiff, the defendant, and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury’s] verdict.

A jury verdict is not the same thing as a final judgment. Only judges render final judgments.

In rendering final judgments, judges consider a variety of factors. The jury’s findings regarding fault and damages are two of the most important factors.

A simple example, without consideration of any factors other than the jury verdict, will illustrate how the system works: Assume that Mr. Jones, a visitor to a friend’s condominium, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and he is transported to the hospital. The building and lot are controlled by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and caused many other accidents. Unable to settle his case out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury.

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be barred from any recovery if it was determined that he or she was at fault in any way, even only 1%. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.

Is there anything in current day Florida premises liability law similar to the doctrine of contributory fault? Sort of, kind of, not really. However, there is a principle, known as the Open and Obvious Doctrine, that can bar the plaintiff from recovering even where the defendant may be at fault.

The Open and Obvious Doctrine provides that some injury-causing conditions are simply so open and obvious that they can be held as a matter of law not to give rise to liability as dangerous conditions. Examples of such conditions include a six-foot diameter planter, Taylor v. Universal City Property Management, 779 So.2d 621 (Fla. 5th DCA 2001); a landscaped area surrounded by large planks next to a walkway, City of Melbourne v. Dunn, 841 So.2d 504 (Fla. App., 2003); raised concrete at a gas station at 2:30 p.m. on a dry and sunny day in the open parking lot where nothing obstructed a view of the surface of the parking lot, Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. App. 5 Dist., 1990).

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

Fortunately, in most premises liability cases, the question of liability is decided by the jury rather than the court. Courts generally refrain from ruling as a matter of law that a condition was “glaringly open and obvious.”

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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.

Where you have been seriously injured in a premises liability accident, we encourage you to seek legal advice about the merit of your case. Contact us today to arrange a free, confidential consultation to discuss your case.