Potholes and Florida Personal Injury Law

pothole.jpgMust a landowner warn a visitor to the property of an open and obvious pothole? Probably not. Does a landowner have a duty to repair the pothole? Probably.

In Burton v. MDC PGA Plaza Corp., 78 So.3d 732 (Fla. 4th DCA 2012), the plaintiff was seriously injured when, while loading a vehicle, she stepped into a pothole, tripped, and fell to the ground. The pothole was approximately one foot wide and two inches deep. The plaintiff conceded that she knew about the pothole before she fell.

Because the plaintiff knew about the pothole before she fell, the court ruled that the plaintiff could not maintain an action against the landowner Defendant MDC or its tenant, CVS. Summary judgment was granted for the defendants.

The Fourth District Court of Appeal agreed with the trial judge that the plaintiff could not maintain an action against the landowner for a failure to warn. However, it reversed the lower court’s ruling. Why?

In the words of the Burton court, here’s why:

“Florida courts have long held that a landowner’s duty to warn is separate and distinct from the duty to maintain the premises in a reasonably safe condition. “Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.” Lomack v. Mowrey, 14 So. 3d 1090, 1092 (Fla. 1st DCA 2009) (citing Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So. 2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 577 (Fla. 5th DCA 2005); Lynch v. Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986); Pittman v. Volusia County, 380 So. 2d 1192, 1193-94 (Fla. 5th DCA 1980)). A plaintiff’s awareness of a dangerous condition does not negate a defendant’s potential liability for negligence in allowing the dangerous condition to exist; it may be relevant, however, to a determination of comparative negligence. Mashi v. Lasalle Partners Management Ltd., 842 So. 2d 1035, 1039 (Fla. 4th DCA 2003).”

In other words, even though the pothole was open and obvious, hence, not concealed, thus obviating the duty to warn, the defendants remained obligated to maintain the premises in a reasonably safe condition. Instead of shutting the door altogether on the plaintiff, the DCA reversed the trial court’s ruling and remanded the case back to the lower court for further proceedings including on the issue of whether or not defendants breached their duty to maintain the premise in a reasonably safe condition. .

Premise liability cases implicate many thorny and complicated legal issues. In the event of an accident, it is best to seek the advice of legal counsel as soon as possible. Also take photographs of the dangerous condition that caused the accident.
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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.

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