We are about to file suit in a case where our client fell after catching the heel of her shoe on a tree root as she was traversing a raised, curbed planting bed that was six to eight feet wide, on the way back to her parked car from an employer-sponsored holiday party. (The photo at right shows the accident scene.) The accident happened at night under dim lighting conditions. Our client sustained a trimalleolar fracture.
We blame the commercial property owner for causing the accident by failing to maintain the premises in a reasonably safe condition, and failing to give warning of the concealed dangerous condition. We expect the property owner to counter that it had no duty to make the landscaping area in its parking lot fit for pedestrian traffic, and that the tree root was so obvious so as not to constitute a dangerous condition.
One of the leading cases on the subject is Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014). While the court ruled for the property owner, the differences between our case and the Wolf case provide us with a path to victory.
“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).
These basic reference points are qualified by other legal concepts. One of the main qualifiers is the open and obvious doctrine. “[S]ome conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition.” Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla 5th DCA 2012). (Qualifier to the O & O doctrine: “The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005) (citation omitted); see also Spatz v. Embassy Home Care, Inc., 9 So.3d 697, 698-99 (Fla. 4th DCA 2009).)
Plaintiff Wolf tripped on a tree root and fell while traversing a landscaping area with dirt, trees, and mulch. The court noted that the “landscaping areas were a few feet wide … and had concrete walkways that allowed persons to cross from one side of the landscaping area to the other without the need to step into the landscaping area itself.” The concrete walkways were located throughout the landscaping areas, and Wolf knew there was one only a few feet from where he had parked and decided to cross. The Wolf court ruled that, as a matter of law, the tree roots in the landscaping areas were so obvious and not inherently dangerous as to constitute a non-dangerous condition. It cited the following proposition:
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 v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012)
By emphasizing “that Wolf could have easily and safely crossed the landscaping area using a concrete walkway located only a few feet away from where he fell” — Wolf testified in his deposition that he knew the walkway existed but chose not to use it — the court signaled that the Dampier rule is not absolute. A jury should be allowed to consider the reasonableness of the circumstances.
In our case, the planting bed, which bordered the entire length of the parking lot, stretched some 120 yards from end-to-end without a single concrete walkway. Moreover, as the photograph shows, the bed was barely landscaped in the area of the fall. Instead, the area was well-worn from being used as a de-facto crossing path for patrons and employees. Our client was parked close to the landscaped bed and fall area, approximately 50 yards from the closest concrete walkway. Naturally, she took the well-worn path, which also provided the most direct route to her destination. There were no hedges to prevent her from taking this path or signs directing her to cross elsewhere.
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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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