“Open and Obvious Danger” as a Defense in Premises Liability Lawsuits

In Florida premises liability law (which pertains to the responsibility of property owners to keep their site reasonably safe), the “open and obvious” doctrine is one that essentially states if a hazard or condition was open and obvious to a reasonable person, the landowner isn’t liable (or might be less liable) for failing to address the danger or warn the injured person about it. The idea is a visitor should have been able to recognize and appreciate that an open and obvious danger was present and take measures to protect themselves from that harm. personal injury

It can be a powerful defense, and one our personal injury attorneys in Fort Lauderdale are committed to challenging head-on. We recognize there may be numerous exceptions to the open-and-obvious doctrine, including:

  • Landowner knew people would likely be hurt even if they were aware of it;
  • Negligence per se, which involves violation of a health or safety statute, for which landowner could be liable regardless of the awareness or actions of the injured party.

If you’re injured on business property in South Florida, it’s important to consult with an injury lawyer who can help you ascertain the viability of your claim and brainstorm on effective challenges to likely defenses.

In a recent premises liability lawsuit weighed by the U.S. Court of Appeals for the Seventh Circuit, justices ruled in favor of defendant, based on the open and obvious doctrine defense.

According to court records, the defendant is the owner of a chain of home improvement stores located in the Midwest, with the one in question being in Illinois. Plaintiff and his adult son were at this store one evening in January 2014 to buy rolled insulation. It wasn’t the first time plaintiff had been to this store, and in fact he went there monthly to buy home improvement supplies for his personal use. Plaintiff bought 21 rolls of insulation inside the store and the cashier gave him a receipt and instructed him to bring his vehicle around to the self-service warehouse to load his purchase into his van.

Near the entrance of this warehouse, a large sign warned against customers cutting bandings, opening packages or pulling or climbing on packages, directing them instead to ask for assistance. Plaintiff did not see any employees inside the warehouse, but did understand he could ask for help if needed. Plaintiff saw that one of the stacks of insulation he purchased was not straight and was leaning to the right. He noted it seemed too high and it was “pretty obvious” that the stack was “unstable.” For this reason, he told his son to “keep an eye” on that particular stack. However, he did not seek help from store employees. Instead, he said he used extra caution in loading, which he and his son did for the next 15 minutes. During that time, neither he nor his son touched the stack. As they were loading the final bales, the leaning stack fell, knocking plaintiff to the ground and reportedly causing personal injury to his shoulder.

Plaintiff and his son immediately returned to the store and notified the front office of the injury. Two employees told the manager they heard the insulation stack fall, but that they were never asked for help.

The following year, plaintiff filed a personal injury lawsuit against the store, alleging negligence on the basis of premises liability. After discovery was completed, trial court granted summary judgment to defendant, finding the store didn’t owe a legal duty to plaintiff because the leaning stack of insulation that fell was open and obvious, and that to impose a duty would be “excessively onerous” based on the circumstances.

The appellate court affirmed, noting both plaintiff and his son observed the stack to be “obviously” leaning, and further that the risk of this would be apparent to a reasonable person.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Dunn v. Menard, Inc., Jan. 29, 2018, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Enforceable Florida Texting Ban Mulled by State Legislators, Jan. 21, 2018, Fort Lauderdale Personal Injury Attorney Blog

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