A Florida appellate court recently determined that an unpainted speed bump in an apartment complex was not a dangerous condition as a matter of law. In doing so, the court determined that the landowner had no duty to warn of the condition.
What is the duty to warn?
Florida law recognizes a property owner’s “duty” as its responsibility to warn others of concealed dangers that are or should be known to the owner and which are unknown and cannot be reasonably discovered by those visiting the property. This obligation can be discharged if the dangerous condition is open and obvious.
Duty to maintain the property in a reasonably safe condition
In addition to the duty to warn, Florida law has historically recognized a property owner’s obligation to maintain its property in a reasonably safe condition. Where a dangerous condition may obviate the need to warn others of that condition, it does not discharge the landowner’s obligation to maintain the property in a reasonably safe condition.
This is because the duty to warn and the duty to maintain the property in a reasonably safe condition are two separate and distinct duties. Consequently, even if a landowner warns of a dangerous condition or that condition is open and obvious, a property owner may still be responsible for injuries to others if the property is not maintained in a reasonably safe condition.
The Appellate Court’s Decision
Smith v. Westdale involved a trip and fall over a speed bump at an apartment complex. Eileen Smith was helping a friend move out of her apartment complex when she tripped over an unpainted speed bump and injured herself. Ms. Smith alleged that the unpainted speed bump was partly concealed by a shade from a tree. Consequently, she did not see the unpainted speed bump and tripped over it. Ms. Smith did acknowledge that she was not looking ahead while walking as she was looking for a bank of mailboxes in an effort to help her friend.
In its analysis to determine whether the trial court correctly applied Florida’s new summary judgment standard the court analyzed the landowner’s duty to warn and its duty to maintain the property in a reasonably safe condition.
While discussing the property owner’s duty to warn, it focused that the alleged dangerousness of the speed bump was the fact that it was unpainted. It noted that the speed bump was not otherwise defective and did not have any other dangerous characteristics. Accordingly, the court determined that the condition was open and obvious and could have easily been discovered by Ms. Smith and the property owner’s knowledge of the condition was equal to Ms. Smith’s. Finally, it noted that Ms. Smith had been to the property in the past and knew speed bumps existed in the apartment complex. Accordingly, the court determined the property owner did not breach its duty to warn Ms. Smith of the unpainted speed bump.
The appellate court then went on to analyze the trial court’s decision that the unpainted speed bump did not rise to the level of a failure to maintain the property in a reasonably safe condition. Here, the appellate court’s analysis is a little more dubious. In determining that the property breached no duty to exercise ordinary care to maintain its property in a reasonably safe condition, the court focused on the speed bump’s “open and obvious” condition. As discussed above, Florida has a rich history of obviating the duty to warn when a condition is open and obvious while not relieving the property owner’s obligation to maintain the property in a reasonably safe condition.
As recognized by Judge Makar in his dissenting opinion, the appellate’s majority decision invades the province of the jury. In other words, while the condition may have been open and obvious, the issue of whether the unpainted speed bump constituted a failure to maintain the property in a reasonably safe condition is one that should have been left to a jury rather than decided as a matter of law by an appellate court. And while the dissent recognized that Ms. Smith may not have been looking where she was walking, that should have also been left to the jury to assign any comparative negligence to her. Finally, Judge Makar discussed previous decisions in which other appellate courts, from Florida as well as other states, have determined that juries rather than judges should resolve factual disputes as to the dangerousness of unmarked speed bumps, and presumably, other conditions.
Proving A Slip and Fall Accident
Slip and fall accidents are a subset of premises liability claims. The term “slip and fall” is generally used when a person slips or trips, and falls on another individual’s property. For an injured person to collect compensation, it must be proven that they sustained bodily injury due to the negligence of the property owner.
To prove that a property owner is financially responsible for the injuries of another, the injured person must prove:
- The accident was caused by a dangerous condition on the property.
- The property owner knew of the dangerous condition and failed to warn the injured person or remedy the condition.
To prove a slip and fall case, an injured individual should seek immediate medical attention, and document the incident as soon as possible. Documentation should include:
- A detailed account of the accident which includes the time, location, witnesses, and any mitigating factors like poor weather conditions.
- Photos of the scene of the accident and any injuries sustained.
- Contact information of any witnesses to the accident.
Contact a Slip-and-Fall Accident Attorney
Slip and fall accident attorneys help injured individuals determine if they have a premises liability claim and how to sue the responsible party. At the law offices of Panter, Panter, and Sampedro, our experienced slip-and-fall accident attorneys will examine all the evidence to determine if a property owner may be found negligent. To speak to a dedicated attorney about your individual case, call (305) 662-6178 today.