Florida’s open and obvious doctrine can end a premises liability lawsuit before a jury ever weighs in—but a recent appellate decision shows the doctrine has real limits. In Ortega v. JW Marriott Investment, LLC, the Third District Court of Appeal reversed summary judgment for a resort, holding that expert testimony about a poorly marked walkway hazard was enough to send a trip-and-fall case to a jury, even though the property owner insisted the danger was plain to see.
The Incident: A Hidden Hazard in Plain Sight
The plaintiff, a hotel guest, tripped over a raised, unmarked concrete slab that anchored a gate arm in a resort parking garage. The slab blended into the surrounding concrete and carried no painted edge or warning to alert pedestrians to the elevation change. Ortega’s safety expert testified that the design violated recognized industry standards and created an unreasonably dangerous condition for anyone walking through the area.
The Trial Court’s Ruling
The trial court sided with the hotel, finding the slab “open and obvious”—especially because Ortega had parked in that garage for years and knew the slab was there. On that basis the court granted summary judgment, ending the case before a jury could hear it. In the trial court’s view, a hazard a plaintiff already knows about could not support a premises liability claim.
The Limits of the Open and Obvious Doctrine
On appeal, the Third District Court of Appeal reversed. The court explained that the open and obvious doctrine is not an automatic shield: expert testimony about the hazard’s poor markings, the design defect, and the applicable industry standards created a genuine factual dispute over whether the condition was truly open and obvious and whether the property was maintained in a reasonably safe condition. Those questions, the court held, belong to a jury—not to a judge on summary judgment.
Importantly, the appellate court drew a distinction Florida property owners often overlook. Even where a hazard is visible, a landowner still owes a separate duty to maintain the premises in a reasonably safe condition. The open and obvious nature of a danger may reduce the duty to warn, but it does not erase the duty to maintain. When expert testimony shows a condition was more dangerous than it looked, the open and obvious doctrine cannot resolve the case as a matter of law.
What This Means for Florida Injury Victims
For Florida injury victims, Ortega is an important reminder: even if a business claims a hazard was visible, you may still have a viable premises liability case—particularly where design, markings, or industry standards show the condition was more dangerous than it appeared. A defendant’s reliance on the open and obvious doctrine is a defense, not a guaranteed win, and well-supported expert testimony can defeat it. You can read the full opinion here: Ortega v. JW Marriott Investment, LLC.
Practice Points Under the Open and Obvious Doctrine
Ortega offers several practical lessons for Florida litigants. First, expert testimony matters: a qualified safety expert who ties a hazard to recognized industry standards can transform a seemingly obvious condition into a contested factual question for the jury. Second, a property owner’s knowledge argument cuts both ways—evidence that the plaintiff had used the area before does not, by itself, resolve whether the premises were maintained in a reasonably safe condition. Third, the duty to maintain is independent of the duty to warn, so a defendant cannot rely on visibility alone to escape liability.
For plaintiffs, the takeaway is to develop the record early with photographs, code-and-standards evidence, and expert analysis rather than conceding that a hazard was open and obvious. For property owners and their insurers, Ortega is a caution against treating summary judgment as a foregone conclusion whenever a danger was arguably visible. The open and obvious doctrine remains a meaningful defense, but it disposes of a case only when the facts are truly beyond dispute. In short, the open and obvious doctrine is a fact-bound defense, not a shortcut around trial.
Contact Cox Law, PLLC
Cox Law, PLLC regularly handles complex Florida premises liability cases involving disputed hazards and expert testimony. Reach out today for a free consultation to learn how we can help protect your rights after a serious trip, slip, or fall. To schedule your consultation, call (813) 685-8600 or email Webquestion@Coxlawplc.com.
Disclaimer: The information in this post is for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney–client relationship. Every case is different; you should consult an attorney about your specific situation.