An employee of an electrical subcontractor was injured when he stepped into an uncovered drain on the construction site. Plaintiff sued for negligence alleging that the General Contractor breached its duty to maintain the premises in a reasonably safe condition by leaving the drain uncovered and failing to warn of the danger of the uncovered drain. Defendant moved for summary judgment arguing that it had no duty to warn of the uncovered drain.
The trial court granted summary judgment reasoning that the General Contractor (Defendant) had no duty to warn Plaintiff of the “open and obvious drain” because Plaintiff was aware of it and should have altered “his behavior in such a manner that the incident could have been avoided.”
The Second District reversed finding error. The appellate court noted that 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.” De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013).
The appellate Court found that the even if the danger was open and obvious, Defendant failed to negate any triable factual issue as to whether its dangerous condition was obvious. (This burden will not be the burden after May 1, 2021 as Florida is shifting to less restrictive federal court standard. The opinion changing the rule may be found here.)
Independent of the duty to warn, the Defendant had a duty to maintain the premises in a reasonably safe condition “if it could have anticipated the harm to Plaintiff as a result of the uncovered drain.” The Court reasoned that Plaintiff had to conclusively establish that it should not have anticipated the potential harm to Plaintiff as a result result of the uncovered drain notwithstanding Plaintiff’s knowledge of the danger. (This burden will not be the burden after May 1, 2021 as Florida is shifting to less restrictive federal court standard.)
The trial court erroneously concluded that Defendant’s duty to maintain the premises in a reasonably safe condition was discharged because Plaintiff knew of the drain and failed to avoid it. To the contrary, the appellate court found Plaintiff’s knowledge merely created a fact issue for “the jury as part of its comparative negligence determination.”
The opinion may be found: