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Florida First DCA affirms summary judgment in premises liability case where plaintiff observed dangerous condition and chose not to step around it

On April 4, 2017, in Brookie v. Winn-Dixie Stores, No. 1D16-1285, the Florida First DCA affirmed a summary judgment for a premise liability defendant when the plaintiff observed the dangerous condition next to the entrance to the defendant’s store, an empty pallet jack used for transporting beer, but failed to step around the “easily avoidable obstacle.” The Florida First DCA held that while a business invitee is entitled to expect that the proprietor will take reasonable care to discover the actual condition of the premises and either make them safe or warn [the invitee] of dangerous conditions, it is equally well settled that the proprietor has a right to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. The Court held that there is no duty to warn against an open and obvious condition which is not inherently dangerous. Instead, business owners need only 1) warn of 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; and 2) use ordinary care to maintain the business premises in a reasonably safe condition. The Court concluded that there was no duty to warn in this case because the defendant’s knowledge of the condition was not superior to the plaintiff’s knowledge. With respect to the issue of whether there was a breach of the duty to exercise ordinary care in maintaining the walkway, that Court noted that there are two types of obvious conditions that will not constitute such a breach: where (1) the condition is not inherently dangerous, and (2) where the condition is so open and obvious that an invitee may be reasonably expected to discover them to protect himself. In this case, the Court concluded that both conditions were satisfied.