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Florida Fourth DCA reverses trial court’s dismissal of plaintiff’s slip and fall complaint; plaintiff’s knowledge of dangerous condition raised comparative negligence issue rather than bar to claim for failure to maintain the premises in a reasonable safe

On June 12, 2019, in Leon v. Pena, et al, No. 4D18-2071, the Florida Fourth DCA reversed a trial court’s dismissal of the plaintiff’s slip and fall negligence lawsuit against her landlords for injuries she suffered as a result of a fall at her condominium complex. The fall allegedly occurred when the plaintiff lost her footing on some broken concrete on a sidewalk.  The trial court had granted summary judgment in favor of the landlords on all claims based on the plaintiff’s undisputed knowledge of the path’s condition, its open and obvious nature, and her assumption of the risk. However, as the Fourth DCA noted, even given the plaintiff’s knowledge of the condition of the concrete, the landlords could still be found liable for a failure to maintain the premises in a reasonable safe condition.  The Fourth DCA cited Wolford v. Ostenbridge, 861 So. 2d 455, 456 (Fla. 2d DCA 2003) and Lynch v. Brown, 489 So. 2d 65, 66 (Fla. 1st DCA 1986) as authority that the duty to maintain is a distinct, independent duty from the duty to give warning of concealed perils and cited Pittman v. Volusia Cty., 380 So. 2d 1192, 1193-94 (Fla. 5th DCA 1980) and Fieldhouse v. Tam Inv. Co., 959 So. 2d 1214, 1216 (Fla. 4th DCA 2007) as authority that the plaintiff’s knowledge of the dangerous condition is a comparative negligence issue rather than a bar to any recovery. [Reviewer’s Note: Since Florida’s adoption of the comparative negligence method for determining and apportioning liability, the assumption of risk doctrine only has continued applicability to express contracts not to sue and injuries relating to contact sports. See Blackburn v. Dorta, 348 So. 2d. 287 (Fla. 1977); Mazzeo v. City of Sebastian, 550 So. 2d 1113 (Fla. 1989)]  

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