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Florida Fourth DCA reverses trial court’s summary judgment for defendant in premises liability case, concludes that material issues of fact existed regarding dangerousness of manhole cover

On March 20, 2019, in Cruz v. Wal-Mart Stores East, No. 4D18-178, the Florida Fourth DCA reversed a trial court’s summary judgment for the defendant in a commercial premises liability case. The plaintiff in the case tripped on a manhole cover that was allegedly raised in places more than ¼ inch above the pavement in violation of the Broward County Code. The plaintiff’s expert testified that around the manhole there were various changes in grade, in some places greater than one inch. The Broward County Code requires the pavement around the manhole to be smooth and well-graded. The expert concluded that, because of its elevation and the uneven surface around it, the manhole did not comply with the Broward County Code or the City’s building ordinances. Although the defendant presented several from governmental authorities as evidence that the manhole was inspected and complied with building codes, the Fourth DCA noted that the store’s compliance with building codes is not conclusive on the issue of whether they maintained a dangerous condition on the premises. See Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959, 964 (Fla. 1989). The Fourth DCA concluded that there were disputed material issues of fact regarding whether the manhole cover was (1) a dangerous condition, (2) an open and obvious danger, and (3) should have been anticipated to cause injury.