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lorida Second DCA finds that defendant in premises liability trip and fall case was not entitled to summary judgment based on allegedly open and obvious nature of parking lot depression

On September 4, 2020, in Greene v. Twistee Treat USA LLC et al., No. 2D14-4064, the Florida Second DCA reversed a summary judgment order entered by the trial court in favor of the defendants in a premises liability slip and fall case. The plaintiff tripped and fell in the parking lot of a shopping center owned and maintained by two of the defendants in the vicinity of a free-standing ice cream shop operated by the third defendant, Twistee Treat, who was their lessee. The plaintiff claimed that she caught her shoe in a depression in the payment and fell, injuring her hand. The trial court granted the defendants’ summary judgment motion on the basis that the condition was open and obvious. The Second DCA noted that a photograph of the depression depicted a hole that was the same color as the surrounding asphalt and contained some dried leaves. The Second DCA determined that hole was clearly manmade, noting that the plaintiff testified that she believed it was associated with a tent that in the past had been temporarily erected in the parking lot for purposes of selling fireworks. The Second DCA concluded that a jury could determine that the hole in the pavement was not so open and obvious that the defendants could reasonably expect that it would be discovered by an invitee such as the plaintiff, citing Slaats v. Sandy Lane Residential, LLC, 59 So.3d 320, 321 (Fla. 3d DCA 2011) ("[Plaintiff] testified that she was unable to see the step down because it was uniform in color and the afternoon sun was shining directly in her eyes."); Moultrie v. Consolidated Stores Int'n. Corp., 764 So.2d 637, 639-40 (Fla. 1st DCA 2000) (holding that material issue of fact presented as to whether the pallet resting in aisle of retail store was open and obvious); Hadley v. Davjoy, Inc., 613 So.2d 49, 51 (Fla. 4th DCA 1992) (holding that jury question presented by poor lighting conditions which may have obscured step down from dance floor at wedding reception). Quoting from Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1311 (Fla. 1986), the Second DCA also observed that the open and obvious doctrine “is certainly not a fixed rule and all of the circumstances must be taken into account.” The Court noted that an occupier of premises is not excused from its duties to protect or warn invitees if it reasonably should anticipate that the condition poses an unreasonable risk of harm to the invitee notwithstanding the obvious nature of the condition, again quoting from Hadley: “[t]his is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it.” The Second DCA stated that a jury could conclude that the defendants reasonably should have anticipated that an invitee negotiating the parking lot to visit the ice cream shop would be distracted by its striking appearance (an enormous ice cream cone) and by the need to watch for approaching vehicles.

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