Daytona Beach Personal Injury Lawyers
Free Consultations 386.258.1622

Florida Second DCA reverses summary judgment for defendant general contractor in premises liability case, finding that defendant failed to conclusively establish that it should not have anticipated the harm to the plaintiff notwithstanding the plaintiff’s knowledge of the danger

On January 15, 2021, in Pratus v. Marzucco’s Construction & Coatings, Inc., No. 2D19-2807, the Florida Second DCA reversed a summary judgment for the defendant in a premises liability case.  The plaintiff was injured when he stepped into an uncovered drain while working as an employee of electrical subcontractor at a construction site overseen by the general contractor defendant. The plaintiff alleged in his complaint that the defendant breached his duty to maintain the premises in a reasonably safe condition both by leaving the drain uncovered and failing to warn.  The trial court concluded that the condition was “open and obvious” because the plaintiff admitted to having seen the drain uncovered on previous workdays, although the plaintiff had argued in opposition that he had also seen the drain covered at various times.  The Second DCA focused on the latter fact, noting that there was no evidence that the plaintiff knew the drain was uncovered on the day of the accident and that it would not have been unreasonable for the plaintiff to assume that the drain was covered since the caution tape had been removed from the door leading to the drain. In addition, the Second DCA stated that even if the danger was open and obvious, the defendant still had a duty to maintain the premises in a reasonably safe condition if it could have anticipated the harm to the plaintiff as a result of the uncovered drain, citing in support Tallent v. Pilot Travel Ctrs., LLC, 137 So. 3d 616, 618 (Fla. 2d DCA 2014) (“T]he discharge of the duty to warn does not necessarily discharge the duty to maintain the premises in a reasonably safe condition" (quoting Knight v. Waltman, 774 So. 2d 731, 734 (Fla. 2d DCA 2000)). The Court concluded that the defendant failed to achieve what was required for summary judgment; namely, to conclusively establish that it should not have anticipated the potential harm to the plaintiff as a result of the uncovered drain, "notwithstanding his knowledge of the danger” (quoting from its previous decision in Miller v. Slabaugh, 909 So. 2d 588, 589 (Fla. 2d DCA 2005)).

Categories: