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If you’ve been injured on another person’s property, you may be entitled to recover damages even if the injuries were caused by a dangerous condition of the property that was “open and obvious.”

Unfortunately, many slip-and-fall victims and victims of other premises-based negligence do not realize that Florida law provides for recovery in a number of different situations, including those in which the dangerous condition at-issue was open and obvious.  As such, it’s important that you consult with an attorney as soon as possible so that your claims can be fully assessed and litigated.

The Basics of Premises Liability and the Open and Obvious Doctrine

Premises liability claims are essentially injury claims where the injuries are caused by a dangerous condition or hazard of the property.  Florida law exposes the person or entity that controls the property (which may be the owner of the property, the business that leases the property, etc.) to liability for injuries caused by dangerous conditions of the property.

If the controlling person/entity knew or should have known about the dangerous condition and that it posed an unreasonable risk of harm to you and others like you (say, for example, patrons of a restaurant), and did not make reasonable efforts to shield you from the risk of harm (i.e., by correcting the dangerous condition or by warning you and others of the dangerous condition), then you may be able to hold the controlling person/entity liable and recover damages.

But how does liability work if the dangerous condition was open and obvious to you?  For example, suppose that there is a broken stairway in the defendant’s restaurant, the use of which would create an obvious and unreasonable risk of harm.  If you use the stairway and injure yourself, can you hold the defendant liable?

The answer is “maybe,” and it largely depends on the circumstances surrounding the dangerous condition — here, the stairway.  By default, Florida implements the open and obvious doctrine.  Pursuant to the doctrine, the defendant can attempt to assert that the risk of danger was so obvious that they cannot be held liable for your injuries.  However, it is possible for a skilled attorney to overcome the open and obvious doctrine.

Let’s take a look at how you can recover damages despite having been injured by an open and obvious danger.

Overcoming the Open and Obvious Doctrine

In Florida, the open and obvious doctrine is not applicable to situations where the person or entity who controls the premises at-issue knew or should have known that visitors such as yourself would engage with the obvious danger and therefore be exposed to a substantial risk of harm.

To better understand how this works, let’s return to our stairway example, with a twist.

Imagine that you are visiting a restaurant to have lunch with some friends.  The restaurant is a bit of a hole-in-the-wall, and has a single entrance.  The entrance leads directly to a staircase up to the main dining area.  The staircase is old, rickety, and visibly broken in some areas, and is clearly an open and obvious danger.  There is no other way up to the dining area, however, and so you climb the staircase and engage with the dangerous condition.  As you make your way up, a stair cracks and collapses beneath your foot, causing you injuries.

Given these circumstances, Florida law would likely entitle you to recover damages from the restaurant owner.  Though the danger may have been open and obvious, customers would have no choice but to engage with the dangerous condition in order to use the premises.  As such, the restaurant owner knew or should have known that diners would be exposed to an unreasonable risk of harm, and may be held liable. 

Contact Randall Spivey today to speak with a skilled Fort Myers slip and fall accident attorney at the Spivey Law Firm, Personal Injury Attorneys, P.A.  We will provide a free and confidential consultation to discuss your legal options and rights.