In any Florida premises liability case, the question of whether the defendant is responsible for the harm someone else suffered on their property often depends heavily on the unique circumstances of the case. Sometimes, that circumstance is a giant ice cream cone.
See: Greene v. Twistee Treat USA et al., recently before Florida’s Second District Court of Appeal.
Normally, people have an obligation to watch out for potential hazards when they’re on someone else’s property. They have a duty to avoid any open and obvious dangers. But that does not excuse property owners (businesses in particular) from their duty to anticipate potential dangers – even if they are open and obvious – and to warn guests of them. This is especially true if the property owner could have anticipated that the patron would be distracted or that it would have been so long since the last time they saw the hazard that they could have easily forgotten it.
In the case of the Twistee Treat tripping hazard, the 2nd DCA ruled that the “novel architecture” of the ice cream shop itself could be distracting enough that patrons might be forgiven not noticing/avoiding some hazards as they approach.
According to court records in this Florida premises liability case, plaintiff was in defendant’s parking lot, approaching the free-standing ice cream shop with her two daughters in toe when she encountered a depression in the pavement and her foot caught. She fell, and suffered injuries to her hand. She and her husband sued the ice cream shop and the owner of the shopping plaza (her for negligence and him for loss of consortium).
The defendants moved for summary judgment, arguing the hole in the pavement was open and obvious, and therefore the plaintiff didn’t have a cause of action for negligence. The trial court agreed and issued a final summary judgment in favor of all three defendants. Plaintiffs appealed.
In its review, the 2nd DCA noted that business owners owe invitees a duty to use reasonable care in maintaining their property in reasonably safe condition and to warn guests of dangers that are known or should be known that the invitee doesn’t know about and couldn’t discover even with due care.
Usually, there’s no duty to protect invitees against open and obvious dangers. But the 2nd DCA found that the trial court failed to apply certain material facts to the earlier ruling. Namely:
- That the hole was the same color as the surrounding pavement and was not observable from a distance or until one was very close to it and looking down;
- The hole was manmade, being a perfect square, possibly from a fireworks sale tent that had previously been set up there (meaning it was known or should have been known);
- The afternoon sun was directly in plaintiff’s eyes as she approached, just as many other customers would;
- The ice cream shop itself resembled an enormous ice cream cone. Plaintiff said she and her daughters were looking at the cone and commenting on it as they approached, while at the same time plaintiff was scanning the parking lot for approaching cars because she was guarding her children’s safety.
From all of these elements together, the court held, a jury in a Florida premises liability case could reasonably conclude the danger was not open and obvious, or alternatively that even if it was, the defendants should have reasonably anticipated that invitees in the parking lot would be distracted by the building and the need to watch for vehicles.
Therefore, the summary judgment was reversed and the case remanded for trial.
If you are injured in Fort Myers, Naples or Key West, contact our Florida premises liability injury attorneys at Garvin Injury Law at 800.977.7017 for a free initial consultation.
Greene v. Twistee Treat USA et al., Sept. 4, 2020, Florida’s Second District Court of Appeal
More Blog Entries:
Florida Personal Injury Lawsuit Risks, Explained, Sept. 16, 2020, Florida Premises Liability Blog