268 So. 3d 796
Fla. Dist. Ct. App.2019Background
- 72-year-old customer tripped on a raised manhole cover in a Wal‑Mart parking lot at night, suffering serious head trauma; plaintiffs are decedent’s estate and widow.
- Plaintiffs sued Wal‑Mart for negligent maintenance and failure to warn; Wal‑Mart moved for summary judgment and the trial court granted it without explanation.
- Wal‑Mart relied on governmental inspection/approval letters and testimony about in‑store safety checks, arguing no breach, no notice/foreseeability, and that the condition was open and obvious and the plaintiff’s own fault.
- Plaintiffs submitted seven depositions, two expert reports, and store surveillance photos; experts testified the manhole was elevated beyond allowable tolerance, the surrounding pavement was uneven, and the condition created a tripping hazard.
- City inspector testimony confirmed manhole covers should be flush with pavement and that deviations greater than 1/4 inch would fail inspection; experts measured gaps exceeding that tolerance.
- The Fourth District reversed, holding genuine issues of material fact existed on dangerousness, open‑and‑obvious doctrine, and whether Wal‑Mart should have anticipated injury despite obviousness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach / maintenance of premises | Manhole and surrounding pavement were improperly maintained and violated local grade/code tolerances | Government inspections and approvals show no breach; store conducted safety checks | Disputed material fact; code compliance and inspections not dispositive of dangerous condition—summary judgment improper |
| Notice / foreseeability | Raised/elevated manhole and uneven pavement should have put Wal‑Mart on constructive notice | No prior incidents and store inspections mean no actual/constructive notice; accident not foreseeable | Disputed: fact question remains whether store should have known the danger |
| Open and obvious danger | Even if manhole visible, poor nighttime lighting, traffic, age, and distractions make its danger not necessarily open and obvious | Condition was visible; store had no duty to warn of open and obvious hazard | Disputed: under surrounding facts (night, lighting, traffic, age) jury must decide if danger was open and obvious |
| Anticipation of harm despite obviousness (duty to protect) | Store should have anticipated customers would still trip (location between store and parking, single path, distractions) | If condition open and obvious, store not liable and plaintiff solely at fault | Disputed: court held jury must decide whether Wal‑Mart should have anticipated injury despite possible obviousness |
Key Cases Cited
- De Cruz‑Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885 (Fla. 4th DCA 2013) (summary judgment standard and landlord duties in premises cases)
- Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574 (Fla. 5th DCA 2005) (open‑and‑obvious danger analysis requires considering all surrounding facts)
- Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959 (Fla. 1989) (compliance with statutes/ordinances is evidence but not conclusive proof of reasonableness)
- Food Lion, LLC v. Monument/Julington Assoc. Ltd. P’ship, 939 So. 2d 1106 (Fla. 1st DCA 2006) (landowner must inspect to discover non‑open hazards)
- Hollywood Towers Condo. Ass’n v. Hampton, 993 So. 2d 174 (Fla. 4th DCA 2008) (summary judgment standard)
- Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383 (Fla. 2d DCA 2018) (appellate review of summary judgment focuses on whether plaintiff can possibly prove case)