302 So.3d 481
Fla. Dist. Ct. App.2020Background:
- Tracy Greene tripped on a square depression in a shopping-center parking lot while walking with her two young daughters to a Twistee Treat ice cream shop and injured her hand.
- The depression was photographed: manmade, about 3–4 inches by 3–4 inches and several inches deep, same color as surrounding asphalt, with some dried leaves.
- Greene testified she looked ahead but did not see the hole until she was very close; the depression blended into the pavement and was not discernible from a distance.
- Defendants: Twistee Treat (lessee), Mission Bell and Kimco (property owners/maintainers). Plaintiffs sued for negligence; defendants moved for summary judgment arguing the defect was open and obvious.
- The trial court granted final summary judgment for defendants; the Second District reversed, finding material factual disputes precluded summary judgment and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pavement depression was an "open and obvious" condition that negates duty | Greene: the depression blended with pavement and was not visible until very close; not open and obvious | Defs: the defect was open and obvious, so no duty to warn or remedy | Reversed: jury question exists whether defect was open and obvious |
| Whether defendants should have anticipated harm despite any obviousness (distraction/foreseeability) | Greene: patrons would be distracted by the novelty of the ice-cream-shaped building, children, and traffic, so harm was foreseeable | Defs: even if foreseeable, an obvious condition still bars liability | Reversed: reasonable jurors could find defendants should have anticipated distraction and risk despite obviousness |
| Appropriateness of summary judgment given the record | Greene: testimony and photograph create genuine issues of material fact | Defs: evidence conclusively shows no triable issue | Reversed: material factual disputes require denial of summary judgment |
Key Cases Cited
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (2000) (summary-judgment standard—de novo review; movant burden)
- Holl v. Talcott, 191 So. 2d 40 (1966) (movant must prove absence of genuine issue; proof must be conclusive)
- Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (1986) (open-and-obvious rule and exceptions where possessor should anticipate harm despite obviousness)
- Williams v. Madden, 588 So. 2d 41 (1991) (landowner duty to maintain safe premises and warn of concealed hazards)
- Slaats v. Sandy Lane Residential, LLC, 59 So. 3d 320 (2011) (uniform color and glare can render a step not open and obvious)
- Moultrie v. Consolidated Stores Int'l Corp., 764 So. 2d 637 (2000) (fact question whether aisle obstruction was open and obvious; shoppers may not look at floor)
- Hadley v. Davjoy, Inc., 613 So. 2d 49 (1992) (poor lighting or distractions can create jury questions on obviousness)
- Green v. Sch. Bd. of Pasco Cty., 752 So. 2d 700 (2000) (possibility that an invitee might fall despite knowledge of a hazard raises a jury issue)
- Regency Lake Apartments Assocs., Ltd. v. French, 590 So. 2d 970 (1991) (owner may reasonably foresee distraction—e.g., walking a dog—despite an open condition)