What duties does a landowner owe to a visitor to it's property? Florida's Fourth District Court of Appeals handled this issue recently in Burton v. MDC PGA Plaza, Corp., 78 So.3d 732. In this case, Ms. Burton suffered an personal injury on CVS property when she slipped and fell on a pothole. The plaintiff had earlier complained to management about the pothole.
The defendant argued that since the plaintiff knew about the pothole (as evidenced by her earlier complaints about it), that she could not then recover damages for injuries suffered as a result of her fall in the same pothole. The trial court agreed with the defense and dismissed the slip and fall case. The appeals court disagreed and overturned the verdict.
The appellate court held,
A landowner or occupier owes an invitee two independent duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils.
The court further held that a landowner's duty to warn is separate and distinct from the duty to maintain the premises in a reasonably safe condition. "Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner's duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition."
The fact that Ms. Burton had prior knowledge of the pothole may ultimately have some bearing on the case. A jury may find that she had some contributory negligence in not avoiding the danger of which she was already aware. The decision of the appeals court sent the case back to the trial court for the jury to ultimately decide the facts of the case.