Knowledge Of Defect On Premises Does Not Bar Claim
Posted by
Bob CarrollSeptember 24, 2005 10:20 AMIf the visitor knows there is no handrail and still falls down the stairs and is injured can he bring a claim for compensation?
The answer, according to the very recent appellate decision of MILLER v. SLABAUGH, 2D04-3799 (Fla.App. 2 Dist. 2005, is yes. The reason lies in the twofold duty that a landowner owes to a visitor. The result of this decison is the right of an injured person to present his claim for damages based on a defect on the property to a jury for its consideration of the reasonableness of both the landowner and the injured person.
Seems like the most reasonable approach to me.
If the visitor knows there is no handrail and still falls down the stairs and is injured can he bring a claim for compensation?
The answer, according to the very recent appellate decision of MILLER v. SLABAUGH, 2D04-3799 (Fla.App. 2 Dist. 2005), is yes. The reason lies in the twofold duty that a landowner owes to a visitor. The result of this decison is the right of an injured person to present his claim for damages based on a defect on the property to a jury for its consideration of the reasonableness of both the landowner and the injured person.
Seems like the most reasonable approach to me.
The appellate decision states: "The Millers sued the Slabaughs after David Miller fell from a stairway on the Slabaughs' property while assisting them in moving a mattress and box spring set. The Millers alleged that the Slabaughs negligently constructed and maintained the stairway, which abutted a wall on one side and had no railing on the other side,and that David Miller fell and sustained an injury as a result of the Slabaughs' negligence."
"In Zambito v. Southland Recreation Enterprises, Inc.,383 So. 2d 989, 990 (Fla. 2d DCA 1980), this court stated the following:
It has long been the rule that a landowner or occupier owes two duties to an invitee on his premises: 1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee."
"A number of decisions similarly recognize that while the open and obvious nature of a condition may discharge a landowner's duty to warn, it does not discharge the landowner's duty to maintain the premises in a reasonably safe condition "[i]f the landowner should anticipate that harm could occur despite the invitee's knowledge of the danger." Knight, 774 So. 2d at 734; see also Green, 752 So. 2d at 702; Arauz v. Truesdell, 698 So. 2d 872, 874 (Fla. 3d DCA 1997). "A plaintiff's knowledge of a dangerous condition does not negate a defendant's potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment." Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737, 739 (Fla. 4th DCA 2001).