Tuesday, June 9, 2009

An Obvious Danger May Discharge Duty to Warn but Not Duty to Operate in Reasonably Safe Condition

In Lomack v. Mowrey (1D08-2554), the First District reversed the circuit court's order granting a motion for summary judgment.

The summary judgment standard:

"The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant...Only after these elements are established by the movant does the burden shift to the party opposing the motion to establish existence of a dispute of material fact."

In this case, the trial court held that the defendant had no duty to warn the plaintiff of the danger due to the fact that the danger was open and obvious. The First District, however, held:

"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...Moreover, despite the trial court’s apparent conclusion to the contrary, an invitee’s knowledge of a danger is normally not a complete bar to recovery, but rather only triggers the application of comparative negligence principles."

"Accordingly, even if the hazard caused by the loose wires were open and obvious and appellees thus had no duty to warn appellant of it (a finding the present record would not allow us to embrace at this point), the lower court nonetheless erred by determining appellees’ entitlement to judgment as a matter of law, given the absence of a factually supported finding that appellees also had not breached their duty to maintain their premises in a reasonably safe condition."


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