For a certain type of personal injury case—a premises liability case—defendants often try to avoid liability by relying on a particular legal doctrine: the “open and obvious” doctrine. The gist of the doctrine is that the dangerous condition that caused the plaintiff injury was wide open for all the world to see and, thus, to avoid. An aggressive defendant may even move for summary judgment based on the defense, arguing that no reasonable jury could find it negligent given the obviousness of the dangerous condition. But as the Third District Court of Appeal recently reminded litigants, whether a dangerous condition is sufficiently open and obvious is often a question for a jury to decide, not a judge.
The case isOrtega v. JW Marriott Inv., LLC, No. 3D23-1916, 2025 WL 610824, at *4 (Fla. 3d DCA 2025). The plaintiff tripped and fell in a parking garage at the Miami Turnberry Resort. The plaintiff had parked near the exit gate and tripped over an elevated concrete slab to which the gate was anchored. Turnberry argued that the alleged dangerous condition—the elevated concrete slab—was open and obvious. The plaintiff, an employee for Turnberry, even admitted that she had parked in the garage before and had even “seen the concrete gate-arm slab on other occasions” and had not tripped on it “[b]ecause [she] saw it.” Turnberry moved for summary judgement based on the “open and obvious” doctrine and the trial court granted the motion.
On appeal, the Third District Court of Appeal reversed the trial court, ruling that a genuine question of material fact existed for the jury to resolve. The court observed that “[e]ven if a dangerous condition is open and obvious . . . landowners may still be found to have a duty of care where some uncommon design or aspect of the condition creates a ‘hidden danger,’ a ‘trap,’ or an ‘optical illusion’ not reasonably discoverable by an ordinarily prudent invitee.” According to the court, there were facts that could support such a conclusion. The plaintiff had claimed she was “not able to see the concrete gate-arm slab on the day of the incident because it was the same color as the ground in the parking garage and it was not painted or marked” and her expert similarly opined that the “change in elevation at the reported fall area existed in a disguised or camouflaged condition.”
If you’re litigating a dangerous condition, it’s important to be prepared for the “open and obvious” affirmative defense. In addition to potentially retaining a premises liability expert, you should make sure to ask questions at depositions that help prove the dangerous condition was concealed or, alternatively, a trap that even attentive persons might fall prey to. For example, questions about visibility conditions, color matching, and markings.