PERSONAL INJURY | PREMISES LIABILITY | OPEN AND OBVIOUS DOCTRINE | FLORIDA LAW
In premises liability cases, defendants frequently assert the “open and obvious” doctrine to avoid liability, but a recent Third District Court of Appeal ruling highlights why this determination is often a question for a jury.
Published: October 29, 2025
Case: Ortega v. JW Marriott Inv., LLC
Court: Florida Third District Court of Appeal
Decision Date: February 26, 2025
The “Open and Obvious” Doctrine
For certain personal injury claims—specifically premises liability cases—defendants frequently attempt to avoid liability. To do this, they rely on a legal doctrine known as the “open and obvious” defense.
The core idea of this doctrine is straightforward. If a dangerous condition is wide open for all the world to see, a person should be able to avoid it. Consequently, aggressive defendants often move for summary judgment under this defense. They argue that no reasonable jury could find them negligent because the danger was obvious.
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.
Ortega v. JW Marriott Inv., LLC
The case is Ortega 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.
Reversal on Appeal and “Hidden Dangers”
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.”
Preparing Your Case
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.
Contact Maderal Byrne & Furst PLLC today for a free consultation.
LEGAL DISCLAIMER: This blog post is provided for general informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. The law is subject to change, and the application of legal principles varies depending on the specific facts of each case. If you have questions about your specific situation, you should consult a licensed Florida attorney. This post discusses legal concepts and principles addressed in the cited case. It is not intended to make any assertions about the truth of any allegations or evidence relating to any party to that case.
Citations & Sources
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Ortega v. JW Marriott Inv., LLC, No. 3D23-1916, 2025 WL 610824, at *4 (Fla. 3d DCA 2025)
