ARE ANY CONDITIONS IN FLORIDA “SAFE” AS A MATTER OF LAW?
Andrew D. Stone , Esq. • Volume 3, Issue 6 June 2009

INTRODUCTION
We frequently see lawsuits where plaintiffs allege that the most innocuous conditions are dangerous. These conditions go beyond the “open and obvious” cracks in the pavement and puddles of “transitory foreign substances”. They include sprinkler heads in planters, the dreaded curb, and the sidewalk that is not perfectly flat.

This trend may be attributable to several factors. One of which is the fact that as of December 31, 2008, Florida had the 4th highest population of lawyers in the U.S. It may also be attributable to rising health care costs in the U.S.

CASE LAW REGARDING "SAFE" CONDITIONS
In Arnoul v. Busch Entertainment, 2008 WL 4525106 (M.D.Fla.), the plaintiff was on a pedestrian walkway at Busch Gardens when he walked into an overhanging tree branch that was 5 ½ feet high. Plaintiff’s counsel argued that the tree branch was dangerous because the sidewalk was crowded and bordered by eye-catching landscaping. He also argued that the tree branch / sidewalk combination was dangerous because pedestrians frequently had to both walk and supervise children at the same time. Counsel for Busch Gardens filed a Motion for Summary Judgment which Judge Becklew granted.

The court held that “some injury causing conditions are so open and obvious that they can be held as a matter of law, not to give rise to liability as dangerous conditions”.

The court noted that while the condition on a property must be looked at in light of the surrounding circumstances, the fact that a pathway may be crowded or that it may be bordered by landscaping, cannot, as a matter of law, render it unreasonably dangerous. The court cautioned that such a ruling would lead to a slippery slope where things such as tree trunks, planters and garbage cans, on or near busy sidewalks, would constitute dangerous conditions.

The court further noted that “there is no premises safe enough to entirely foreclose the risk that a guest might injure himself during an inattentive moment” and that “the law allows landowners to maintain, within reason, natural and visible diversity and to trust that invitees will use their common sense to avoid obvious potential injury by not walking into trees, for example”.

Lastly, the court noted that “some degree of risk can be anticipated no matter the environment. The law does not find fault with men for not futilely endeavoring to change this immutable fact, but recognizes that allowing some degree of risk will always be reasonable”.

In addition to the court in Arnoul, a handful of other Florida courts have served as gatekeepers and have refused to allow plaintiffs to get to the jury in cases involving innocuous conditions. See Taylor v. Universal City Property Management, 779 So.2d 621 (Fla. 5th DCA 2001)(Planter was not unreasonably dangerous); Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990)(Imperfect joint between concrete and surrounding asphalt was not unreasonably dangerous); Crawford v. Miller, 542 So.2d 1050 (Fla. 3rd DCA 1989)(One foot tall ‘Malibu’ landscape light located in shrubbery along a sidewalk was not unreasonably dangerous); McAllister v. Robbins, 542 So.2d 470 (Fla. 1st DCA 1989)(A row of concrete blocks was not unreasonably dangerous); K.G. v. Winter Springs Community Evangelical Congregational Church, 509 So.2d 384 (Fla. 5th DCA 1987)(An uneven block border placed around the base of a tree was not unreasonably dangerous when minor plaintiff was injured after tripping on a rock while playing football and striking his knee on one of the bricks); Prager v. Marks Brothers Company, 483 So.2d 881 (Fla. 3rd DCA 1986)(A flowerbox that was under construction and had dirt in it was not unreasonably dangerous when plaintiff slipped and fell while walking on it); Meyer v. Torrey, 452 So.2d 672 (Fla. 2nd DCA 1984)(A pygmy date palm tree was not unreasonably dangerous when the minor plaintiff was injured after he landed on the tree while diving for a football); Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981) (Concrete block and brick used to fill in depressions around a mulberry tree was not unreasonably dangerous when plaintiff fell out of the tree while throwing mulberry blooms to his friend).

CONCLUSION
While the cases cited above may be helpful in attempting to convince trial judges that they should find similar conditions safe as a matter of law, it has been our experience that when judges consider motions for summary judgment regarding such issues, they frequently find factual issues that they think should be submitted to a jury.

[BACK]