Luther, Collier, Hodges & Cash, LLP – Attorneys at Law

FLORIDA – Negligence – Duty to Warn & Comparative Negligence

In Leon v. Pena the Florida 4th DCA ruled that an invitee’s knowledge of a dangerous condition eliminates a property owner’s duty to warn. However, the invitee’s knowledge of the dangerous condition does not eliminate the property owner’s duty to maintain.

Leon was a tenant at a condominium development where Pena was her landlord. Leon testified at deposition that she had first noticed a crack in a community sidewalk when she moved in approximately ten years prior to injuring herself on the sidewalk. She also testified that she had walked on the same sidewalk for ten years and never took special care to avoid the cracked sidewalk which continued to deteriorate over time. The trial court granted summary judgment to Pena, finding that the condition was open and obvious and that Leon assumed the risk by continuing to walk on the sidewalk despite knowing of the dangerous condition.

On appeal the Fourth DCA found that Leon’s knowledge barred her assertion that Pena should have warned her of the sidewalk’s condition. A warning of a condition to which a person has knowledge is redundant. Based on this the DCA found that summary judgment as to the duty to warn was appropriate. The DCA reversed the trial court’s decision as to Leon’s allegations that her landlord failed to maintain the sidewalk. The Court ruled that a property owner has a continuing duty to maintain a property regardless of whether invitee’s have knowledge of a certain dangerous condition.

Based on the continuing duty to maintain the property, Leon’s knowledge of the cracked sidewalk “merely raised an issue of fact as to her own comparative negligence.” Therefore, where evidence that an invitee has knowledge of a dangerous condition on a property does not operate to bar liability.  Said knowledge is only considered in determining the comparative negligence of the invitee.

Leon v. Pena, 4D18-2071, 2019 WL 2439910 (Fla. 4th DCA June 12, 2019)

Read the full opinion here…

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