South Florida Injury Lawyers Blog
There are tens of thousands of hotels in Florida, and most make a handsome profit on the state’s booming tourism industry here in the Sunshine State. But with that comes an inherent responsibility to keep the property safe from unreasonable hazards. Failure to do so can result in a premises liability lawsuit.
However, hotel guests as invitees have a responsibility as well. They need to protect themselves from dangers that are open and obvious. Failure to do this can result in a reduction of damages or potentially even a dismissal of their case.
The question of whether a hazard is open-and-obvious has been sharply debated in courts across the country. Further, the defense isn’t absolute. It may be used as a way for the defense to argue reduced compensation to the plaintiff for the role he or she played, but it’s not necessarily a total bar to recovery (depending on the state where it occurs).
The recent case of Carter v. Bullitt Host, LLC, was weighed by the Kentucky Supreme Court, where state law on the issue of comparative fault changed in 2010. For nearly 50 years prior to that, the state followed a model of contributory negligence, meaning any fault by the injured plaintiff in an accident was grounds to dismiss the case entirely. However, the state now follows a model of pure comparative fault – just like Florida – meaning a plaintiff who is 99 percent at fault can still recover the remaining 1 percent of damages against a defendant.
So whereas before, a finding that an injury-causing danger was open-and-0bvious (and plaintiff failed to avoid it) would have meant the case would be dismissed outright, now plaintiff has a chance to argue he or she only shared a portion of the fault, with the rest of the blame on the defense.
In the Carter case, a hotel guest from Texas slipped and fell on an unseen patch of ice just underneath a covered walkway outside the entrance of a Kentucky hotel. He suffered a broken ankle that required emergency treatment and later surgery.
Plaintiff knew it had snowed the night before, but he didn’t see any ice, he figured there wasn’t any on the walkway because the area was covered and noted it was 40 degrees outside – which his above freezing.
However, trial court granted summary judgment in favor of defense, finding the hazard was obvious because plaintiff should have known it was a possibility there could be ice because there was snow on the ground outside, this was not an indoor area, he had driven through the snow the night before and the injury was not foreseeable to defendant because plaintiffs had safely made their way into the hotel under similar conditions the night before.
The appellate court upheld that decision, concluding plaintiff was aware of snow and ice outside and the fact there could be ice on the walkway. The only exception to this open-and-obvious hazard would have been if he was reasonably distracted, which he wasn’t.
However, Kentucky Supreme Court reversed. The court noted the law had changed since the 1968 precedent case for open-and-obvious hazards, which had been made under the old contributory negligence model. Now, the state followed a pure comparative fault model, and case law had since reflected that.
The reversal was followed by a remand back to the trial court, meaning the case will now be weighed by a jury, which will determine what percentage of fault – if any – plaintiff had to avoid a potentially obvious hazard that caused him injury.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Carter v. Bullitt Host, LLC, Sept. 24, 2015, Kentucky Supreme Court
More Blog Entries:
Frazier v. Drake – Sudden Emergency Defense in Car Accidents, Sept. 24, 2015, Deerfield Beach Injury Lawyer Blog