More Information

Premises Liability Claims are About More than Just Notice

Akin WEB 2012One of the most common types of claims faced by business and property owners is a slip and/or trip and fall. While we are all familiar with the general law regarding premises liability, a recent decision from the Florida 2nd District Court of Appeals (“DCA”) serves as a reminder that business and property owners are charged with several duties in connection with the maintenance and care of their premises. Recently in Tallent v. Pilot Travel Centers, LLC, the Florida 2nd DCA reversed to the trial court’s entry of Final Summary Judgment in favor of a premises owner, despite undisputed facts that the allegedly dangerous condition was known to the plaintiff at the time of the accident. The Court went on to explain in its own words the important dichotomy between the duty of a property owner to warn and to maintain the premises in a reasonably safe condition.

Facts of Case

In Tallent, a truck driver slipped and fell in a diesel fuel spill at the defendant’s service station in Punta Gorda, Florida. The plaintiff filed a Complaint alleging the defendant negligently maintained the premises, causing him to fall. The defendant asserted that the condition was open and obvious and that its employees had complied with its fuel spill clean-up procedures. Testimony of the plaintiff revealed that he was aware of and noticed the fuel spill which had been marked off by several trash cans, before he decided to walk through the middle of the fuel spill, and slipped and fell. The 2nd DCA explained that the defendant had both a duty to use reasonable care in maintaining the property in a reasonably safe condition, and a duty to warn of dangers of which the defendant either had or should have had knowledge and which were unknown to the plaintiff.

The 2nd DCA went on to explain that these two duties are separate and distinct from one another. In other words, even where the property owner has no notice of a dangerous condition on its premises, it can still be liable for failing to maintain the premises in a reasonably safe manner. This second theory of recovery is known as the “negligent mode of operation” theory.

The 2nd DCA explained that because of the plaintiff’s testimony, and the large nature of the spill, the spill was open and obvious. As a result of the fact that the spill was open and obvious, there was no duty to warn the plaintiff of the condition at the time of the accident. Therefore, the plaintiff could not recover under his failure to warn allegations. However, the 2nd DCA reversed the trial court’s award of summary judgment on the basis that there was evidence from which a jury could determine that the defendant had failed to maintain its premises in a reasonably safe condition. The 2nd DCA explained that the record on appeal contained the testimony of the defendant’s head maintenance employee as to the usual and customary procedure for cleaning up fuel spills. However, the maintenance employee could not testify that he had personal recollection that he had followed that procedure on the day of the accident. In addition, the plaintiff testified that he saw no barriers or indicia of cleaning materials in the area of the spill other than the trash cans used to block the aisles. Therefore, as explained by the 2nd DCA, issues of fact remained regarding whether or not the defendant and its employees followed its clean-up procedures on the date of the plaintiff’s accident.

The holding in Tallent emphasizes the difficulty in obtaining summary judgment in negligence causes of action, especially in slip and fall cases.

Practical Application

The holding also provides business and property owners with several tacit warnings regarding the maintenance of their premises:

  1. It is important to ensure that all maintenance personnel follow the company’s procedures for maintaining and cleaning spills.
  2. In the event of an accident, it is important to contact the maintenance personnel in the area immediately following the accident in order to preserve their recollection of their actions on the day in question. For example, where maintenance personnel have followed the company’s policies and procedures for maintaining the area, or for cleaning a spill, it is imperative that steps are taken to preserve the individuals’ recollection for a future lawsuit. As defense lawyers, we are often faced with scenarios in which the employees and/or owners of a premises simply do not recall the incident in question, and have trouble remembering the steps they took in response to a spill or an accident. Likewise, they often cannot recall steps taken to clean the area prior to the spill. This makes the defense of the matter much more difficult, and inevitably creates issues of material fact for the plaintiff to expose in preventing summary judgment.
  3. This case serves as a reminder that business and property owners can still be held liable even when they did not have notice of a dangerous condition at the time of the accident. As explained in Tallent, business and property owners can be found liable where their operation of the premises may have been such that it would generally put the business or property owner on notice that a dangerous condition was likely to occur.

Bottom line: It is imperative that business and property owners maintain a set of policies and procedures for maintaining their premises, and for responding to spills, and that employees follow those procedures at all times.

About the AuthorRichard Akin, II is an associate in the Tort & Insurance Litigation department at Henderson, Franklin, Starnes & Holt in Fort Myers, Florida. Richard can be reached at 239-344-1182 or by email at