Injured Exiting Shopping Mall and Walked into an Unmarked Grey Cement Post. Required Hospital Treatment.
As the owner of a seasonal business, it affected me greatly. I had to have others in the company cover my employee training and office setup days. In addition, I missed important family events and am still undergoing followup treatment. All other posts on site are marked with a bright stripe, with the exception of those at this particular entrance. My son-in-law took photos the following night of the posts at the same time/same lighting. Can I seek compensation for lost time/profits at my business?
The owner and/or lessor of business premises in Tampa, FL must exercise ordinary or reasonable care to see that those portions of the premises, which persons are expected to use, are kept in a reasonably safe condition. This duty of care extends to approaches to and exits from the premises and is generally considered a non-delegable duty.
The difficulty in pursuing a claim under the given fact pattern is that the cement post, although not marked with bright stripes (like some of the other posts), was still likely visible or as some would say “an open & obvious condition” on the premises. The issue would not be whether the other brightly striped posts were more visible and thus safer, but whether the unstriped post is a latent, dangerous condition on the business premises. In fact, during the discovery phase of any litigation claim, the injured person may testify that he had previously seen this/these unstriped post(s) … and thus had prior notice of the presence of this/these unstriped post(s). While notice (of the presence of the unstriped post(s)) is a complete defense to a “ failure to warn” claim against the owner and/or lessor of the business premises, such notice would only serve to create a possible comparative negligence defense to a “failure to maintain (the premises in a reasonably safe condition) “ claim against the owner and/or lessor. On such a claim, the defense would undoubtedly argue that this injury was the result of the injured individual’s carelessness in failing to keep a proper lookout and watch where he or she was walking.