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Terry Tallent, et al. v. Pilot Travel Centers, LLC, Case No. 2D13-3646 (2nd DCA)

In Tallent, the Second DCA reversed a summary judgment entered in favor of the defense in a slip and fall case. The opinion addresses the dichotomy between the duty to warn and the duty to maintain premises in a reasonably safe condition. The plaintiff in the case slipped and fell on diesel fuel that had spilled at the defendant’s service station. The plaintiff argued that the defendant had negligently maintained the service station, causing him to fall. The defense argued that the spill was open and obvious, and that the defendant’s employees complied with all fuel spill cleanup procedures.

The Second DCA noted that the plaintiff was a business invitee, and thus, the defendant owed two duties: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care. The plaintiff noticed the spill upon arriving at the service station, and walked through certain trash cans blocking an area where the spill was located on the way to the store on the premises. The Second DCA noted that it was clear from the record that the defendant owed no duty to warn because the plaintiff had knowledge of the existence of the spill.

However, the Court explains that the plaintiff’s knowledge of the spill, and the open and obvious nature of the spill, does not negate a defendant’s duty to maintain the premises in a reasonably safe condition, if the defendant anticipated the potential harm to the plaintiff as a result of the spill. The Court further explained that based on the record, material issues of fact remained as to whether the defense negligently failed to maintain the premises in a reasonably safe condition. The maintenance personnel from the defense did not personally recall the day, and only testified to usual and customary procedures. The size and extent of the spill was in dispute, but testimony existed that the spill was larger than any previous spill encountered by the defendant. The defense employees could not confirm that any cleaning procedures were employed the day of the incident. These, among several other disputed facts, constitute material issues of fact which precluded summary judgment in the case. The Second DCA therefore reversed.

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