Cook, the Second DCA reversed a summary judgment entered in favor of the defense
in a premises liability case. The plaintiff had attended a renaissance
festival hosted by Bay Area. The plaintiff was directed to park in an
overflow parking lot, and then proceeded to walk along an unpaved walkway,
where the plaintiff fell over an exposed pipe. Onlookers attempted to
warn the plaintiff of the pipe before she fell. The plaintiff later filed
suit, and the trial court granted summary judgment to the defense finding
that there was no proof that Bay Area had control over the premises where
the plaintiff was injured.
The Second DCA noted that in determining premises liability, the party’s
ability to exercise control over the premises is the relevant question.
Ownership of and title to the premises are irrelevant. “A party
who assumes control over the premises in question, no matter under what
guise, assumes also the duty to keep them in repair.” The Second
DCA found ample deposition testimony to establish that Bay Area was exercising
control over the unpaved walkway. As such, summary judgment should not
have been granted.
In response, Bay Area argued that even if it had exercised control over
the premises, the exposed pipe was open and obvious, and therefore, Bay
Area had not duty to warn the plaintiff of the hazard. “But even
when a hazard is open and obvious, a landowner or possessor can still
be held liable for failing to exercise reasonable care to prevent foreseeable
injury to invitees. In addition, even when the presence of the hazard
is actually known to the injured party, liability can still attach when
the landowner or possessor should have anticipated the possibility of
injury resulting from the hazard. The Second DCA further noted that questions
of foreseeability of injury are typically reserved for the jury.