TORTS: NEGLIGENCE: PREMISES LIABILITY: SLIP AND FALL: SLIP AND FALL OVER RAISED WOODEN PLANK IN WHARF-LIKE DECK DURING MARDI GRAS FESTIVAL; CIVIL PROCEDURE: SUMMARY JUDGMENT: SUMMARY JUDGMENT FOR DEFENDANT REVERSED BECAUSE OF ISSUES WHETHER DECK WAS PROPERLY MAINTAINED AND CONDITION WAS OPEN AND OBVIOUS

Doering v. The Villages Operating Company, ___ So. 3d ___, 40 Fla. L. Weekly D49 (Fla. 5th DCA December 19, 2014)

The plaintiff slipped and fell over a raised wooden plank in a wharf-like deck during a Mardi Gras festival. The defendant contended that the condition was open and obvious and was not dangerous because the unevenness of the boards was intended to recreate the authentic appearance of a wharf. The trial court entered summary judgment for the defendant, but the appellate court reversed because of the existence of genuine issues of material fact. Evidence existed that (1) the plank was “completely rotted and warped upward between one-half inch and one and one-half inches above the deck’s surface,” (2) the defendant’s representative knew that the wooden planks were susceptible to rotting and warping that could create a tripping hazard, and (3) the building code required beveling of differences in elevation in excess of one-quarter inch. In addition, the openness of the difference in elevation was subject to dispute because the area was crowded, the plaintiff was looking for a place to sit, and her expert testified that changes in elevation of blending color surfaces are not adequately visualized by a person’s lower peripheral vision.

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