The summary judgment for the defendant is reversed because the record demonstrates genuine issues as to its negligence in maintaining its premises, comparative negligence, and legal cause.
SCHWARTZ, C.J., and GERSTEN, J., concur.
COPE, Judge (concurring).
This is an appeal of a summary final judgment in a premises liability case. Plaintiff John McCarthy was a customer at defendant's McDonald's Restaurant. He went to the condiment counter, underneath which the restaurant stored two highchairs. The legs of the highchairs protruded from underneath the condiment counter into the walkway. While at the condiment counter, plaintiff moved aside to allow another patron to pass. When he moved, he tripped over a protruding highchair leg and was injured. Plaintiffs brought suit.
The defendant restaurant moved for summary judgment, arguing that the highchairs were an open and obvious condition for which the property owner had no liability. Defendant supported the motion with a photograph, taken when the restaurant was empty, showing that an observer could see that the two highchairs were underneath the condiment counter. The trial court entered summary judgment in favor of the defendant restaurant, and the plaintiffs have appealed.
In my view, there are disputed issues of material fact as to whether the condition in this case was open and obvious, and whether this is a case in which the "distraction rule" applies.
As summarized in section 343A of the Restatement (Second) of Torts (1965):
§ 343A. Known or Obvious Dangers
Comment on Subsection (1):
(Emphasis added). See Casby v. Flint, 520 So.2d 281, 282 (Fla.1988) (relying on Restatement
Here the highchair legs protruded from underneath the condiment counter into the walkway. The protrusion was at floor level, while a patron using the condiment counter would be looking at the counter top, not the floor. Patrons approach the counter carrying meal trays, and when the restaurant was crowded, as it was on the day of plaintiff's accident, the view of the counter and highchairs was obscured. There were material issues of fact regarding whether the condition was open and obvious, and if so, whether the restaurant should have anticipated that a customer's attention would be distracted.
Reading the record in the light most favorable to the plaintiff as nonmoving party, there is evidence indicating that the defendant was negligent in storing chairs under the condiment counter in such a way that customers' feet could become entangled. In the same light, the summary judgment record supports the proposition that plaintiff was not negligent or, at worst, was comparatively negligent in failing to see the chair legs' protrusion into the walkway.