If you stepped into a pothole and fell on someone else’s property, you may have a case.
This article focuses on claims for people who step into a pothole, fall and get hurt in Florida.
Does a landowner or operator have to warn you about a pothole on its property?
In Florida, the open and obvious nature of the pothole discharges the landowner’s duty to warn you of a dangerous condition. If the pothole is open and obvious, the landowner doesn’t have to warn you of the pothole.
Whether a pothole is open and obvious depends on the particular facts of your case. It will depend on how visible it should have been to you before your fall.
If a pothole is open and obvious, does a landowner have to fix it?
In Florida, yes. The landowner has a duty to maintain the property in a reasonably safe condition. This is true even if the pothole is open and obvious.
If you were aware of a pothole before you fell, do you still have a case?
In Florida, yes. If you are aware of a pothole before your step in it, the landowner is still potentially liable for negligence in allowing the pothole to exist.
If you were aware of a pothole before you fell, does it hurt your case?
Yes. Your awareness of the pothole before the fall makes you comparative negligent. Your fault in seeing the pothole before you fell reduces the full settlement value of your case.
Can you still get money if you’re 51% or more at fault for stepping in the pothole?
In Florida, yes. However, your damages are reduced by your degree of fault. So, if you are 51% or at fault, you are able to get 49% of your damages.
What can you get if you step and trip in a pothole?
If a landowner’s negligence resulted in your stepping into a pothole and falling, you may be able to get money for damages. These damages are the same as in any Florida trip and fall case.
These include:
- Past Lost Income
- Future lost income reduced to present value
- Past medical expenses
- Future medical expenses
- Replacement value of lost personal property (e.g. damage to your watch, glasses, etc.)
- Funeral expenses
- Reimbursement for mileage to and from medical appointments
- Past Pain and suffering
- Future Pain and Suffering
- Disability
- Scarring and disfigurement
- Mental anguish
- Loss of capacity for the enjoyment of life
- Punitive Damages (in rare cases)
Pothole Fall Down Case vs CVS in Palm Beach Gardens, Florida
A lady worked for a marketing and merchandising company that helps new retail businesses get prepared for opening.
She was brought in to work at a new CVS Pharmacy in Palm Beach Gardens that was getting ready for its grand opening. Her job included setting up and stocking shelves, moving fixtures, and unloading trucks on CVS’s back parking lot.
Bad fact for her case
While unloading trucks, she noticed a pothole about ten or fifteen feet from the store’s back door. The pothole was approximately one foot wide and two inches deep.
Since she noticed the pothole before her fall, and later stepped in it, the value of her case will take a cut. This is because CVS will argue that she should have avoided it since she knew that it was there before your fall.
Good fact for her case
She informed her co-workers and CVS’s management of the pothole and urge everyone to exercise caution. It helps her case that she felt the pothole was dangerous enough to report it to CVS’s management before her fall.
Her argument will be that CVS should have immediately fixed it. On the flip side, if she felt that it was so serious to warn people about it, she should have been even more aware of it before her fall.
She stepped into the pothole
One week later, she was seriously injured when, while loading a vehicle, she stepped into the pothole, tripped, and fell to the ground.
She sued both CVS and the landlord. CVS and the landlord tried to get the case dismissed.
The appeals court let the case continue to trial. This was a victory for the injured lady. I don’t know if the case later settled, and if so, for how much.
The case is Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012).
Lady Sues for Stepping into a Pothole at Winn Dixie in Florida
A lady sued Winn Dixie for damages for the injuries she suffered when she allegedly stepped into a pothole in a parking lot serving customers of Winn Dixie Food Stores.
The appeals court said that the evidence shows an issue of fact as to whether Winn Dixie has prior constructive knowledge of the claimed defect in Winn Dixie’s parking lot.
Tip: An issue of fact is what the injured person wants. It allows the case to proceed to a trial, which usually gets a store to offer money if they haven’t already.
This case was allowed to continue to trial.
Shopper parked in parking space for customers of the store
According to Ms. Turner, on November 21, 1990, she parked her four door car in a striped parking space provided for customers of the store.
After making her purchases in the store, she returned to the passenger side of her car with a shopping cart and unloaded some of the items from the cart, placing them in the rear passenger seat through the rear door.
She closed that door and opened the front passenger door to place the remaining items in the car. After she opened the door, she turned around and faced the shopping cart with her back to the car.
She stepped backwards into unseen pothole
She then lifted a bag of groceries from the cart, took one step backwards into an unseen pothole, fell, and fractured her left foot.
Tip: It helped her case that she claimed to not have seen the pothole before her fall. Less fault may be placed on her, which keeps the full value of the case higher.
Ms. Turner claimed that she then drove herself home and never personally reported the accident to Winn-Dixie. Since the date of the incident the entire parking lot was resurfaced and repainted and no evidence of a pothole remains.
There were no witnesses
There were no witnesses to the incident. No witnesses had actually seen the actual pothole that caused the injury except Ms. Turner.
However, a Winn-Dixie manager testified that he had a recollection of potholes existing in the parking lot immediately in front of the store prior to the time of its repavement.
That testimony raises an issue as to whether Winn-Dixie had constructive knowledge of a dangerous condition that resulted in Ms. Turner’s injuries.
Winn Dixie tried to get the case dismissed. The appeals court denied Winn Dixie’s request, and said:
Potholes are different from sidewalk curbs or joints between different surfaces
“A pothole is clearly different from an ordinary sidewalk curb or a joint between concrete and asphalt.
A pothole is a part of the asphalt which has fallen into disrepair, a part of the asphalt which has deteriorated substantially from its original condition. If the parking lot was in a state of disrepair, the condition may well have been at least a contributing cause of the accident.”
Pothole Case is Like a Uncapped gas valve box cover claim
The appeals court mentioned the case of Ayers v. City of Miami, 578 So.2d 302, 304 (Fla. 3d DCA), 591 So.2d 180 (Fla. 1991), which was a case involving an uncapped gas valve box cover.
In that case, the court said that “the fact that the plaintiff knew of the condition goes to his comparative negligence, and not to the defendant’s liability in the first instance.
Back to the Winn Dixie case…
The appeals court said that the case cannot be dismissed on the basis that Winn-Dixie did not have constructive knowledge of the pothole.
It said that given the manager’s admission of the existence of potholes in the parking lot at the time of the accident, a jury question exists as to whether the hole in question existed for such a period of time that discovery of it would have been made by reasonable inspection.
The injured lady’s case was allowed to continue to trial. The case is Turner v. Winn-Dixie Food Stores Inc.,651 So.2d 827 (Fla. 5th DCA 1995). This was a victory for her. I don’t know if the case later settled and, if so, for how much.
Pothole is not a natural condition
In your demand letter to the landowner’s insurance company, you should say:
“A pothole is not a natural condition, nor does it create a reasonable risk of harm. A pothole forms when a landowner fails to maintain the property; it is a portion of pavement that has fallen into disrepair.”
If a pothole is obvious, it does not automatically make it a reasonably safe condition.
What happens if a business has a contract that requires that landowner to maintain the parking lot?
You still may be able to sue both the landowner and the business.
For example, assume that CVS has a lease with a landowner that requires the landowner to maintain the parking lot.
CVS may still be liable to an invitee if she falls in the pothole. This is because CVS may exercise control or implied authority over a piece of property by inviting people to use the property in a particular manner.
CVS may be responsible to invitees in the same manner as the owner. So both CVS and the owner may be on the hook.
These are the facts of an actual Florida pothole accident case. The case is Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012).
Who decides whether a tenant has the ability to manage and control an area that may have a pothole?
A tenant’s ability to manage and control an area is a question of fact for a jury to decide.
Moreover, a commercial tenant may have a duty, independent of the landlord’s duty, to maintain premises in a reasonably safe condition regardless of whether the landlord has contractually assumed responsibility to maintain the premises.
A commercial tenant is a business that leases property. A few examples of commercial tenants in Florida may be:
- Walmart Stores
- Publix Supermarkets
- Target stores
- CVS
- Home Depot
- Walgreens
- Winn Dixie Supermarket
- Hotels, resort and motels
- Restaurants like McDonald’s, Burger King, Subway
Should you hire a lawyer if you stepped into a pothole and were hurt in Florida?
If you stepped into a pothole on someone else’s property and are hurt, I definitely recommend hiring a lawyer. An attorney who has experience handling pothole accident claims knows how to build a case.
What if the adjuster is being nice to you?
Do not mistake nice for paying a claim. I get called all day long from people who trip and fall and start off dealing with the landowner’s insurance company.
They say that they thought that the insurance company would do the right thing. But when the insurance company denies liability or offers a small amount, they call us.
Don’t be one of the people who tries to settle your case before contacting a lawyer. By that time, you may have given the adjuster information that may sink your case.
You may not even know that what you are saying is killing your case.
Who is the best Florida lawyer for a pothole accident case?
Florida attorneys aren’t ethically allowed to say that they are the best pothole accident attorney. So be cautious if a lawyer says that he is the best Miami pothole accident lawyer or best Florida pothole accident attorney.
You should ask the attorney if he has settled pothole accident cases before. You should also ask an attorney if he only handles personal injury claims.
I only recommend hiring a lawyer who only handles personal injury cases. Choose one with over 10 years of experience.
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