Frazier v. Panera, LLC

Fifth DCA

Frazier v. Panera, LLC
5th DCA
Premises Liability; Slip and Fall

This is a premises liability slip-and-fall case.

Frazier and her husband parked their vehicle in a Panera’s parking lot. Panera is a salad/bread/sandwich restaurant chain. They exited their car with the intent of walking into the Panera, but as Mrs. Frazier walked up onto the sidewalk, she tripped on a “weighted base” that is normally used for holding a sign in place. This base had no sign or pole inserted, so it was essentially a heavy lump on the sidewalk.

Panera moved for summary judgment, arguing that the sign base was open and obvious and, therefore, Panera had no duty to warn its invitee of the hazard. The trial court agreed and entered summary judgment against the plaintiff. She appealed.

The DCA reminds us that a landowner and occupier owes two distinct duties to invitees: (1) to give warning of concealed perils which are known or should be known to the owner, but which are not known to the invitee, and (2) to maintain the premises in a reasonably safe condition.

Here, the trial court held that the danger was “open and obvious,” not a “concealed peril,” because it was black and the sidewalk was white and it was a sunny day where the sign base would be visible if one was looking down. Frazier failed to look down as she walked. That did not matter to the DCA, which saw the issue less in terms of physical concealment and more in terms of whether the sign base was something one would normally encounter. The DCA stated:

Many cases cited by the court and Panera involving uneven pavement, traffic bumps, landscape features, and steps within business premises or residences were decided in favor of the defendant on the grounds that the conditions were a matter of common knowledge or everyday life. The same cannot be said for the weighted sign base in this case. A weighted base without a sign attached to it is not so common that people encounter it on a daily basis.

Part of what makes this not something that is open and obvious is that it is so low to the ground and not in a place one would normally look for obstructions. The base was located on the entry way into the restaurant. The employees had just removed the sign portion and were soon coming back for the base, which indicated “that it was not intended to be left there in the first place.” All of this constituted a genuine issue of material fact on the question of whether the base was open and obvious. Thus, this is a great case to cite to shoot down an “open and obvious” defense if the hazard was something unusual or out of the ordinary or unexcepted.

The DCA stated that even if the base were open and obvious, that did not resolve the question about the SECOND duty of a landowner. There is a genuine issue of material fact as to whether leaving the base out there unattended without a sign sticking out of it meant that the landowner created a hazardous condition and failed to maintain the premises in a safe condition. Whether the hazardous condition is open and obvious does not matter for the second duty except for purposes of comparative negligence.


Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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