Can an uncommon design or mode of construction that creates an “optical illusion” on property create an issue of fact for a premise liability claim?  According to the Third District Court of Appeal in Echevarria v. Lennar Homes, LLC, 45 Fla. L. Weekly D1567a (Fla. 3d DCA 2020), the answer is yes.

When it comes to a premise liability claim: “‘A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.’”  Echevarria, supra, quoting Racamonde v. Marshalls of Ma., Inc, 56 So.3d 863, 865 (Fla. 3d DCA 2011).

In this case, the plaintiff was visiting a model home from a homebuilder.  As she was exiting the home, she could not see the step down from the raised front porch to the adjacent walkway.  The plaintiff claimed this created a dangerous condition that she should have been warned about because it created an optical illusion  as “the [adjacent] walkway and [raised] porch were both ‘covered by the same colored brick pavers’ and the porch ‘blended in perfectly with the adjacent walkway, making the step invisible to the naked eye as you exited the home.’”   Both the plaintiff and homebuilder provided expert reports as to the condition.  One of the plaintiff’s experts opined that the landing of the adjacent walkway at the stair was not compliant with Florida’s building code and, as such, this concealed the step’s presence, i.e., created the optical illusion.  Notwithstanding, the trial court granted summary judgment against the plaintiff finding that the condition was open and obvious and not inherently dangerous.

The Third District Court of Appeal reversed finding there was a question of fact for the jury whether the homebuilder “through an uncommon design or mode of construction, created a hidden danger on its property [i.e., an optical illusion] that a prudent invitee would not anticipate.”  Echevarria supra.   The reason being is that “‘an uncommon design or mode of construction creating a hidden danger that a prudent invitee would not anticipate may transform multiple floor levels into an inherently dangerous condition.’”  Id. quoting Rice v. Whitehurst, 778 So.2d 1027, 1028 (Fla. 4^th DCA 2001).

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