while he sat with us as when any other visiting judge they're every bit as much a member of this court and anyone else and they have all the authority responsibilities and assignments that anybody else on the court does so we welcome him here today having said that we'll start with sanford versus omni hotels management mr lust where billy sanford presented testimony of photographic evidence that design factors created a hidden condition is the issue over here condition requiring a warning from omni hotel a question of fact for the jury november five two thousand fourteen mrs billy sanford visited for the first time julie has been for the purpose of eating at the buffet is the sanford testified in a deposition that while walking behind the host across the carpet area she suddenly and unexpectedly tripped and fell and she also testified that her eyes were on the host she was watching him yes she was directly behind him and she was watching him as he led her toward the buffet area and wasn't looking down she was not looking down no she was looking at the host because she was following the host what about their argument and the reason she tripped was she wasn't watching where she was going was a book she was watching mislead her as they walked toward the veranda where the buffet was served however she testified that as she walked in as she followed the host suddenly and unexpectedly she felt afterward she looked down to see what caused her to trip she said that she saw that army hotel in designing this particular area the restaurant used to say multiple colors and horizontal lines that extended across both the carpet and the steps creating a dangerous hitting condition that is the need to step up or so it was after she fell that is correct she didn't testify that as she was walking she couldn't see the steps because she wasn't looking at because of the design and pattern on the steps she did testify that as she walked from the entrance way and following the host that she could see that the carpeted area had certain multiple colors and that it also had horizontal lines and that the same colors and horizontal lines appear to extend up the steps and she knew before she got to the steps it was difficult or dangerous situation no sir what i'm saying is as she walked behind the host across the carpet area she noticed that the carpeted area was of a certain color and h horizontal lines after she fell she looked back to see what caused her to trip and fall and she noticed the same colors in horizontal lines across the steps which gave the appearance that the carpeted area her they walked in the middle of this particular area so the she could not reach out and touch the handrail because it was so far on this on the right side on the left side ching and i'm not i'm not suggesting that once she started falling  she was in any way negligent about the way she fell anything i never suggested that but the hand rail would have been at least men in her peripheral vision if she noticed the carpet as she was walking forward she would have noticed  she kept her eyes on the man who was between her and the handrail would you not i don't think so in the reason i say that is because this particular area that led up to the was approximately twelve ten to twelve feet so the handrails as i said earlier would have been so far over to the left and so far over to the right that when you're walking in the center more than likely you would not notice the hand but that might have been negligent on her part not saying the handrails to be so focused on the back of the well if there was negligence on her part that is comparative fault then that is the issue to be decided by the jury but if the existence of the handrail prevented the optical illusion of fact from being a dangerous condition that wouldn't be decided by the jury i disagree are because first of all there is no overall impression created by the carpet and the padding i'm sorry the carpet in the floor the steps the risers and so forth that determine whether or not there was an optical illusion of uniform  i don't i don't believe that the hand rails would bear on the issue of whether or not there was an optical illusion created by the use of the same colors and the line i don't think that the fact that there were a look from your example being at least forty five degrees if not steeper shows that it's not a level fall no sir not when you're walking in the center and you don't see him i mean as i said earlier she's walking behind the host well one would think that whoever designed this if there was any design behind it would people would not be so focused on the back of the back of the head of the person in front of them that they wouldn't see a handrail on the steps as they were approaching i respectfully disagree on or in the reason i disagree is because i've eaten at the same restaurant myself in those handrails but you didn't you didn't test fine given deposition testimony that is correct that's why i'm not offering can't consider your experience there any more than we could go visit it ourselves and consider our experience when we went there and i think we have to consider my client's testimony and her experience and that this was the first time that she was in this particular area and the host led her to the area where the buffet was being served and she testified that as she walked along the carpet she saw a design pattern that is the same colors and these horizontal lines that extended across the carpet and also up the steps and therefore make counsel it's not really what she actually saw that's an actual matter it's how it appeared i'm wondering where these photos came from the photographs were taken by a another person who also was there at the home hotel attending a convention and so at the same time this isn't something that might have been changed since that is correct on the testimony is that it's in the evidence i mean it's it was submitted yes or so we all agree that the payroll shown in the photograph or are what was there at the time your client fell down isn't is that right that's correct it's frustrating to me at least that's the quality of photographs we have and this  case you know we try to find if the originals in the record in the district court which is part of our record of course were any better and they weren't and the two that a same's i don't know when your client got legal representation but it seems like someone could have taken better photographs in there i mean you can't tell anything from this other than the fact there was a hand rail and you can tell the approximate doubts but it all looks like a white cloud to me well my clients testimony is that when you look at the carpet and you look at the  steps as depicted in the photographs because the same design pattern the same colors extend across the carpet in the steps she contends that it created the hidden condition that is the need to step up your best argument is your client testified on page one i was seven of the deposition of what caused you to fall the fall in though i think i was pretty explicit ok other than you know the carpet and everything else all blended and looked the same which is very confusing probably to me of thinking that everything was still on the same level that's about it and then she said because if you look at the pitch of the steps in the carpet it just looks all but your best argument is she testified that the carpet and everything else that she saw all all blended in not that she saw before she fell for that she saw after she fell am i correct if you camouflage that there were steps there because of the way it looked so the steps in the carpet looked the same that's more details about what it looked to her after she had fallen backwards on the steps she looked  them so that's that's your best that to me is better than the photographs and well and in addition to that your honor i think we also have to consider her testimony that on page ninety three lines while she thought she still was on the carpet when she struck her left foot that turned out to be a step and then her testimony was i felt that the carpet in walking at the level had not changed i was still on the same level and basically that's why i tripped because it was just to me it all looked like it was all the same so that's her testimony as she walked over it and i had thought it was different maybe i would have done something differently but everything just like the sign that page ninety four actually right is page ninety three and it extends on the page ninety four lines one through seven and that's her testimony that as she was walking from the entrance way and following the host that's her testimony or testimony is enough to get her past day to state a cause of action but to actually submit proof in this case in the summary judgment to get a jury there needs to be something more other than a plain of u assumed that ms sanford appreciated her failed to appreciate the steps despite the fact that she was falling inches behind the fellow a gentleman walking up the steps the hand rails and all those other issues i think the court decided is that when there is a claim of a they are duty to warn under these circumstances and an open and obvious condition there needs to be some proof that there is uncommon design or mode of construction or some type of optical illusion that her testimony is there was an optical illusion i mean use that term but that's what it amounts to yes or i think the florida law requires more than a plaintiff's something in addition to a plaintiff's mere perception and statements on the rare she appears to have something like that in these photos to me first time i looked at this photo i thought that looks like a whole bunch of well i think  step with the same color for rug is not enough but this is more than a mere step even in bad light with the same color it's it's mere steps that  designed or lined or whatever you call it in a way that will cause some people to look at that and say i'd be confused by that or and why and you know if i'm not that person oh it's jury can look at them and it's unfortunate that they're poor quality i'm surprised there's any photos at all in the situation just happenstance that some somebody else took a picture you know women who would do that time i mean these were taken at the instance of somebodies lawyer later they're just photographs that somebody took that right so that's something more i'm thinking why isn't that something more the district court found that the photograph showed nothing other than that there were handrails present and we can see what area autograph show we're looking out of when i look at it it looks confusing just me you have to kind of look at both of them there's two photographs why right took me five ten minutes to kind of see what these actually show what it looks like is is a parade of steps and when you look at this close up the part that step under the handrail i guess is what it is and the part that's not with the handrail looks almost identical so these photos might convince a reasonable juror to say that this was misleading or caused her to step wrongly that's all you need right to get to a jury well under these facts judge i believe for a lot requires something additional then photographs or statements of the plaintiff there needs to be and sixteen and those are cases saying because there was no it's expert evidence you can't get to it you can't you can't make out a cause of action in florida on this type of that's right but in rice just to get your response to the the courts that expressly there isn't in here however there is no evidence of uncommon designer mode of construction or an optical illusion there is no proof i believe and so that's what led to the the further requirement for the expert as it was my understanding of and rice i believe the point of testified that the pink square tiles with the crowd all lined up consecutively from one level of the floor to the other created this illusion that there was a illusion of flatness for lack of better term and that was a record that the court addressed and  crowd all lined up similar to the white case i believe there's actually a photograph in the white opinion showing that the landing area was of the same color and texture of the grain going the same way of the wood landing on the that's where a house was designed such that the kitchen table or dining table was placed over a change of elevation on the floor those are cases where there was expert testimony no sir there was no indication in those opinions that there was but the issue in those cases was that the stairs were concealed in some fashion or that a defendant should have known that a patron's vision or observations would have been distracted again not doesn't qualify as an actual actionable at least optical illusion correct i believe that is consistent among the florida district  more of a design i read a case the same way you do that's not what we have here of course but i want to ask you why is that not actionable but quite lines uniformly space throughout the carpet are i don't understand why how it's possible that an ocean of by is the last optical know that florida courts have held that an optical illusion can exist when you have more than just the same color extending from the floor and over the steps i understand but what makes more then uniform color more deceptive to the person walking on it as to whether there's any steps and that why is it more deceptive to the reasonable person of ordinary prudence who is walking on the floor to have a line sent patterns that blend together then to have a color that blends perfectly together for its entire expanse i believe that it is color and in addition to that another design factor as in this case the horizontal lines and in the fact that they extend it across the carpet and up the stairs and it is all of those factors as opposed to just a single color so you're basically just restatin and so we take it then that that's just the way florida law is and there's no rhyme or reason we can detect it just is well your honor i'm i'm stating the facts in this case and i'm stating what my client rule it might help to know what the purpose of that distinction is and i just can't see it and perhaps i should just respond saying i don't further have any answer to your inquiry it's not your burden come up with one i just thought you might have spent more time on this case and i have you and well i can tell you that i know why you just don't say camouflage involves lines well i never see anything you never see anything that's camouflage this just solid her rarely i've seen pictures of soldiers and desert warfare that are solid color of beige and it camouflage is beautiful understand maybe there's just so much solid color out there that the florida courts have made a policy decision we can't hold everybody responsible for solid colors premises liability case based on negligence and the failure to warn as a matter of fact in my brief i have cited from pages seven through twelve several cases where florida courts have reversed trial course they granted summary judgment or dismiss complaints and those cases the courts have ruled that the issue of a hidden condition requiring a warning from the property owner is a question honor i believe that was pensacola restaurant supply their expert testimony in their no so well for us no sir i don't believe there was expert testimony in that case if there wasn't that would be a case that supports it absolutely and that's my point florida law says that the plaintiff himself or herself can prove a dangerous condition by simply showing an uncommon design that creates an optical illusion and that that uncommon design creates a hit hidden danger that a prudent invitee would not intice a pay and that's all that's required see there are these cases are supreme court cases they're all well that is correct you honor but in florida the law is determined by the district courts of appeal and hers unless there is a conflict i understand i'm just trying to yes or to answer your question yes or and because you know the supreme court hasn't taken various decisions from the first second third fourth and fifth district court of appeal then if you look at all those decisions they're very consistent and they don't require any expert testimony it is the injured say they don't require they've allowed it to get to a jury without it that is correct thank you next case king versus board