FLORIDA PREMISES LIABILITY LAW
The personal injury law that applies when a property owner negligently causes injury to someone on their property and that person brings a lawsuit is commonly called premises liability law. This guide will help you understand Florida Premises Liability Law.
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TYPES OF PREMISES LIABILITY CASES
The only qualification to categorize a personal injury case as a premises liability case is that the event happened on property. As a result, there are a wide variety of premises liability cases. Common ones are:
- Slip and fall accidents
- Trip, fall and misstep accidents
- Dog bites
- Negligent or inadequate security
- Elevator and escalator accidents
- Swimming pool accidents
- Landlord, tenant and rental property accidents
- Falling objects
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PREMISES OWNERS OR POSSESSORS LEGAL RESPONSIBILITIES
It’s a common myth that a premises owner is responsible for all injuries that occur on their property. This is simply not true. In fact, injury is not enough. Even having an unsafe condition on the property is not enough. Instead, a property owner is only required to maintain their property in a reasonably safe condition. What constitutes reasonably safe will depend on the particular circumstances of the person on the property and how dangerous the condition is. Furthermore, the unsafe condition has to cause or substantially contribute to a person’s injury.
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POSSESSION AND CONTROL OF THE PROPERTY
The premises owner is not the only one that can be held accountable for unsafe conditions causing injury on the property. The legal duties of property owners also apply to anyone in possession or control of the property. In Bovis v. 7-Eleven, the Florida court held that if a person or entity has the right to control access to the property then they are just as responsible as the property owner to maintain the premises in a reasonably safe condition. For this reason, more than one person or entity can be legally responsible for the damages that are caused. You can read more on this topic in the case of Metsker v. CareFree.
INVITEES, LICENSEES, AND TRESPASSERS
In the case of Wood v. Camp, the Florida Supreme Court decided that the duties and responsibilities of an owner or controller of property for keeping the premises reasonably safe varies depending on the category of person injured. In Wood, the Court outlined 3 different categories of people that enter onto property. Those categories are invitee, licensee, and trespasser. Whether a landowner or possessor will be responsible for injury caused by an unsafe condition will depend on which category applies to the person injured.
An invitee is someone that is either expressly invited onto the premises or impliedly invited onto the premises by the owner or controller of the property. Since invitees are invited onto the property, the owner or controller has the highest responsibility to them. Typical invitees are people entering business establishments such as retail stores and grocery stores. Invitees also include guests that are invited to a private home or rental property.
In Florida, to hold a property owner or possessor legally responsible for personal injury damages to an invitee, the property owner or possessor must violate one of three duties. According to Florida premises liability jury instruction 401.20, those duties are
- To maintain the premises in a reasonably safe condition;
- To correct a dangerous condition the landowner either knew should have known existed; and
- To warn of a dangerous condition.
A licensee is a person who chooses to enter a premises solely for their own convenience without being invited expressly or by implication. Charterhouse v. Valencia Reserve gives multiple examples of a licensee. For example, a licensee is a person walking across a shopping center parking lot late at night as a shortcut when the shopping center is closed. Another example is a person that steps off a public sidewalk onto a neighbor’s lawn while walking a dog. In both of these cases, the person chose to enter the property to benefit themselves but there was no invitation to enter by the property owner and the property owner was not aware they were on the property.
An owner or controller of property has three duties to a licensee. According to Lukancich v. City of Tampa, those duties are to:
- Refrain from wanton negligence or willful misconduct which would injure a licensee;
- Refrain from intentionally exposing the licensee to danger; and
- Warn a licensee of a defect or condition known to the owner or controller of the land when the danger is not open to ordinary observation
There are three key differences between the owner or controller of properties duties to an invitee versus a licensee. First, there is no duty to a licensee to fix unsafe conditions. Instead, the property owner only has a duty to warn licensees of dangerous conditions. Second, the duty to warn a licensee only comes into play when the owner or controller of the land actually knows the dangerous condition exists. Third, the duty to warn a licensee only exists if the condition is not open and obvious.
The bottom line is that if the condition is open and obvious, the licensee will rarely if ever be able to hold the property owner or possessor responsible for their personal injury. The one limited circumstance would be if the property owner or possessor intentionally, willfully, or wantonly caused harm.
Florida law 768.075 controls a property owner or possessor’s duties to trespassers. The statute breaks down trespassers into two categories. The first category is an undiscovered trespasser. This is basically someone the property owner does not know is on the property. According to the statute, the property owner or possessors only responsibility to undiscovered trespassers in Florida is to refrain from intentional misconduct that causes injuries. This means there is no duty to warn an undiscovered trespasser of dangerous conditions.
A discovered trespasser is someone the property owner or possessor detected was on the property within 24 hours before the accident. For these individuals the property owner must refrain from gross negligence and intentional misconduct and warn of known dangerous conditions that are not open and obvious.
PREMISES LIABILITY LAW THAT APPLIES TO INVITEES
Florida has made it very difficult to succeed in prosecuting a personal injury case involving a licensee or a trespasser. But there are many ways to hold a property owner or possessor responsible for damages to an invitee.
Proving the Condition was Dangerous
The first step is proving the condition was dangerous. There are several ways to prove a condition on the premises is dangerous. The first way is to show the specific condition on the property has caused injury in the past. Most times there isn’t any such evidence either because no one has come forward after being injured or the condition simply has not caused injury to someone in the past. Thankfully, Florida courts have recognized other ways to show the condition on the property was dangerous.
The main way to show that an owner or controller of property should have known a condition was dangerous is to put forth evidence it was foreseeable the condition could have injured someone. As the Florida Supreme Court stated in McCain v Florida Power, when a premises owner creates a foreseeable zone of risk, the law will require the premises owner to either eliminate the risk, lessen the risk, or take precautions to protect others from the harm the risk poses. Furthermore, as the court in Paterson v Deeb stated, the fact that a particular kind of accident has not yet happened doesn’t mean the entity in possession of the property could not anticipate it happening. Therefore, the absence of prior injury does not relieve a defendant from responsibility for foreseeable consequences of its acts.
The condition happened with regularity
Another way to show it was foreseeable that a condition could cause injury is to show the condition happened with regularity. Sometimes showing a condition happens with regularity on similar properties throughout the country can demonstrate the condition is dangerous. Sometimes showing the condition happened with regularity on the premises where the injury occurred can demonstrate the condition was dangerous
The final way to show it was foreseeable that a condition could cause injury is to demonstrate there are industry standards to protect consumers against the particular danger that occurred on the property and the property owner or possessor did not adopt those industry standards. The fact that others in the industry consider a condition dangerous puts the property owner on constructive notice the condition was dangerous.
Open and Obvious Danger Eliminates the Duty to Warn
As the court pointed out in Fenster v. Publix Supermarkets, when a danger is open an obvious to an invitee the duty to warn of the dangerous condition no longer exists. The courts believe there is no reason to warn someone if the person should have been able to see the danger. But the open and obvious danger does not eliminate the owner or controller of property’s duty to maintain the premises in a reasonably safe condition. This means the owner or controller of property still must correct open and obvious conditions it knew or should have known exist.
An example of this occurs when there is a pothole in a parking lot. The pothole is open and obvious even if the invitee on the property does not see it and steps into it. So, the property owner does not have to warn invitees that the pothole exists. But, as the court noted in Turner v. Winn-Dixie, a pothole that has been there for some time is a dangerous condition that the owner or controller of the property either knew or should have known existed. Therefore, the premises owner or controller is still responsible for injuries caused by stepping into the pothole because the property owner failed to fix it.
The fact that an owner or possessor of property has a duty to repair dangerous conditions does not eliminate an invitee’s responsibility to be aware of their surroundings. Instead, the law requires a jury to compare any potential negligence of the property owner or possessor to the potential negligence of the invitee that was injured and assign a percentage of responsibility to each. Of course, a jury could decide the invitee was not negligent at all. But if the jury does assign a percentage of responsibility to the invitee, the judge will reduce the amount of damages provided for in the verdict by the invitee’s percentage of fault.
For example, in Burton v. MDC PGA Plaza Corp, the court concluded the fact that a dangerous condition is open and obvious does not eliminate the property owner’s potential liability for negligently allowing the dangerous condition to exist. Instead, it is relevant to a determination of whether the invitee on the property was comparatively negligent.
STATUTE OF LIMITATIONS FOR PREMISES LIABILITY CASES
Every type of personal injury case must be brought within a certain amount of time or the case is forever barred. This is called the statute of limitations. In Florida, the statute of limitations is controlled by Florida Law 95.11. According to this law, all premises liability cases involving personal injury must be brought within 4 years from the date of injury.
EVIDENCE TO GATHER AT THE SCENE
The first thing you should do if you are injured on someone elses property is to make sure your injuries are treated. But it important to note that the scene of the injury hold crucial evidence that will be destroyed if not gathered at the time of the injury. So, if possible, you or someone you know should gather the following evidence if possible:
- Pictures of the property up close and far away;
- Pictures of the dangerous condition up close and far away;
- Pictures that show the lighting conditions at the time of the injury;
- Names and contact information for all witnesses to the event;
- Names of all employees at the scene;
- Fill out an incident report and get a copy of it; and
- Pictures documenting any injury you may have.
SHOULD YOU HIRE A PREMISES LIABILITY LAWYER
If you were hurt on someone else’s property, you should contact a premises liability lawyer to find out if the property owner is responsible for your damages. If you were hurt in any city in Florida, Distasio Law Firm is here to help.