Florida Injury Attorney Blawg

Business establishments owe patrons the duty of ordinary and reasonable care with respect to their safety. See Economy Cash & Carry Cleaners, Inc. v. Gitlin, 1 So.2d 191 (Fla. 1941), and our blog, Status Determines Duty in Florida Premises Liability Cases. To meet this duty with regard to chairs made available to patrons, the establishment must select bullet-proof, industrial grade chairs able to withstand heavy use by heavy people, or have an effective inspection and maintenance procedure in place. See, Fontana v. Wilson World Maingate Condominium, 717 So.2d 199 (Fla. 5th DCA 1998) (The court decided that the jury could have found that the owner's ostrich like approach to the safety of its premises did not meet its obligations to its invitees.)

Continue reading "Florida Business Establishment Liability for Personal Injuries Caused by Broken Chairs" »

While personal injury litigation in Florida courts is not supposed to be a game of "gotcha," or trial by ambush, Surf Drugs, Inc. v. Vermette, 236 So.108, 111 Fla.1970," unless attorneys pay careful attention, it can happen in their cases. One of the ripest areas for this gamesmanship to occur is in the use of accident videotape.

Premise liability defendants often have videotape of the accident. Rarely is it produced presuit, even when doing so might head off a lawsuit. Proof that tried and true policies aren't always the best. Even during suit, defendants resist turning over the tape. In the hope of catching Plaintiffs giving testimony inconsistent with the events captured on tape, even if the inconsistencies are based on a lack of clear memory or a lack of knowledge, rather than untruthfulness, they want to question plaintiffs before producing the accident footage.

Continue reading "Florida Personal Injury Litigation: Avoid Being Tricked by Defendants -- Obtain Accident Videotape Footage" »

Most business establishments today maintain some form of video surveillance to capture events, including accidents and assaults, that happen in and around their property.

The key to resolving premises liability claims fairly to all concerned -- the injured person and the property owner -- is by determining fully what happened.

Frequently, the information has been captured by the videotape camera(s).

Since the videotape is always in the hands of the target defendant, shouldn't it always be made available to the plaintiff? The answer is, It depends.

In Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012), the appellate court ruled that the defendant was not obligated to preserve the videotape of the accident without a request from the plaintiff. It ruled this way even though the defendant knew immediately of the accident and it was reasonably foreseeable the plaintiff would bring a claim to be compensated for her serious wrist injury (which required two surgeries and needed at least one more). By the time the request was made, after pre-suit negotiations had failed, the videotape had been deleted.

Continue reading "Key Issue in Florida Premises Liability Law -- Obtaining Video Surveillance (or Getting a Spoilation Jury Instruction)" »

By failing to comply with statutory (and regulatory) (deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973)), industry (Seaboard Coast Line R. Co. v. Clark, 491 So.2d 1196 (Fla. 4th DCA 1986), and company safety standards (Steinberg v. Lomenick, 531 So.2d 199 (Fla. 3d DCA 1988), rev. denied, 539 So.2d 476 (Fla.1988) and Mayo v. Publix Super Markets, Inc., 686 So.2d 801 (Fla. 4th DCA 1997)), financial institutions can be held accountable in civil damages to those whose injuries and death -- decedent's survivors are compensated -- were proximately caused by crimes associated with the use of ATMs and night cash depositories.

Statutes & Regulations
Florida Statutes 655.960-655.965 contain some safety standards, but are limited in impact by 655.961, which provides: "A violation of the provisions of ss. 655.960-655.965 or any regulation made pursuant thereto does not constitute negligence per se." Electronic Funds Transfer Act (Regulation E) and the Bank Protection Act (Regulation P) (12 CFR Section 216.1) are federal laws dealing primarily with matters related to the security of the ATMs themselves and to fraudulent transactions, rather than to ATM users' safety.

Industry Standards

• Adequate lighting at and around ATMs. The typical minimum standards, including some mandated by law, are 10 foot-candles within five feet of the ATM, and two foot-candles 50 to 60 feet away from the ATM, measured at three feet above ground (Ellis 1996; CUNA Service Group 1999; Illinois Office of Banks and Real Estate 1999). Because these standards can leave gaps in coverage due to factors such as shadows, light-source direction, a qualified lighting designer should plan ATM lighting.


• Landscape and design for good visibility. Use slow growing shrubbery and plants and trim often. Objects that obstruct views, such as dumpsters, should be removed. Hidden alcoves should not be used.


• Install mirrors on ATM and in surrounding areas.


• Install ATMs where there is natural surveillance. In places with a lot of routine vehicle and foot traffic. Experts recommend visibility from three sides.


• Install ATMs in police stations.


• Relocate, close or limit hours of operation in high risk locations.

Continue reading "Proving Negligence in Florida Against Banks for ATM Crime-Related Injuries/Death" »

Comparative Fault -- see Florida Statute 768.81 --and the Open & Obvious Doctrine are legal concepts that play a role in many premises liability cases.

Under the principle of Comparative Fault, the jury is asked to apportion fault among the parties to a lawsuit, plaintiff and defendant(s), and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury's] verdict. Interestingly, a jury verdict is not the same thing as a final judgment, issued by judges, and the final numbers between the two can be significantly different.

Here is a rudimentary example to demonstrate the interplay between verdicts and judgments, and illustrate the principal of comparative fault: Mr. Jones, while visiting a friend's condominium complex, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and transports Mr. Jones to the hospital. The underground lot is owned by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and has caused other accidents. Unable to settle out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury. (In most cases, the judge has much more to consider than simply performing basic math in reaching a final judgment.)

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be completely barred from making any recovery if it was determined that he or she was at fault in any way, even only 1% at fault. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.

Continue reading "Comparative Fault and Open & Obvious Doctrines in Florida Premises Liability Accidents " »

Due to flawed record keeping, it is impossible to know with confidence how often violent crimes -- murder, kidnapping, battery or robbery -- are committed in Florida in conjunction with obtaining cash involuntarily from a victim's ATM. Most law enforcement agencies do not maintain a separate category for ATM crime. Instead, it is listed in more general categories such as robbery, homicide, and sexual battery/rape. The Universal Crime Report (UCR) forms do not have a place to note that a forced ATM withdrawal has taken place.

Despite the lack of information, ATM-related crime is believed to be high. Put another way, ATM-related crime is foreseeable.

The foreseeability of a harmful event happening is an essential element of every personal injury case. For a defendant to be held accountable under civil tort law, the victim, or Plaintiff, must prevent evidence on the issue of foreseeability.

Crime statistics are a way of proving foreseeability in civil tort actions for injuries or death resulting from inadequate security or safety measures. See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 - Fla: Dist. Court of Appeals, 3rd Dist. 1980.

Continue reading "Violent Crime and Florida ATM Premises Liablity Law" »

The initial question in every premises liability personal injury case concerns the concept of duty. What degree of duty did the landowner (or possessor) owe to the person injured to prevent the accident? Because the next inquiry concerns whether the duty was breached, the answer to the initial question often determines the outcome of these cases. Where no duty is breached, no fault lies. Sometimes the answer to the initial inquiry is clear, sometimes it is not. Due to its importance, duty is frequently litigated although not as much as the issue of breach.

The extent of the duty depends on the person's status on the property at the time of the accident. The following outline sets forth the various status categories recognized under Florida law and the duty owed under each.

• Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Family in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (For a fuller understanding of subsection (2), search our blog using the term "Open and Obvious." Landowners like to claim that because a condition is open and obvious, there is no duty to repair it. This is sometimes correct, but not always.)
• Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
• Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
• Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers using a private parking as an ad hoc party location.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed "traps" of which the owner has actual knowledge).
• Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

Continue reading "Status Determines Duty in Florida Premises Liability Cases " »

Must a landowner warn a visitor to the property of an open and obvious pothole? Probably not. Does a landowner have a duty to repair the pothole? Probably.

In Burton v. MDC PGA Plaza Corp., 78 So.3d 732 (Fla. 4th DCA 2012), the plaintiff was seriously injured when, while loading a vehicle, she stepped into a pothole, tripped, and fell to the ground. The pothole was approximately one foot wide and two inches deep. The plaintiff conceded that she knew about the pothole before she fell.

Because the plaintiff knew about the pothole before she fell, the court ruled that the plaintiff could not maintain an action against the landowner Defendant MDC or its tenant, CVS. Summary judgment was granted for the defendants.

Continue reading "Potholes and Florida Personal Injury Law" »

Success for the victim of a premises liability accident requires that he or she prove the defendant knew or should have known beforehand of the existence of the dangerous condition which caused the accident, and that the accident was foreseeable.

One of the most effective ways of establishing these elements is through similar prior accidents.

Most business establishments prepare incident reports following accidents. The reports contain accident details along with the victim's name and contact information.

Once a lawsuit is filed, the Florida Rules of Civil Procedure allow the parties to obtain case relevant information, also known as discovery, from each other and non-parties. Subpoenas, depositions, and document requests are the common methods of obtaining information.

Typically, the prior incident reports themselves are not discoverable based on the privilege doctrine of being prepared in anticipation of litigation. However, defendants must provide detailed information about prior accidents, including victim names and contact information, date and location of incidents, and some description of what occurred. Publix Supermarkets, Inc. v. Martin, 739 So.2d 174 (Fla. 2d DCA 1999).

Continue reading "Relevance of Prior Similar Accidents in Florida Premises Liability Cases" »

Under Florida law, the duty owed by landowners and/or those in control of properties to individuals other than employees - injuries to employees are governed by Florida's workers' compensation system (see Chapter 440 of the Florida's Statutes) - depends in part on the individual's purpose for being on the property.

Florida divides the status of individuals on property into five categories. This blog lists the categories and the duties owed under each category.

Continue reading "Florida Premises Liability Standards for Accidents Causing Personal Injuries " »

Premises liability lawyers, both Plaintiff and Defense, know that evidence of prior accidents or events may, by a showing of substantially similar conditions, be admissible to prove one or more elements of a case. Less well recognized is that no-accident history may also be admitted into evidence for a variety of purposes.

No-accident history may be admissible to show: (1) An absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.

Relevant cases

• Springtree Props., Inc. v. Hammond, 692 So.2d 164, 165 (Fla.1997) (considering absence of similar accidents in determining whether fact issues remained)


• Cent. Theatres v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944) (evidence that for several years there had been no accident from shooting at location admissible);


• Lewis v. Sun Time Corp., 47 So. 3d 872 3rd (Fla. 3rd DCA 2010) (allowed evidence of no-falls on wet terrazzo steps since the hotel was opened in 1937)


• State, Dep't of Transp. v. Patterson, 594 So.2d 830, 831 (Fla. 4th DCA 1992) ("[A]ppellant was entitled to have the jury consider that the records it still maintained revealed no bicycle accidents in the tunnel prior to the present accident.")


• McAllister v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989) (relying in part on evidence that no one had fallen over the concrete blocks at issue during the preceding seventeen years)


• Doe v. U.S., 718 F.2d 1039, 1043 (11th Cir.1983) (applying Florida law and approving evidence that for a number of years before the incident, there had never been a crime against a person committed on the premises)


• Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590, 594 (Fla.1974); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983) involving the admission of testimony concerning the prior safety history of the site in question, that is, previous accidents or their absence


• Lawrence v. Fla. E. Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) ("[D]eterminations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge.")


• Friddle v. Seaboard Coast Line R.R. Co., 306 So.2d 97 (Fla.1974); Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Hogan v. Gable, 30 So.3d 573, 575-76 (Fla. 1st DCA 2010); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); but cf. Godfrey v. Precision Airmotive Corp., 46 So.3d 1020 (Fla. 5th DCA 2010); Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010) (concluding "the dissimilarities of these cases are greater than their similarities")

Continue reading "Florida Premises Liability Law Allows Evidence of No Prior Similar Events" »

McCall vs. Alabama Bruno's, Inc., 647 So.2d 175 (Fla. 1st DCA 1994): Florida follows the general rule that the employer of an independent contractor is not liable for the contractor's negligence because the employer has no control over the manner in which the work is done, except when one of three exceptions apply. Those exceptions involve:

1. Negligence in selecting, instructing or supervising the contractor;


2. Non-delegable duties arising out of some relation toward the public or the particular plaintiff;


3. Work which is specially, peculiarly, or "inherently" dangerous.

Peculiar does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk, but instead refers to a special recognizable danger arising out of the work itself. In order for the vicarious liability rules to apply, it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk to those in the vicinity. It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A "peculiar risk" differs from common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. Restatement (2d) Torts Sect. 416. Rules imposing vicarious liability on employers for the acts of independent contractors arise "in situations where, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor" and it is commonly stated that "the employer is under a duty which he is not free to delegate to the contractor." Nondelegable duties have been found under Florida law to arise out of "inherently dangerous activity," activity involving "inherently dangerous elements," or out of the creation of an "inherently dangerous condition."

Webb vs. Priest, 413 So.2d 43 (Fla. 3rd DCA 1982): The general rule in Florida is that an owner is not liable for the acts of an independent contractor except when (a) the activity is inherently dangerous (see Ferguson vs. Westinghouse, 408 So.2d 659 (Fla. 3rd DCA 1981)); (b) the owner/employer had contractually assumed responsibility (Levitz vs. Continental Equities, 411 So.2d 221 (Fla. 3rd DCA 1982)); (c) there is legally imposed responsibility (Concord Florida vs. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1977)); (d) the owner/employer knew or had reason to know that the independent contractor would not perform in a satisfactory manner (Williams vs. Wometco Enterprises, 287 So.2d 353 (Fla. 3rd DCA 1974)); (e) where the independent contractor had apparent authority to act on behalf of the owner/employer (Thomkin Corp. vs. Miller, 156 Fla. 388, 24 So.2d 48 (Fla. 1945).

Continue reading "Case Law Summary of Florida Employer v. Independent Contractor Liability" »

Whether a person injured on real property owned or controlled by another will be successful in bringing a claim for damages, depends in large part on the injured person's status on the property at the time of the accident. The general categories and the duty owed under each are set forth in the following outline:

• Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)


• Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.


• Licensee By Invitation. A social guest. Duty: same as for Public Invitee.


• Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed "traps" of which the owner has actual knowledge).


• Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

Independent contractors injured on the premises do not fit squarely within any of these categories. As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work. As the Supreme Court observed in Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973): if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable.

A second line of cases bars the claims of independent contractors whose injuries were sustained while performing the independent contractor's specialized work. In Morales v. Weil, 44 So. 3d 173 (Fla. 4th DCA 2010), the contractor was hired to demolish a barn with a roof damaged by two hurricanes. The damage was obvious and included a hole through the roof that was visible to the employees. However, in the course of the work one of the employees fell through a weakened roof panel and was injured. The Fourth District reviewed the applicable law and affirmed a summary judgment for the barn owners. The Court concluded that "the [owners] were in no better position than the [injured contractor employee] to assess the level of danger that the job posed. Consequently, the [owners] owed him no duty to maintain the roof in a reasonably safe condition." Id. at 179.

Continue reading "Florida Premises Liability Law - Duty Owed to Independent Contractors" »

Florida premises liability law is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises. It is a negligence-based system, meaning that responsibility is apportioned in accordance with fault. This is known as the concept of comparative fault. See Florida Statute 768.81, entitled Comparative fault.

Under this system, the jury is charged with determing fault among the plaintiff, the defendant, and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury's] verdict.

A jury verdict is not the same thing as a final judgment. Only judges render final judgments.

In rendering final judgments, judges consider a variety of factors. The jury's findings regarding fault and damages are two of the most important factors.

A simple example, without consideration of any factors other than the jury verdict, will illustrate how the system works: Assume that Mr. Jones, a visitor to a friend's condominium, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and he is transported to the hospital. The building and lot are controlled by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and caused many other accidents. Unable to settle his case out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury.

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be barred from any recovery if it was determined that he or she was at fault in any way, even only 1%. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.

Continue reading "Florida Premises Liability Law - Comparative Fault and Open & Obvious Doctrine" »

Companies and individuals in possession or control of real property have a nondelegable duty to keep that property in a reasonably safe condition. Liability for personal injuries caused by a breach of the duty cannot be avoided by hiring an independent contractor to maintain the property in a reasonably safe condition.

A recent example was reported in the Florida appellate case Armiger v. Associated Outdoor Clubs Inc. (Fla. App., 2010). Mr. Armiger sued Associated and Clean Sweep Supply Company after he slipped and fell in a puddle of water in the grandstand of a greyhound track operated by Associated. Although Associated had contracted with Clean Sweep to clean and maintain the areas of the facility -- including the grandstand -- that were open to the public during racing performances, Associated was held to answer for Clean Sweep's alleged acts of negligence.

The duty to maintain adequate security also is nondelegable.

Continue reading "Nondelegable Duty of Florida Landowners to Maintain Safe Premises" »