Florida Injury Attorney Blawg

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 - Interplay Between Comparative Fault and Open & Obvious Doctrines" »

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" »

Florida no longer recognizes the principle of joint and several liability with regard to satisfying final judgments rendered in personal injury cases. Under the concept of joint and several liability, one liable defendant could be forced to pay for the fault of other defendants. One of the theories behind the concept is that the damages would not have occurred but for that party's fault, so make each party whose fault formed part of the chain leading to the total damages, liable for the fault of all.

Where one or more of the at-fault defendants did not have the financial means to pay its share of the damages, a defendant could be stuck with paying a disproportionate share of the judgment relative to its degree of fault. This procedure worked to the benefit of plaintiffs, who could turn to any defendant to satisfy the whole judgment. Consider this example: The drivers of a Coca-Cola truck and an uninsured vehicle are found equally at-fault for causing a horrible highway accident resulting in the death of a minor child in a third vehicle. At trial the jury awards damages totaling $5,000,000 and a final judgment is entered in this amount. Under joint and several liability, the Coca-Cola company can be forced to satisfy the entire judgment, although the jury has decided that its driver was only 50% at-fault. With the elimination of joint and several liability by the Florida Legislature, plaintiffs can no longer rely on any defendant to satisfy the entire judgment. Under current law, in my example, Coca-Cola would have to pay $2,500,000 instead of the full $5,000,000 final judgment.

What about when a violent crime is committed and a negligent security case is brought against the property owner and/or party in possession of the property for failing to prevent the crime? As between the property owner/possessor and the perpetrator of the crime, does the property owner get a discount on its liability to the extent of the perpetrator's role in the event? Thankfully, the answer is a resounding No.

Fabre v. Marin, 623 So.2d 1182 (Fla.1993) is the Florida Supreme Court case that requires the allocation of fault among all negligent parties, including the plaintiff. The jury makes the determination and provides its answer on what is called the Jury Verdict Form. The verdict form will contain the name of everyone accused of being at-fault, even those not a party to the lawsuit, and the jury will determine the percentage of fault of each. Each defendant pays no more than its percentage of fault, regardless of whether or not any other at-fault defendant has the financial means to satisfy its share of the final judgment. No longer can the plaintiff look to one defendant to satisfy more than its share of a judgment.

Continue reading "Florida Negligent and Inadequate Security Law and Intentional Criminal Acts" »

I have blogged previously on various topics pertaining to premises liability law (open & obvious doctrine; slip & fall; dog bites; and natural conditions. One topic about which I have not written is negligent security.

Negligent security cases involve harm to residents, guests, patrons and the like through the conduct of a bad actor such as a rapist or a mugger.

One of my previous blogs addresses the general principles of Florida law regarding landowner liability for accidents or events that occur on their property. For the most part, every commercial property owner owes some duty of care to those who enter their property, with the level of care being defined by a particular individual's status on the property (e.g., invitee, invited licensee, uninvited licensee, trespasser). These general principles apply to negligent security cases.

Sadly, rapes and assaults at commercial locations like malls and apartment complexes are events all too common in Florida. Of course, some of these crimes cannot be prevented. However, many could be deterred through reasonable security measures such as improved lighting, beefed up security, video cameras, and eliminating secluded areas.

Continue reading "Negligent Security (Rape/Assault/Murder) Law in Florida is a Creature of Premises Liability Law" »

There is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, of a landowner for dangers presented by natural hazards on the landowner's property. One camp applies the so-called "agrarian rule," which provides that a landowner owes no duty to persons harmed by natural conditions on the land. The other camp applies the principle that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. (See this blog for the meaning of the legal term "invitee.")

(Examples of such natural hazards include: tree roots obscured by leaves; view of sidewalk blocked by foliage; hole in ground covered by tall grass; traffic control device - e.g., stop sign, yield sign - obstructed by tree branches.)

Thankfully, Florida falls into the latter camp.

Continue reading "Florida Premises Liability Law - "Natural Conditions" " »

"Umbrella" insurance is a relatively inexpensive way to obtain significant increases in important insurance policy coverage limits.

Consumers are familiar with motor vehicle and homeowners insurance policies. They are separate policies covering separate and distinct risks. Each has its own policy limits and premium charge.

Umbrella insurance is a distinct coverage that is purchased as a stand alone package to supplement other, separate policies, such as the the motor vehicle and homeowners examples mentioned above.

Example: A motor vehicle policy may provide bodily injury coverage of $10,000 or even $100,000. Separately, the homeowners policy (similar renters insurance is also available) may provide the same coverage limit.

Bodily injury coverage pays for personal injuries and death caused by the insured's negligence. Although $100,000 in coverage is enough in most cases, in some cases it is not nearly enough. Some serious injuries command $1,000,000 and more in damages, while wrongful death damages can reach into the multiple millions. In these cases, the protection afforded by the primary policy is insufficient. This is where umbrella coverage comes into play.

Continue reading ""Umbrella" Insurance Coverage (Florida) - Bodily/Personal Injury" »

Drowning is the leading cause of death of young children and a significant cause of death of medically frail elderly persons in this state. Constant supervision is the best way to prevent drownings. Cognizant, however, that supervision is not always available, the Florida Legislature has devised a statutory scheme designed to deny, delay, or detect unsupervised entry to swimming pools, spas, and hot tubs. The scheme is set forth in Chapter 515 of the Florida Statutes.

In order to pass final inspection and receive a certificate of completion, a residential swimming pool must meet at least one of the following requirements relating to pool safety features:

• The pool must be surrounded by a perimeter barrier that (1) is at least 4 feet high; (2) does not not contain any features which would allow children to crawl under, squeeze through, or climb over it; and (3) is set far enough away from the pool's edge so that a child or elderly person who has penetrated the barrier does not immediately fall into the pool. (The perimeter barrier is required even if the residential yard is surrounded by a fence, wall, or other enclosure unless the fence, wall, or other enclosure or portion thereof is situated on the perimeter of the pool, is being used as part of the barrier, and meets the barrier requirements of the statute.)


• The pool must be equipped with an approved safety pool cover. An "approved safety pool cover" can be manually- or power-operated and must meet certain delineated standards established by the American Society for Testing and Materials (ASTM).


• All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet. "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure - a perimeter barrier (see the first bullet point, above) - is opened or left ajar.


• All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.

A person who fails to equip a new residential swimming pool with at least one of the pool safety features outlined above, commits a misdemeanor of the second degree. This has significance in the context of civil cases arising out of pool accident cases, in that violations of statutes can be considered evidence of negligence (see Florida Standard Jury Instruction 401.9). Conversely, being in full compliance with the Residential Swimming Pool Safety Act (Chapter 515), provides some insulation to the property owner against being found at fault.

Continue reading "Summary of Florida's Residential Swimming Pool Safety Act" »

Florida Statute 767.04 imposes strict liability on dog owners for injuries suffered in public places and in or on private property when the victim is lawfully there. The former viciousness, in other words, the dog's history, is irrelevant, hence the strict liability aspect of the statute.

However, the victim's own negligence (e.g, taunting the dog) can be considered to reduce or avoid a dog owner's liability.

Additionally, except as to children under the age of 6, "or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words '"Bad Dog,"' the owner can avoid liability.

Continue reading "Florida's Dog Bite Law" »

Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner's duty of care to the visitor.

The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:

• 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.

(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)

Continue reading "Landowner Duty Standards in Florida Premise Liability Cases" »

In a previous blog, I wrote that Republicans in the 2010 Florida Legislature had designs on shifting the standard of proof in slip & fall cases to favor business establishments. Despite strong opposition from Democrats and the Florida Justice Association, the Republicans have accomplished their goal.

On Apri 14, 2010, Florida Governor Charlie Crist approved House Bill No. 689, effective July 1, 2010. The bill nullifies the holding in Owens v. Publix Supermarkets, Inc, 802 So. 2d 315 (Fla. 2001) and repeals 768.0710 F.S. The new law, which will be 768.0755, eliminates the burden on the defendant, after the plaintiff has established that his or her fall was caused by a transitory substance, to produce evidence that it exercised reasonable care under the circumstances. This is a major shift and one that will prove decisive in many slip & fall cases.

Continue reading "Slip & Fall Law Changed by Republicans in 2010 Florida Legislature" »

Current Florida law allows individuals injured in slip & fall accidents to prove fault against business establishments through evidence of inadequate maintenance policies and procedures. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001) and Section 768.0710 Florida Statutes. If the 2010 Republican-dominated Florida Legislature has its way, this consumer-friendly law will be eliminated. (See Senate Bill 1224 and House Bill 689.) If so, businesses establishments will have one less reason to perform routine inspections and maintenance to keep their premises safe.