Recently in Premises Liability Category

December 11, 2014

Florida Premises Liability Law: What is a Foreseeable Crime?

people.jpgThe foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.

Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:

  • Similarity of the prior crimes

  • Geographical proximity of the prior crimes

  • Temporal proximity of the prior crimes

Because the Florida Supreme Court has yet to come down definitively on how to analyze the factors, the outcome depends on where the event occurred.

Personal injury jury trials take place in circuit courts. Florida has twenty judicial circuits, grouped by county, in which these trial courts are located. For example, Miami-Dade County is in the Eleventh Judicial Circuit by itself, while the Third Judicial Circuit consists of Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee, and Taylor counties. Generally, a lawsuit may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. Section 47.011, Florida Statutes (2014) and Brown v. Nagelhout, 84 So.3d 304 (2012).

Most appeals from circuit courts are first handled by a District Court of Appeal. There are five District Courts of Appeal in Florida, composed of the various judicial circuits. For example, the Third DCA is responsible for appeals arising from Miami-Dade County and Monroe County circuit courts.

Here's how the DCAs address the factors:

SIMILARITY OF THE PRIOR CRIMES

  • Narrow test -- prior crimes must be similar to the one at issue. Third DCA, Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981) (reversing directed verdict for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault); Ameijeiras v. Metro Dade County, 534 So. 2d 812, at 812 (Fla. 3d DCA 1988) (discounting evidence of rampant illegal activities on the subject premises due to the absence of prior similar crimes (assault and robbery)); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997); Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d DCA 2001) (requiring evidence of prior similar crimes (assault).

  • Broad test -- allowing prior dissimilar crimes into evidence to prove foreseeability: First DCA, Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (citing Shelburne and Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985). But see Menendez v. The Palms West Condo. Ass'n, Inc., 736 So. 2d 58, 61 (Fla. 1st DCA 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability), Second DCA, Bellevue v. Frenchy's South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013), Fourth DCA, Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th DCA 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand v. Key, 657 So. 2d 1146 (Fla. 1995); Prime Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th DCA 1997) (holding that evidence of dissimilar crimes should go to a jury); and the Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).

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November 7, 2014

Florida Personal Injury Law -- No Substitute for Solid Pretrial Discovery

pinoccio.jpgThe Florida Rules of Civil Procedure outline the various ways in which parties to a lawsuit can discover information before trial. The most popular discovery vehicles are depositions, interrogatories, and requests for admissions. While these vehicles often help parties prove their case, they can serve another important function of impeaching inconsistent testimony.

Actual Example
We are three weeks before the start of trial in a premises liability case against a condominium association and a general contractor. Our client, a 78 year old woman, sustained serious injuries, including a broken humerus, when she fell into a hole at night in a wood deck under repair. The deck ran behind a line of townhomes. Our client was a guest at a party at one of the townhomes when she decided to take a stroll on the deck. The portion of the deck where she started out and for some fifty feet to the west had been repaired months before. The accident happened where the finished deck met the deck under repair. The hole into which she fell was created by the general contractor who had removed the old boards with the intent of replacing them.

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September 18, 2014

Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability

joint & several.jpgBy amending §768.81 Florida Statues, the Florida Legislature eliminated, effective 2006, the application of joint and several liability in most personal injury cases. Under the joint and several doctrine, in cases involving multiple defendants each negligent defendant was wholly responsible financially for the negligence of every other defendant. This concept especially benefited plaintiffs where one or more negligent defendant did not have the financial means to satisfy its share of the damages awarded, while one or more other defendants had the means to satisfy the entire award.

The doctrine was replaced by the comparative fault doctrine. Under this doctrine, each defendant's share of liability was limited to its allocated percentage of fault. For example, if each of three defendants was found one-third at fault, the most any one of the three would be responsible for paying is one-third of the total damage award. If the total damage award was $1,000,000, the most any one of the three defendants would have to pay is $333,333.33. If the others could not afford to pay their shares, the injured Plaintiff would simply not be fully compensated. In comparison, under the joint and several doctrine each one of the three would be liable for the full measure of damages. If, for example, one of the defendants was the Coca-Cola company and the other two were poor deadbeats without adequate insurance coverage, Coca-Cola would be on the hook for the full amount. Coca-Cola would have a right to go after the other defendants to recoup some of the money it paid.

By scuttling joint and several liability, the Republican Legislature, with the full backing of then Governor Jeb Bush, shifted the burden of loss from insurance companies and large corporations onto injured victims.

While joint and several liability does not apply in most post-April, 2006 personal injury cases, it remains a viable legal doctrine in cases where an independent contractor has breached a non-delegable duty. The most common scenario involves a property owner who hires one or more independent contractors to perform maintenance and security in and around a property, like a shopping mall. If a person rightfully on the property is injured by the negligent performance by the independent contractor, the independent contractor and the property owner are jointly and severally liable. This has long been the law in Florida:

"The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings and premises to which the guest are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another."
Goldin v. Lipkind, 49 So.2d 539, 541 (Fla. 1950) (emphasis added). Moreover, this is a well-established principle of law recognized throughout the country. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984).

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July 2, 2014

Florida Premises Liability Law: Misapplying the Control Concept

barricade.jpgCourts and lawyers have turned the following legal principle -- whether a party has a duty of care depends on the ability to exercise control -- on its head.

These cases and countless others state the principle: Metsker v. Carefree/Scott Fetzer Co. 90 So.3d 973, 977 (Fla. 2d DCA 2012) ("In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises."); Regency Lake Apartments Associates, Ltd. V. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991 ("In general, a cause of action for premises liability does not hinge on legal title ownership, but rather on the failure of the party who is in actual possession or control to perform its legal duty."); Haynes v. Lloyd, 533 So.2d 94, 946 (Fla. 5th DCA 1988) ("The crux of the cause of action for premises liability is not legal title or ownership, but the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contract, or other possessor with authority to control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.").

Too often, however, the principle is misunderstood and misapplied. It is most commonly misunderstood and misapplied to mean that lack of control means lack of duty as a matter of law. It doesn't.

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June 22, 2014

Florida Premises Liability Law - Possession Not (Necessarily) 9/10ths of The Law

L1010896 (300x232).jpgWhen it comes to determining ownership of property, there is a popular expression that possession is 9/10ths of the law. Most of the time, it's not that simple.

Some premises liability defendants put forth a reverse form of the possession proposition to avoid being held responsible for causing an accident. The proposition is that a party cannot be liable if it did not have possession or control of the property at the time of the accident. Most of the time, it's not that simple.

Our law firm is currently involved in litigation against a condominium association and a general contractor that it hired to replace deck boards on a dock running behind each townhouse in the complex. The general contractor created a dangerous condition by removing boards from the existing deck. Our client, a guest at a party hosted by a townhouse owner, fell into an opening where boards had been removed, sustaining serious injuries, including a broken humerus.

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March 5, 2014

Florida Premises Liability Law: Evidence of Prior Bad Acts

street-fight-379259-m.jpgIn Bellevue v. Frenchy's South Beach Cafe, Inc., So.3d , 38 FLW D2537 (Fla. 2nd DCA 12-4-2013), the 2nd DCA held that the trial judge was wrong in keeping evidence of the following prior incidents, some of which dated back four-and-a-half years before the subject incident, from the jury's consideration in a barroom brawl case involving serious injuries:

  1. the night cook being stabbed in front of the restaurant after he got off work;

  2. multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool;

  3. patrons being kicked out for fighting;

  4. patrons drunk and fighting on the deck;

  5. a car being broken into in the parking lot;

  6. a minor in possession of alcohol who was armed with a knife out front;

  7. a near-fight between two patrons and a waiter;

  8. multiple instances of having to stop serving alcohol to patrons because they were "out of control";

  9. multiple instances of drunk patrons being loud and vulgar or threatening; and

  10. the police having to be called because two patrons were about to fight.

In Florida premises liability cases, the plaintiff bears the initial burden of presenting competent and substantial evidence that the incident was reasonably foreseeable and the defendant failed to take reasonable measures to prevent it. The plaintiff in Bellevue tried to meet this burden by introducing evidence of sixty prior events, including the above listed. The court ruled that only those incidents "involving damage to persons or property" and "starting [on], ending [on], or involving the premises" would be admitted. As a result, only twelve of the sixty incidents were admitted.

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October 7, 2013

Florida's 3rd DCA Makes It Harder to Prove Premises Liability Fault

banana.jpgOnce upon a time in Florida a person injured by a transitory substance on the floor of a chain store like a Publix, Walmart, or Whole Foods could rely on similar incidents in the chain's other stores to prove what caused their own accident. The theory was that the similar events tended to show a failure by the entity to remedy a known problem. According to Florida's Third District Court of Appeals, this evidence is no longer relevant. Publix Supermarkets, Inc. v. Santos, So.3d , 38 FLW D1656 (Fla. 3rd DCA 7-31-2013).

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October 4, 2013

Florida Premises Liabililty Law: Overcoming Open & Obvious Dangerous Conditions

IMG_0298.jpgA landowner owes invitees two independent duties: "(1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils." Cruz-Haymer v. Festival Food Market, Inc. So.3d , 38 FLW D1581 (Fla. 4th DCA 7-24-2010 and Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 734 (Fla. 4th DCA 2012).

Landowners like to believe that where a dangerous condition is open and obvious, the victim should not be able to maintain a lawsuit for negligence. The idea relies on the proposition that "[t]he obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party ...." Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 576-77 (Fla. 5th DCA 2005) (citing Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986)).

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September 15, 2013

Premises Liability Law in Florida Post-Owens

In Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), the Florida Supreme Court described Florida's slip and fall law as it then existed:

All premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition. See, e.g., Everett v. Restaurant & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999). Despite this general proposition, when a person slips and falls on a transitory foreign substance, the rule has developed that the injured person must prove that the premises owner had actual knowledge or constructive knowledge of the dangerous condition "in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it." Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).[4] Constructive knowledge may be established by circumstantial evidence showing that: (1) "the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of the condition;" or (2) "the condition occurred with regularity and was therefore foreseeable." Brooks v. Phillip Watts Enter., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990). In the latter category, evidence of recurring or ongoing problems that could have resulted from operational negligence or negligent maintenance becomes relevant to the issue of foreseeability of a dangerous condition. See generally Wal-Mart Stores, Inc. v. Reggie, 714 So.2d 601, 603 (Fla. 4th DCA 1998); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075, 1076 (Fla. 3d DCA 1983).
The court was reviewing a case where the Plaintiff (Owens) slipped on a banana peel inside a Publix supermarket. Arguing that Owens failed to present any evidence that it had actual or constructive knowledge that the banana piece was on the floor, Publix moved for a directed verdict. Finding that the evidence of the condition of the banana was insufficient to establish a basis for Publix's liability, the trial court directed a verdict and entered final judgment for Publix.

From its analysis of the case before it and a handful of other Florida cases, the court concluded that "an injured person's ability to establish constructive notice is often dependent on the fortuitous circumstance of the observed condition of the substance." Finding this unacceptable, the court changed the law in premises liability cases involving transitory foreign substances by shifting the burden to the premises owner or operator to establish by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises, "eliminating the specific requirement that the customer establish that the store had constructive knowledge" of the existence of the transitory foreign substance. See Kenz v. Miami-Dade County, at 13, n. 1 (Fla. App. 2013). In enacting section 768.0710, the Florida Legislature returned to the claimant the burden of proving that the premises owner or operator negligently failed to exercise reasonable care, but codified that part of Owens that a claimant was not required to prove actual or constructive notice of the transitory foreign substance.

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July 2, 2013

Anatomy of a (Florida) Premises Liability/Personal Injury Settlement

Shaking hands.jpgEvery case is different. From accident to injuries, no two cases are ever exactly alike. That said, certain common elements do run through every case. From time to time I will be posting about some of the cases our firm has resolved. The common elements should become apparent in these blogs.

This first example involves a 2011 premises liability accident. Our client slipped in wet paint as she was descending a stairway after work. The property owner had hired an unlicensed and inexperienced recent Cuban immigrant to improve the appearance of the premises for a December holiday party. The painter failed to place warnings signs around the stairwell. It was night time and the outside stairwell was poorly lit. The accident happened in the blink of an eye. There was nothing our client could do to prevent the fall.

Our client, who was wearing flat-soled shoes, landed squarely on her rear-end. She felt immediate pain. Grey paint stained her pants and blouse. She called a co-worker, who assisted her in receiving medical care at a clinic located in her building. Within days she was receiving medical care under the workers' compensation system from doctors hand-picked by the WC insurance carrier.

Because the building owner was not her employer, she was free to pursue a premises liability case against the owner. (See this blog on the law of non-delegable duty and Florida Statute 440.11, Florida's workers' compensation immunity statute.) However, she was unaware of this right, and the workers' compensation attorney she hired did not consider the option. Within months, our client became disenchanted with her workers' compensation attorney and came to our law firm for a consultation.

Our law firm handles workers' compensation and premises liability cases. We quickly recognized that she also had a viable personal injury case. We agreed to handle both cases. This was seven months after the accident.

Our first course of business was to request a slew of records, including medical and employment documents from the workers' compensation insurance carrier. This was quicker, easier, and cheaper than requesting each set of records individually from the various entities. Within thirty days we had the records and were able to review them to get a clearer picture of the cases.

Among other things, we learned that she had undergone a 3-level spine fusion surgery in early 2012. We also learned that, in 2007, she had another, albeit less intrusive, back surgery. The prior surgery turned out to play a prominent role in the premises liability case.

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June 17, 2013

Florida Premises Liability Law -- Homeowners, Be Careful Who You Help

ladder1.jpgIn Umile v. Volpe, So.3d , 38 FLW D410, Florida's 4th District Court of Appeals held that a homeowner may be liable for injuries suffered by an independent contractor hired to perform work in his home.

The holding might appear to clash with this statement of Florida law:

"As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in performing their work." Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So. 2d 593, 595 (Fla. 4th DCA 2008).
It doesn't clash with Florida law.

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May 1, 2013

Florida Business Establishment Liability for Personal Injuries Caused by Broken Chairs

stools.jpgBusiness 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.)

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February 17, 2013

Florida Personal Injury Litigation: Avoid Being Tricked by Defendants -- Obtain Accident Videotape Footage

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.

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October 15, 2012

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

Videotape.jpgMost 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.

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September 16, 2012

Proving Negligence in Florida Against Banks for ATM Crime-Related Injuries/Death

people.jpgBy 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.

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