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.

Lack of control does not necessarily mean lack of duty. That’s what Florida’s 4th DCA decided in Rincon v. ABC. ABC, a subcontractor, left the construction site 32 days before the accident, claiming that its work was done under its contract with the general contractor. It also left behind the dangerous condition that caused Mr. Rincon’s serious accident. ABC argued to the trial court that since it finished its work and no longer had control over the dangerous condition, as a matter of law it did not have a duty to protect Plaintiff against the accident. The trial court bought the argument. The 4th DCA reversed and remanded to gather more evidence.

What the Rincon decision demonstrates is that duty is not all about control. Judge Pariente explained:

I disagree with Judge Klein [dissenting opinion] regarding the legal significance of the subcontractor’s lack of control over the premises on the date of the accident. The issue, in my opinion, is not whether the subcontractor had control of the premises on the day of the accident, but whether it left the premises in an unreasonably dangerous condition on October 31, 1995, the day it completed its work and left the project. Was it foreseeable to the subcontractor that, if the holes were left unguarded, another individual working on the job might fall and be seriously injured?

The fact that the accident occurred over thirty days later may be relevant to the issue of legal causation and foreseeability, but the passage of time does not, as a matter of law, establish the absence of negligence or the absence of legal causation. Generally, issues of proximate cause and foreseeability as related to proximate cause are fact questions for the jury, not resolved by summary judgment. See Springtree Properties, Inc. v. Hammond, 692 So.2d 164, 167 (Fla.1997).

No case, of which I am aware, requires that a defendant be in control of the premises on the day of the accident in order to be liable for negligence.

The point the cases do make is that a party in control probably owes a duty. This point is far different from the mistaken notion that a party out of control does not, as a matter of law, owe a duty. Going further, based on Rincon and general negligence duty principles, most importantly those set forth in McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992), the control analysis is not necessarily confined to the time of the accident. In Rincon, the court went back 32 days to perform the analysis.

The misapplication has come about with regard to this body of law because, like a mantra, the black letter law is cited again and again without enough thought being given to its actual meaning. Courts and lawyers have gotten lulled into attributing more meaning to the words than is intended.

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