Articles Posted in Premises Liability

peopleIn this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

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client2Everyone has crossed through some sort of landscaped area to get from one public place to another. While few fall and hurt themselves, some are less fortunate. Florida courts have addressed the issue of fault for such accidents. Should the landowner be held accountable? Or is the standard, cross at your own peril?

The answer is, it depends.

One of the leading cases on the subject is Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014). While the court ruled for the property owner, its discussion shows how the outcome can go the other way under different circumstances.

“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

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security gateWith the exception of strict liability cases, the burden is always on the plaintiff in personal injury cases to prove that the “[defendant’s] negligence probably caused the plaintiff’s injury,” with “probably” being the more likely than not/greater weight of the evidence standard. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984); see, also, Standard Jury Instruction – Civil Cases 401.3.

The standard was recently put to the test in Sanders v. Erp Operating Limited Partnership, 157 So.3d 273 (Fla. 2015).

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broken-sidewalk-2-1090214-m.jpgOur last blog discussed the liability of landowners for accidents caused by tree roots. Today’s blog addresses the liability of landowners for accidents caused by broken sidewalks.

Every premises liability case analysis involving invitees begins here:

“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

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FullSizeRender-medWe are about to file suit in a case where our client fell after catching the heel of her shoe on a tree root as she was traversing a raised, curbed planting bed that was six to eight feet wide, on the way back to her parked car from an employer-sponsored holiday party. (The photo at right shows the accident scene.) The accident happened at night under dim lighting conditions. Our client sustained a trimalleolar fracture.

We blame the commercial property owner for causing the accident by failing to maintain the premises in a reasonably safe condition, and failing to give warning of the concealed dangerous condition. We expect the property owner to counter that it had no duty to make the landscaping area in its parking lot fit for pedestrian traffic, and that the tree root was so obvious so as not to constitute a dangerous condition.
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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

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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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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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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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