Articles Posted in Premises Liability

sidewalk-300x200Owners and occupiers of premises have a duty to warn invitees (e.g., shoppers in mall, residents of condominium) of latent or concealed perils of which they know or should know. Krol v. City of Orlando, 778 So. 2d 492 (Fla. 5th DCA 2001).

Conditions such as uneven floor levels and sidewalk curbs have been found by Florida courts to be open and obvious. E.g., Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Gorin v. City of St. Augustine, 595 So. 2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So. 2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not “concealed or latent danger”).

The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their senses. See Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990). This doctrine is counterbalanced by the principle that a landowner’s duty to maintain his premises in a reasonably safe condition is not discharged by the dangerous condition being open and obvious. De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013).

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In Florida, Native American tribes operate popular business establishments. On occasion, patrons frequenting the establishments are hurt by dangerous conditions created through negligence.

The U.S. Constitution (Article I, Section 2, Clause 3; Article I, Section 8; The Fourteenth Amendment), treaties, and laws, authorize Native American tribes to govern themselves as sovereign nations within the United States.

Florida’s personal injury and wrongful death laws hold parties accountable for their negligence. As independent sovereign nations, the tribes are not subject to these laws.

Until 2021, when the Seminole Tribe signed a gaming compact with the state of Florida, the tribe could not be forced to pay any damages to individuals hurt on their property. Under the Compact, the Seminoles agreed to be subject to damage awards capped at $200,000 per individual/$300,000 per claim.

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IMG_2410-207x300Our client, a construction site supervisor, was injured off-premises at the end of his lunch break. The beginning and end of lunch were signaled by a loud horn. He and his brother traveled by car to a nearby 7-11 to purchase lunch items. They returned to the area near the worksite to eat lunch in the parked car. When the return-to-work horn sounded, our client went to the trunk of his car to retrieve his hard hat and safety harness. As he was standing there, the car behind him was struck from behind by another vehicle and pushed into him, causing him to be crushed between that vehicle and his own. He sustained significant injuries requiring a one-week stay in Ryder Trauma Center in Miami.

Initially, the workers’ compensation insurance carrier balked at accepting compensability of the injury. Its position was that since the accident happened offsite during a lunch break, it did not arise out of and in the course and scope of our client’s employment. After studying the case law and gathering more facts, the carrier reversed course.

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joint-severalIn every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939)Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979)Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

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bananaFor purposes of this blog, a transitory substance is any solid or liquid substance, object, or item that is located in a place where it does not belong.

Certain legal standards must be met in order to prevail in a case for personal injuries caused by a transitory substance. Before Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the injured person had to prove that the owner or person in possession of the premises had actual or constructive knowledge of the transitory substance. Constructive knowledge required a showing “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).

Florida’s appellate courts struggled to determine whether in a given case sufficient evidence existed to create a jury question on the issue of constructive notice. Owens tried to eliminate the struggle by creating a new rule:

where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.

The rule eliminated the need for proving actual or constructive notice and placed the burden on defendants to show they exercised reasonable care through their maintenance, inspection, repair, and warning procedures and modes of operation.

By the next legislative session, the rule announced in Owens was adopted in part and modified by the Florida Legislature. See Section 768.0710, Florida Statutes (2002). The statute was modified to shift the burden onto claimants to demonstrate that the defendant failed to exercise reasonable care.

In 2010, section 768.0710, Florida Statutes (2002) was repealed and replaced with section 768.0755, Florida Statutes. The new statute eliminated negligent maintenance, inspection, repair, warning, or mode of operation as a means of establishing fault, and it reinstated the actual or constructive knowledge standard. The differences between the statutes are explained in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424-26 (Fla. 4th DCA 2014):

The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older 2002 statute expressly stated actual or constructive notice was not “a required element of proof to this claim,” but the new 2010 statute expressly stated the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.

The McGruder court went on to say:

Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing ‘the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,’ without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.

Section 768.0755 reads as follows:

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

Whereas 768.0710 was a version of Owens, 768.0755 is a throwback to the law as it existed before Owens. The following cases, both pre-Owens and post-768.0755, are examples of how the law is applied. Since Owens is moot, none of the cited cases were decided under Owens.

Against Plaintiff

North Lauderdale Supermarket v Puentes, 332 So.3d 526 (Fla. 4th DCA 2021). Puentes slipped and fell on a purportedly oily substance on the floor of Defendant’s business establishment. Defendant appealed the non-modified use of standard jury instruction 401.20(a) (“Issues on Plaintiff’s Claim — Premises Liability”). In pertinent part, the instruction read as follows:

Whether Defendant, Sedano’s Supermarket #35, negligently failed to maintain the premises in a reasonably safe condition….   

Finding that the instruction was not correct, the DCA reversed. The court explained that the law in effect, section 768.0755, differs from its predecessor, section 768.0710, by not allowing for liability based solely on the business establishment’s general failure to maintain the premises, while the instruction permitted the jury to find Defendant liable on a theory of negligent maintenance without making the statutorily required finding that Defendant had actual or constructive knowledge of the dangerous condition. The court noted that the Committee on Standard Jury Instructions (Civil) at 2 (June 7, 2019), did not propose redrafting instruction 401.20(a) itself, stating that the instruction remained “accurate for premises liability claims involving a landowner or possessor’s negligence toward invitees and invited licensees that do not involve transitory foreign substances.” Id. (emphasis added).

Lago v. Costco Wholesale Corp., 233 So.3d 1248 (Fla. 3rd DCA 2017). A slip and fall case. Summary judgment for Costco affirmed on appeal. The appellate court noted the following factors: As to actual notice, Lago testified she did not see any Costco employee around the liquid or by the entrance before or when she fell. As to constructive notice, “Lago’s testimony was almost identical to the Delgado [Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011)] plaintiff. Lago testified that it was not raining (the slip and fall happened under an overhang in front of the Costco entrance), she did not see the liquid on the floor before she fell, she didn’t know what the liquid was (other than that it was wet), and she didn’t know how long it had been there. Lago saw no one else slip in the same busy entranceway before and after her fall.” “Without additional facts suggesting the liquid had been there for a long period of time or this happened regularly, the trial court properly granted summary judgment in favor of Costco.”

Tallahassee Med. Ctr., Inc. v. Kemp, 324 So.3d 14 (Fla. 1st DCA 2021). Trial court denial of directed verdict for defendant Tallahassee Medical Center reversed on appeal. Plaintiff fell in front of a utility-room door. The court decided that video evidence of employees moving trash bags, linen bags, and trays into the utility room next to where she fell and a housekeeping cart wheeled over the spot that she fell was not enough circumstantial evidence to get the case to a jury. The court noted that the video showed no leaks, spills, drops, or other deposits of a liquid substance onto the floor and that plaintiff saw nothing drop from the tray being carried by the employee she saw immediately before her fall. Here’s the court’s reasoning:

Plaintiffs may not stack inferences upon a debatable inference drawn from circumstantial evidenceSee [State Farm Mutual v] Hanania, [261 So. 3d 684] at 687 [Fla. 1st DCA 2018]. Instead, a directed verdict should issue for a defendant “if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation.” Id. (quoting Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016)). This rule against stacking inferences “protect[s] litigants from verdicts based on conjecture and speculation.” Id. (quoting Zota, 192 So. 3d at 537; see also Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d DCA 2018) (foreclosing a jury from stacking inferences from circumstantial evidence to arrive at a verdict).

Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014). Summary judgment for Winn-Dixie upheld on appeal. The facts:

  • Appellant saw no water or other liquid substance before she fell.
  • She could not say whether she saw any such substance on the floor after she fell, although she claimed she saw “wet tracks” from the wheels of the cart.
  • When asked if she saw any water tracks, Appellant responded: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store.
  • Appellant described the condition that allegedly caused her fall as “just drops of water” that were “unnoticeable”; thus, she did not see the substance before her fall. Furthermore, she was not sure how long the water was there.
  • The store manager observed a video taken by a store surveillance camera that showed two of his assistants inspecting the area where Appellant fell two to three minutes before the incident happened.
  • When asked if it rained on the day in question, the manager responded that he believed it did, but “I don’t know if it just stopped or just started.” When asked why he believed it rained, Williams responded: “Because in the video, it shows that we had an umbrella rack up,” which are “plastic bags where your umbrella gets into, and that’s to keep them from dripping.” These are put out “[b]efore a rain or during a rain.”
  • Pursuant to Winn-Dixie’s rainy-day policy, right before a rain or after, a mat, two cones, and an umbrella rack would be put down near the entrance door. The manager did not see the mat in place in the video footage from the time of the incident. Asked why the mat was not down, he didn’t know if it was because it had stopped raining, or if it hadn’t rained yet and his people were in the process of doing it.
  • As for why the umbrella rack was there, the manager assumed that it had just rained or was about to rain.

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Litigants seek probative evidence to prove their cases through procedural discovery methods. In personal injury cases, incident reports describing the circumstances of the accident typically contain valuable information.

Defendants usually oppose turning over incident reports to plaintiffs. The argument is that the incident report was prepared in anticipation of litigation and, therefore, is protected by the work-product privilege. See Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege.”).

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To defeat a negligent security claim arising from a violent crime, property owners and event organizers used to be able to hide behind the defense that nothing similar happened in the past. In a society buried in cellphone footage of violent crimes, juries are less inclined to give those who hold the safety of others in their hands a free strike or two before holding them accountable. Those in control of surrounding circumstances are now expected to be proactive in protecting against foreseeable harm.

Examples of proactive conduct include:

  • A visible security presence including guards and cameras.

8-225x300In the interest of public health, safety, and welfare, most construction projects require the services of licensed contractors. See Section 489.101, Florida Statutes. Section 489.103 outlines various exemptions to this public policy. One of the exemptions, contained in 489.101(7)(a), applies to “Owners of property when acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors.”

To impress upon owners the significance and consequences of operating as their own contractors without being licensed, the statute contains a 12-part section titled “Disclosure Statement.” The owner is required to sign this form for the local permitting agency.

In general, Florida law provides that “[A] property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work.” Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA 2011).

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dollarsIt is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in  section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

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Google-Street-View-300x225One of the most important elements in a premises liability case is proving notice of the dangerous condition. This is done by demonstrating that the owner and/or possessor of the premises had actual or constructive knowledge of the dangerous condition before the accident occurred.

Google Maps was launched in 2005, Google Street View in 2007. Images captured by both sometimes demonstrate constructive knowledge by showing that a dangerous condition existed for a period of time sufficient to impute notice against the owner or possessor of the property. The trick for the proponent of the Google images is to get them admitted into evidence.

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