Articles Posted in Premises Liability

Establishing the breach of a duty is one of the most contested issues in South Florida premises liability lawsuits. Essentially, in order to establish this element, a plaintiff must point to some negligent act or omission of the defendant that violated a duty owed to the plaintiff.

Florida SunsetEarlier this month, an appellate court issued a written opinion in a personal injury lawsuit filed by the father of a young boy who drowned while swimming in a pool at a condominium complex. The appellate court was tasked with determining if the trial court was proper to grant the defendant’s motion for summary judgment based on the plaintiff’s failure to establish that the defendant was negligent. After reviewing each of the plaintiff’s claims, the court determined that the condo association was not negligent in any way and affirmed the lower court’s ruling.

The Facts of the Case

The plaintiff’s son was swimming in a pool that was located inside a condominium complex operated by the defendant condo association. The boy was accompanied by several family members, none of whom lived in the condo complex. While the boy’s aunt did live in the complex, she was not present while the group was using the pool.

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When a plaintiff files a Florida personal injury claim, it is imperative that they name all of the potentially liable parties and include all of the relevant theories of liability as soon as practicable. This often means conducting a thorough investigation prior to filing the lawsuit in order to make sure that a plaintiff has all of the information to properly file a case. Of course, it is possible to amend a complaint after it is initially filed for a short time; however, if a plaintiff waits too long to amend a complaint, they will be stuck with what was initially pleaded.

Empty Swimming PoolThis can create several problems for Florida personal injury plaintiffs. For example, the trial judge can only instruct the jury on the allegations contained in the plaintiff’s complaint. Thus, even if a plaintiff uncovers evidence during the trial that may help them prove liability through an unpleaded theory, they may be prevented from doing so. A recent premises liability case issued by a state appellate court illustrates how exacting appellate courts can be when interpreting the allegations of a plaintiff’s initial complaint.

The Facts of the Case

The plaintiff was an investor looking to buy a rental property through the defendant realtor. One of the defendant’s listings was a home that had a pool in the back yard. The defendant contacted a pool maintenance company and performed the necessary maintenance to the pool prior to listing the home.

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Last month, one state’s appellate court issued a written opinion in a premises liability lawsuit that required the court to determine if the lower court was proper in granting the defendant’s motion for judgment as a matter of law. Ultimately, the court concluded that since the plaintiff presented evidence that gave rise to a factual issue regarding the defendant’s potential negligence, the case should have been presented to a jury, rather than being decided by the trial judge.

Slipping HazardThe Facts of the Case

The plaintiff was a tenant in an apartment complex that was owned and operated by the defendant. One winter day, the plaintiff was planning on going to the hardware store with a family member. As he exited his apartment and approached his truck, he slipped on a patch of black ice, falling on his shoulder. The fall resulted in a torn rotator cuff that required surgery to repair.

The plaintiff filed a premises liability lawsuit against the defendant, claiming that the defendant was negligent in maintaining the common areas of the apartment complex. The plaintiff testified that prior to the day of his accident, the defendant had cleared snow from the complex parking lot to an area that was slightly above the level of the parking lot. He explained that the snow melted during the day, resulting in water running onto the parking lot surface that later re-froze as the temperature dropped overnight.

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Earlier this month, an appellate court in California issued a written opinion in a premises liability case that was brought by the mother of a child who was struck by an errant golf ball as she was wheeling her son in a stroller on a walking path owned and maintained by the city. The appellate court hearing the case determined that the city was not entitled to government trail immunity because the dangerous hazard that caused the injury was not a condition of the trail itself.

Golf BallThe Facts of the Case

The walking path where the injury occurred directly abuts a private golf course. A few years before the accident, the golf course installed a fence and strategically planted large trees to decrease the likelihood that golf balls would leave the course. However, there was no evidence that the city took any precaution regarding golf balls that were hit out of the boundaries of the golf course.

The plaintiff filed a personal injury lawsuit against the city as well as the golf course. The plaintiff claimed that the city failed to take any action to remedy the known dangerous condition created by the potential of errant golf balls.

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Earlier this month, the United States Court of Appeals for the Fifth Circuit released a written opinion in a premises liability lawsuit against the federal government, alleging that the United States Forest Service, through its employees, was negligent in the maintenance of bike trails in a forest. The court ultimately determined that the alleged acts of negligence were covered under governmental immunity, and it rejected the plaintiff’s claims.

Mountain Bike TireThe Facts of the Case

The plaintiff and a friend were mountain biking in the De Soto National Forest. The bikers began their trip at the Couch Loop Trail. While the trail was closed, the plaintiff did not stop at the trail-head bulletin board, where the notice of closure was posted.

The plaintiff and her friend rode the Couch Loop Trail until they decided to take an “alternate route” to the left. This alternate route led the bikers to an area with several obstacles that had been built by a local bike association. As the plaintiff attempted to negotiate one of the obstacles, she fell off her bike and was seriously injured. She then filed a premises liability lawsuit against the U.S. government, claiming that the Forest Service was negligent in its maintenance of the bike trails. The plaintiff also alleged that the Forest Service was negligent in failing to warn her about the potential dangerous conditions present on the trails.

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In most cases, landowners owe a duty of care to those whom they invite onto their land. As a general rule, the level of care owed to a visitor depends on the relationship between the parties. For example, a customer shopping at a business is owed a higher duty of care than a trespasser who enters the owner’s land without permission.

Wooden DeckThe landlord-tenant relationship presents an interesting intersection of premises liability law and contract law. Certainly, the landlord retains legal ownership of the property and is responsible for transferring the property to the tenant in a reasonably safe condition; however, pursuant to the lease between the parties, the tenant is in exclusive possession of the property. Thus, courts have had to devise a way to determine when liability is appropriate in situations in which an injury occurs at a property owned by the landlord.

In Florida, a landlord can be held liable for injuries occurring on the property in a limited number of situations. The first is if the property was not transferred to the tenant in a safe condition. This includes making sure that the building is up to all building, housing, and health codes. The second potential basis for landlord liability is when the landlord fails to repair a known defect. In order for a tenant to succeed under this theory of liability, the tenant must have provided the landlord notice that the dangerous condition needed repair. Finally, a landlord may be liable to non-tenants in certain circumstances if a tenant’s dog attacks a visitor.

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A Florida appellate court recently considered whether a bank could be held liable after a woman fell in a hole in a construction zone on the bank’s property. The woman had driven to the bank to make a deposit. When she arrived, she saw the bank was closed and decided to use the bank’s outdoor ATM. She parked her car and saw that the area was under construction with a barricade in front of the ATM. The woman says there was a sign with an arrow directing people to walk around the barricade. She followed the directions, but as she was walking around the barricade, she stepped in a hole, causing her to fall and break her foot and her leg. She said did not see the hole, but admitted that there was nothing preventing her from looking down and seeing the it.

Construction BarrierThe woman filed a claim against the bank and its general contractor, alleging a breach of duty to warn and a breach of duty to maintain a safe location. The defendants claimed they were entitled to summary judgment under the obvious danger doctrine. The woman argued they were not entitled to summary judgment because the condition was not open and obvious.

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Earlier this month, a Georgia jury awarded a doctor $7 million in compensation after determining that the hospital where he was injured bore 70% of the responsibility for an accident resulting in the doctor’s career-ending injuries. According to a news article covering the recent case, the jury initially awarded the doctor $10 million, but that amount was reduced because the jury found the doctor to be 30% at fault.

Operating RoomThe Facts of the Case

The doctor had just finished performing a surgery at the defendant hospital when he sat down on a rolling stool to complete some post-operation paperwork. However, as he sat on the stool, it shot out from under him. The doctor fell, hitting his head on the floor. Initially, the doctor told bystanders that he was fine and even left the room to speak with a patient’s family. However, within hours of his fall, he was experiencing double vision and shortly afterward started suffering from seizures.

The doctor filed a lawsuit against the hospital, alleging that the specific type of stool used in the operating room was unsafe. The doctor presented evidence that the casters, which are the wheels on the bottom of the stool, were designed for carpeted surfaces and were unsafe on the hard vinyl flooring in the operating room. The doctor also explained that he had to end his successful practice after the accident, since he was afraid for his patients given his newly developed seizure disorder.

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The Michigan Supreme Court recently published an opinion reversing an appellate court decision that had overturned a trial court’s granting of summary judgment to the defendant in a slip-and-fall lawsuit filed after the plaintiff fell outside the defendant’s restaurant on a snowy night. The high court determined that the trial court was initially correct to determine that to be awarded summary judgment on the plaintiff’s claim, the defendant did not need to affirmatively prove they did not have notice of the dangerous condition causing the plaintiff’s fall. Based on the most recent decision, the plaintiff will not be compensated for her injuries, regardless of whether the defendant actually knew of the hazard that caused her injuries.

StaircaseThe Plaintiff Slips on a Staircase Outside the Defendant’s Bar

The plaintiff in the case of Lowery v. Woody’s Diner was a woman who was having drinks with friends at the defendant’s bar on a snowy night when she fell in front of the restaurant. According to the facts discussed in the appellate opinion, the plaintiff fell and broke two bones while she was standing outside the restaurant having a cigarette with a friend.

After she was injured, the plaintiff filed a premises liability lawsuit against the defendant, alleging that the defendant failed to maintain safe premises by allowing hazardous conditions to develop, specifically a slippery staircase.

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The Rhode Island Supreme Court recently published an opinion affirming a judge’s decision to grant summary judgment to a defendant condominium association in a slip-and-fall lawsuit that was filed by a woman who was injured outside the condominium. The condo consisted of two connected units owned jointly by two couples and an unincorporated association they had formed. According to the appellate opinion, the plaintiff intended to sue both the individual owners and the association, but she failed to properly name the association in her original complaint. The plaintiff eventually amended the complaint with all of the correct parties over one year after the statute of limitations for her claim had expired.

Cracked PavementThe Plaintiff Claims Confusion with True Identity of the Defendant Prevented Her Timely Filing

In seeking leave to file the amended complaint, the plaintiff explained that she intended to sue the association as well as the owners, but her investigation was unable to determine the actual organization holding ownership of the complex when the original complaint was filed. The plaintiff used a fictitious name (XYZ Condo Association) until she could file an amended complaint with the actual party name included. Since she sought to amend the complaint over three years from the date of her injury, she requested that the statute of limitations be extended to allow the amended complaint to proceed as if it were filed when the initial complaint against XYZ Condo Association was filed.

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