Premises Liability

Court Addresses Arbitration Clause in Florida Amusement Park Premises Liability Lawsuit

Published on: April 27, 2021 | by Friedman, Rodman & Frank, P.A.

An appellate court recently issued an opinion in a Florida premises liability lawsuit against a trampoline park. The case arose when a mother brought a lawsuit against an amusement park company (Park) on behalf of her son, who suffered injuries at the trampoline park. A friend of the family took the woman’s son to a trampoline park for a birthday party. While the boy was at the Park, he suffered serious injuries after falling off of a zipline. The woman filed a negligence lawsuit against the Park, and the Park moved to compel arbitration. The trial court denied the Park’s motion to compel arbitration, and the appeal ensued.

The Park requires ticket holders to sign a release which includes an assumption of risk, waiver of liability, and indemnification agreement. At issue is whether the arbitration clause in this agreement was valid and whether the parties agreed to the clause. The Park contends that because the family friend had “legal physical custody” of the minor, she could sign the arbitration agreement on his behalf. It further argued that any issues surrounding the authority of the woman to sign the agreement were an issue for arbitration, not a trial court.

Under Florida law, arbitration provisions fall under contract law and require contract interpretation. Disputes involving whether a case should proceed to arbitration require a court to look at three elements. These elements include (1) whether a valid written arbitration agreement exists, (2) whether an arbitrable issue is present, and (3) whether the parties waived the right to arbitrate.

The Importance of Pleadings in Florida Personal Injury Lawsuits

Published on: February 3, 2021 | by Friedman, Rodman & Frank, P.A.

Although people are generally familiar with the stages of a criminal lawsuit, there tends to be an extraordinary amount of misinformation and confusion regarding Florida civil lawsuits. There are many critical stages of a civil lawsuit that can significantly impact a plaintiff’s avenue for recovery after an accident. Individuals should contact an attorney at the onset of their lawsuit to ensure that they maintain the ability to recover for their damages.

Pleadings are the first stage of a Florida personal injury lawsuit. Although the term is often conflated with “all documents” in a case, the term is much narrower in scope. Pleadings are only documents and filings that set forth allegations, causes of actions, and the defending entity’s responses and defenses. This stage includes the complaint, answers, responses, counter and cross-claims, and relevant amendments.

Florida personal injury lawsuits commence when a party files a complaint or petition. The victim or complaining party should include factual assertions and the associated legal claims. In some situations, the pleadings must conform to special rules, such as claims arising out of medical malpractice or governmental entities. Florida Rules of Civil Procedure allow plaintiffs to proceed under inconsistent theories; however, the rule extends to defenses as well. Courts may rule in favor of a defendant and grant summary judgment if the complaint is insufficient. For example, a Florida appeals court recently dismissed at plaintiff’s claims based on a pleading deficit. In that case, the plaintiff asserted a negligence claim against his neighbor for a fire that a third-party contractor started. The plaintiff failed to address the third party in the complaint. The court found that both parties agreed that the defendant was not negligent and, therefore, only a vicarious liability claim would be viable against the defendant. However, the court dismissed the complaint because the plaintiff failed to allege vicarious liability in their pleading.

Navigating the “Obvious Danger” Doctrine in Florida Premises Liability Claims

Published on: January 27, 2021 | by Friedman, Rodman & Frank, P.A.

Whether you work in an office building or in a manufacturing plant, you go to work every day with a reasonable expectation that your workplace will be safe. In the event that something is unsafe or potentially dangerous, employers will typically mark or block off the space. For example, wet floor signs indicate when a corridor may be slippery, and construction tape can block off areas undergoing renovation. If you are injured while on the job because of a workplace hazard in Florida, you may be eligible to file a claim for compensation.

In a recent District Court of Appeal of Florida decision, the court considered the obvious danger doctrine in a premises liability claim. The plaintiff, an employee of the defendant, was injured when he stepped into an uncovered drain on a construction site. At various times, the drain that injured the plaintiff was covered and uncovered, depending on the phase of construction. When the plaintiff was last at the site, the door he stepped through before being injured by the drain was marked off and closed with tape. On the day of the accident, however, the door was not blocked off by tape. Because of especially bright conditions and a mixture of sunlight and dust from the construction, the plaintiff was blinded temporarily when he opened the door to a landing and stepped into the drain. Following the accident, the plaintiff sued the defendant for negligence, arguing that the defendant breached its duty to maintain safe premises. The trial court ruled in favor of the defendant, concluding that they had no duty to warn the plaintiff of “an open and obvious drain” and that the plaintiff should have taken steps to avoid the accident.

On appeal, the court reversed and sided with the plaintiff. According to the appellate court, the lower court was incorrect when it held that the defendant was not liable because the drain was open and obvious. Although the drain may have been obviously uncovered, the defendant failed to dispute whether its dangerous condition was obvious. Further, the court reasoned that even if the drain’s danger was open and obvious, the defendant still had a duty to maintain reasonably safe premises for its employees.

Court Awards New Trial in Florida Premises Liability Appeal

Published on: January 22, 2021 | by Friedman, Rodman & Frank, P.A.

Recently, an appellate court addressed whether a res ipsa loquitur jury instruction was appropriate in a Florida premises liability case. The case arose when an attorney was visiting her client in an Orange County jail. As she was passing through the security gate, the gate unexpectedly slammed down onto her, causing her to suffer injuries. The plaintiff pursued a lawsuit against the Orange County jail. At trial, she requested the court to provide a res ipsa loquitur instruction to the jury. After losing at trial, the County appealed, requesting a new trial, arguing that the instruction was inappropriate.

Res ipsa loquitur is an evidentiary rule that shifts a plaintiff’s burden of proof to the defendant. The doctrine translates to “the thing speaks for itself”, and applies in cases where a court can infer negligence from the fundamental nature of an accident or injury. Plaintiffs who wish to prove a claim under the doctrine must meet three elements:

Direct proof of negligence is unavailable;

Florida Premises Liability Cases Involving Allegations of a Victim’s Criminal Conduct

Published on: December 14, 2020 | by Friedman, Rodman & Frank, P.A.

In a recent Florida District Court of Appeal opinion, the court considered whether a defendant was civilly liable for a death that occurred on its property. The case is unique because it involved allegations that the deceased accident victim was involved in criminal activity shortly before she died.

The plaintiff in the case filed a claim against the defendant lodge after her mother was fatally shot in a parking lot owned and operated by the lodge. Following a brawl between some individuals who were part of the decedent’s group and some members of the shooter’s group inside the lodge, the two groups were removed to the parking lot, where a second fight began. Evidence showed that the decedent participated in the parking lot fight and struck a pregnant female who was part of the shooter’s group. After the fight in the parking lot ended, the shooter’s group left the parking lot, and the decedent’s group got into their vehicle, which was parked in the defendant’s parking lot. Before the decedent’s group could pull out of the parking lot, the shooter’s group returned to the lot and opened fire on their vehicle. The decedent was fatally shot while sitting in the front seat.

At the lower court, the defendant argued that they should not be held liable for the decedent’s death because the decedent knowingly struck a pregnant female on their property, committing a crime. Because Florida law prohibits an accident victim from recovering for their injuries if they were hurt while engaging in a crime, the defendant argued that they were not responsible for the decedent’s death. The trial court disagreed and argued that the defense did not apply because the decedent was not engaged in a felony when she was shot.

The Scope of a Landowner’s Duty Under Florida Premises Liability Law

Published on: December 3, 2020 | by Friedman, Rodman & Frank, P.A.

Florida law defines premises liability as a land or property owner’s liability for conditions or activities on their premises. The law imputes liability for injuries that a visitor suffers while on the landowners’ property. Liability is based upon the relationship between the visitor and the landowner. Generally, courts classify a visitor as either a trespasser, licensee, or invitee. Trespassers are those that are on the land without the knowledge or permission of the landowner. Whereas, licensees enter for the mutual convenience of both the visitor and the property owner, such as family and friends. Although duty and liability vary based upon the status, the law surrounding invitees have the most nuances. Invitees are usually either public invitees or business visitors. Public invitees enter the land as a member of the public for which the land is designed. Public invitees are those that enter places such as public parks, airports, or museums. In comparison, a business visitor enters a property or land for direct or indirect business dealings with the landowner, such as those that enter a shopping center, or a guest at an amusement park or hotel.

Independent contractors are a unique class of visitors that do not fall precisely within any of the classifications. Typically, landowners are not responsible for injuries that an independent contractor or their employees experience while engaging in their work. This rule applies even if the work is inherently dangerous, as long as the work is incidental to their job duties or disclosed. However, exceptions exist when the landowner actively participates or exercises direct control over the independent contractor’s work, or the owner creates a dangerous condition.

For instance, a Florida appellate court recently issued an opinion stemming from a premises liability lawsuit against a homeowner. In that case, the property owner hired the plaintiff to perform tree trimming services on his land. While trimming the trees, the plaintiff was electrocuted by an electric line. The victim admitted that he was aware of the electric line but did not know how dangerous it was. In coming to their decision, the court first explained that independent contractors are business invitees and, therefore, property owners are not generally liable for their work-related injuries. Moreover, in addressing an owner’s duty, the court described the open and obvious doctrine. Under this doctrine, the law entitles the owner to assume that the invitee will perceive any obvious dangers. In this case, regardless of the degree of dangerousness, the plaintiff attributed to the power line, it is clear that most electric lines are dangerous. Therefore, the electric line was not a latent danger, and the homeowner is not liable for the plaintiff’s injuries.

Florida Attorney-Client Privilege as It Pertains to a Client’s Medical Care

Published on: November 25, 2020 | by Friedman, Rodman & Frank, P.A.

Florida’s attorney-client privilege is one of the oldest recognized privileges in American judicial history. The privilege protects and preserves the confidentiality of communications between attorneys and their clients. The rule provides clients with the right to refuse to divulge and prevent another person from disclosing confidential communications between the client and attorney. Although there are significant policy justifications for the privilege, at its foundation, the rule is designed to promote and encourage the free and open sharing of information between clients and their attorneys. This allows clients to provide their attorneys with accurate and complete information, allowing them to provide more precise and well-reasoned advice and representation.

The attorney-client privilege is an evidentiary rule, as it prevents lawyers from testifying about their clients’ statements. In addition to the privilege, attorneys owe their clients a duty of confidentiality. This prevents attorneys from discussing information related to their clients’ cases in any other context. They must protect all information regarding their client’s case, regardless of the information’s origin. Both of these protections have certain exceptions that may be relevant if a client dies, in cases where the client is actively engaged in fraud, or if the disclosure is necessary to prevent certain death or substantial harm.

Throughout history, courts have heard and addressed various claims involving attorney-client privilege. One recent Florida decision in Worley v. Central Florida Young Men’s Christian Assn., held that the attorney-client privilege protects a law firm’s referral of a client to a treating physician. In that case, a woman fell and suffered injuries in a YMCA parking lot. During pretrial proceedings, the defendants asked her to disclose whether her attorney referred her to her treating doctors. The trial court compelled her to produce the information; however, on appeal, the Florida Supreme Court held that attorney-client privilege protects a party from disclosing information of that nature.

Court Finds in Favor of Plaintiff in Florida Trip and Fall Accident

Published on: September 15, 2020 | by Friedman, Rodman & Frank, P.A.

Florida premises liability lawsuits often involve a slip and fall or trip and fall. These accidents can occur at businesses, restaurants, grocery stores, hospitals, nursing homes, and public buildings. Generally, under state law, business owners and land occupiers owe invitees a duty to maintain their premises in a reasonably safe condition. Despite the law, property owners often fail to maintain their property safely and often delay making repairs or address hazards.

On the other hand, in some instances, a business owner may believe their property is safe. In these cases, the trier of fact will determine whether the property is safe under a “reasonable person” standard. In other words, the court will ask whether another similarly situated entity would act similarly or evaluate the danger in the same way. Moreover, some business owners may argue that the danger was “open and obvious.” When this occurs, the court will determine whether the condition was so open and obvious that it serves as a warning to the invitee to protect themselves from its dangers.

For example, in a recent opinion, a Florida court addressed whether a groove in the pavement in an ice cream store’s parking lot was an open and obvious hazard. In that case, a woman was navigating a parking lot to get to the ice cream shop when she tripped and fell into a groove in the pavement. The woman initiated a lawsuit against the parking lot owner, alleging that her injuries arose because of its negligence. At trial, the defendant argued that the depression in the pavement was so open and obvious that the woman should have realized its dangers and taken steps to avoid hurting herself.

Florida Court Addresses Negligence Per Se Claim in Elevator Accident

Published on: August 24, 2020 | by Friedman, Rodman & Frank, P.A.

Recently, a Florida appellate court issued an opinion addressing, amongst other issues, whether negligence per se applied in the plaintiff’s lawsuit arising after an elevator accident. The plaintiff filed a lawsuit against the owner of a two-story building after suffering injuries when stepping onto an elevator in the building. Evidently, the elevator door opened while the elevator was still several inches below the door’s entrance, causing the plaintiff to fall into the elevator. The lawsuit alleged negligence, negligence per, and res ipsa loquitor. The defendant argued that they were not negligent, the plaintiff was comparatively negligent, and the incident was not the proximate cause of the plaintiff’s injuries.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed, arguing that the ruling was improper because there was a genuine issue of material fact. One of the primary issues on appeal was whether the building’s owner was liable under negligence per se.

Negligence per se is a legal theory that places liability on a defendant based on their violation of a statute. The theory applies in situations where the defendant engaged in conduct that violated a statute designed to protect against the type of injury the victim suffered. Historically, negligence per se decisions stem from the violation of a statute designed to protect a specific class of people, a violation of a penal statute, or a violation of statutes designed to protect the public.

Holding a Florida Daycare Facility Liable after a Child Is Injured

Published on: July 13, 2020 | by Friedman, Rodman & Frank, P.A.

When we send our children to daycare, we trust that they will be safe, well taken care of, and protected while we’re at work. However, Florida daycare accidents happen, and no parent ever wants to receive a phone call informing them that their child has been hurt. When parents entrust daycare centers and caregivers to watch over their children, they should be able to do so without worrying about unsafe facilities or neglectful caretakers. Thus, when accidents occur, those individuals responsible should be held accountable for their actions.

In a recent state appellate court opinion, the plaintiffs sued on behalf of their son, who suffered a serious injury while at a daycare facility. Evidently, while the child was sleeping, an unsecured television collapsed on him. Barely two years old, the impact from the accident crushed part of his skull and left him connected to a ventilator for nine days. The child subsequently suffered significant developmental issues following the accident. The plaintiffs sued the daycare facility, its owner, and the employee directly responsible for caring for their son, asserting claims of negligence and premises liability. After trial, the jury awarded the plaintiffs $30.3 million in compensatory damages.

The daycare appealed the damages award and judgment entered against them, attempting to secure a new trial. The daycare argued that there was juror misconduct and an introduction of extraneous information that tainted the jury’s judgment and influenced the verdict. Ultimately, the court disagreed with the defendants’, holding that there was no extraneous information that actually prejudiced the verdict and denied the daycare’s request for a new trial.