Premises Liability

Appellate Court Decides Not to Invoke Florida’s Dangerous Instrumentality Doctrine

Published on: February 28, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent opinion from the Third District Court of Appeal for the State of Florida, a plaintiff appealed his claims after he was denied damages in a suit relating to his sustained injuries from a heavy object being dropped onto his foot. The plaintiff attempted to hold Sunbelt, the loader’s owner, directly liable for his injuries. The complaint alleged that Sunbelt should be held liable for its negligent failure to require that the operators of its loaders be properly trained and should be vicariously liable for the defendant’s alleged negligent operation of the loader under Florida’s dangerous instrumentality doctrine. The trial court sided against the plaintiff, which led the plaintiff to appeal.

In this case, the defendant is a licensed contractor who was hired for a clean-up job on private property. The plaintiff accompanied the defendant to the clean-up site and assisted the defendant with cleaning the debris. There were ramps placed inside a bucket attachment that the defendant brought to the cleanup site. After all of the debris was collected, the defendant directed the plaintiff to retrieve the ramps so that the defendant could drive the loader back onto the trailer. The defendant picked up the bucket attachment using the loader’s grapple and drove the loaders toward the trailer. The loader came to a complete stop, and the plaintiff approached the loader on foot and reached into the bucket attachment to retrieve the ramps from within the bucket. While doing so, the loader lurched forward unexpectedly, slipped from his grip, fell on his foot, and amputated two of his toes.

Florida’s dangerous instrumentality doctrine imposes strict vicarious liability on the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes harm to another. Under this doctrine, an owner who entrusts another to operate the motor vehicle has an obligation to ensure that the vehicle is operated safely. There is an exception to the doctrine, where the person entrusted with the vehicle injures another while both persons are using the vehicle. If this exception applies, the vehicle’s owner cannot be held vicariously liable for the negligent operation of the vehicle. The exception applies when the individuals are “jointly operating and controlling the movement of the vehicle with common purpose and community interest of enterprise, with equal right to control and direct the conduct of each other.”

Florida Appeals Court Affirms Lower Court Decision in Premise Liability Case

Published on: January 11, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a duty to warn or duty of reasonable care premise liability action between a plaintiff that was a customer in a store and the defendant, the company operating the store. The suit resulted from an incident where the plaintiff tripped inside the store. The trial court found in favor of the defendant, finding that the plaintiff due to an open and obvious condition. In Florida, the open and obvious doctrine provides that a landowner is not liable for injuries and harm caused by a dangerous condition of their land when the danger is known or obvious unless the landowner would anticipate those injuries.

A recent state supreme court case explored the issue of the open and obvious doctrine when a plaintiff sued a church after tripping on the top step of a flight of stairs. In that case, the court ruled that due to the fact that the plaintiff had used those stairs just minutes before and due to the fact that the top step was made from different material and looked different from the other steps, the danger was open and obvious, and therefore the defendant was not liable for the injury.

While the open and obvious doctrine can prevent plaintiffs from successfully holding landowners fully accountable for injuries in Florida, there are other ways to make sure injured parties are properly compensated. Florida landowners are still required to maintain their land and the premises in a safe condition. The courts of Florida have ruled that landowners can still be at fault for failing to maintain a safe premises, even if an obvious or open danger means they do not need to warn others. Specifically, even in circumstances that are open or obvious, property owners should anticipate that people on the property will encounter the hazard, and subsequently can be found negligent for failing to maintain the premises safely. In such a situation, the plaintiff may be found to have contributed to their own injury, but the landowner can still be apportioned blame.

Wedding Guest Sues Bride and Caterer for “Poisonous” Marijuana-Laced Wedding Food

Published on: January 11, 2023 | by Friedman, Rodman & Frank, P.A.

Wedding guests are generally subject to the desires of the bride and groom when it comes to the food and drinks served at a wedding. Guests with dietary restrictions or strong food preferences may need to avoid certain wedding foods, or even skip out on a reception entirely if an undesired or dangerous food is on the menu. For party guests to make an informed decision about whether to eat the food that is offered, the guests should be made aware of what exactly is on the menu. A Florida wedding guest has recently filed a lawsuit against both the bride and a catering company for serving marijuana-laced food at the wedding without the guests’ consent.

According to a recently published local news report discussing the lawsuit, the plaintiff was a guest at the defendant’s wedding held in the Orlando area in February 2022. The bride hired the other defendant, a catering company, to serve food at the wedding reception. The plaintiff’s lawsuit alleges that the wedding guests were not notified that there would be any drugs or other adulterants added to the wedding food, but the plaintiff and other guests reportedly began to feel ill after consuming the wedding food. Other guests identified the feeling as marijuana intoxication, and authorities were called to the scene. Several wedding guests were treated for the intoxication, with some reportedly being hospitalized. Police took some of the food samples into evidence, and it was later confirmed that the food contained highly intoxicating levels of marijuana. The bride and the caterer were later arrested on drug and criminal negligence charges.

The plaintiff’s lawsuit alleges that the bride and caterer were negligent in serving intoxicating drugs to wedding guests without their consent. The lawsuit claims that the plaintiff suffered from marijuana poisoning by consuming the food, and suffered serious damages as a result. Poisonings are the leading cause of deaths and hospitalizations among Florida residents aged 25-54 years old, with many of these events resulting from the consumption of illegal or improperly administered drugs. Poisoning hospitalizations also occur as a result of chemical exposure and foodborne illness. Florida residents who have been poisoned by another, whether intentionally or negligently, may have a cause of action for damages against the other party. An aggrieved party can pursue a Florida personal injury claim to hold the other party accountable for their actions and receive compensation for the negative effects of the poisoning.

Seeking Punitive Damages in a Florida Negligence Claim

Published on: December 20, 2022 | by Friedman, Rodman & Frank, P.A.

Florida negligence law allows for several different types of damages to be awarded in a negligence case. The primary damages awarded are known as compensatory damages. Compensatory damages are awarded to a victim to compensate them for the economic costs related to an injury. These costs could include medical bills, missed work, and property damage. Special damages, sometimes referred to as “noneconomic damages,” can be awarded to compensate victims for other harm related to an accident, such as pain and suffering or emotional distress. Courts also may award punitive damages to a plaintiff, which are designed to punish a defendant for especially egregious conduct that resulted in harm to a plaintiff. A Florida appellate court recently rejected a plaintiff’s claim for punitive damages in a breach of contract claim that alleged gross negligence.

The plaintiffs in the recently decided case rented an apartment from the defendant. Based on poor living conditions and possibly harm and injury therefrom, the plaintiffs filed a breach of contract claim against the defendant, seeking financial damages for the defendant’s failure to market a safe and livable property for the plaintiffs. The plaintiffs requested punitive damages in the count of the complaint which alleged gross negligence by the defendant. The defendant’s attorneys objected to the damage request, arguing that such damages can only be awarded as part of an independent tort (negligence) claim, and not under a breach of contract allegation. The trial court allowed the plaintiff’s claim to proceed, finding that the “gross negligence” allegation was enough to meet the requirement.

The defendant appealed the decision to the Florida Court of Appeal, where the trial court’s ruling was reversed. The appellate court reiterated that punitive damages are not awardable in breach of contract cases unless an independent tort claim is made as well. The court found that an allegation of “gross negligence” contained within a breach of contract claim is not enough to satisfy this requirement. As a result of the appellate ruling, the plaintiff’s punitive damage claim will not reach the jury if the case goes to trial.

Florida Appeals Court Reverses Trial Court Summary Judgement Decision in Negligence Case

Published on: November 29, 2022 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a negligence and premises liability action between a plaintiff that was driving, and the defendant, a construction and engineering firm. The suit resulted from an incident where the plaintiff’s vehicle struck a protruding manhole cover while driving through Miami-Dade County. On the date of the accident, the defendant firm was performing roadwork in the area pursuant to a contract with the Florida Department of Transportation. The plaintiff subsequently brought suit against the defendant for negligence and premises liability. Following the hearing, the trial court granted the defendant’s motion for summary judgment, finding that the plaintiff failed to put forth sufficient evidence that the manhole cover he struck was located in the position he initially described it as.

During the trial, the plaintiff unequivocally testified at least three separate times during his first deposition that the manhole cover was located on West Flagler Street between 16th Avenue and 17th Avenue. During discovery, the plaintiff also produced close-up photographs of the manhole cover, testifying that he took the photographs some time after the accident occurred, though he could not remember exactly when. The photographs depict a manhole cover with a “W” in the center and several white striped circles around the “W.” The plaintiff also testified that he was unsure which of the two westbound lanes he was traveling in when he struck the manhole.

In a second deposition nearly two months later, when the defense counsel presented the plaintiff with a Google Earth photograph of the area where the incident occurred, the plaintiff identified the manhole cover in the right lane as the one he believed was involved in the accident. The manhole cover identified by the plaintiff had dots embedded across the cover and the word “sewer” displayed on it. The Google Earth photograph also showed a water main manhole cover in the left lane with a “W” in a box in the center. The defendant moved for summary judgment arguing that it was not liable to the plaintiff because the manhole cover identified by the plaintiff was different than the one depicted in the close-up photographs taken by him. The plaintiff argued that there was a genuine issue of material fact, precluding summary judgment. Following a hearing, the trial court granted summary judgment to the defendant.

Florida Theme Park Injuries and Fatalities

Published on: April 8, 2022 | by Friedman, Rodman & Frank, P.A.

Florida is an international hub for some of the world’s most well-known amusement parks. While various governmental entities issue guidance and regulations regarding amusement park safety, many rides pose inherent risks. Although most amusement park-goers sign release of liability waivers in the event of an accident or injury, these waivers are not iron-clad. In some instances, injury victims may still pursue claims against a negligent amusement park.

Recently, a 14-year-old boy fell to his death at Florida’s ICON Park. The teenager fell from a FreeFall drop tower ride, which transports riders up and then drops them about 400 feet at speeds exceeding 75 mph. According to authorities, the 14-year-old weighed more than 300 pounds and stood nearly 6-feet, 5-inches tall. The ride’s operations manual states that the maximum passenger weight is about 287 pounds. The manual further states that ride operators should use care when seating large guests. Operators should confirm that the passenger fits within the contours of the seat and brackets. In this case, the employee operating the ride at the time of the incident completed training at the end of February.

Moreover, safety officials visually inspected the ride in a “non-destructive test.” Reports indicate the ride met Florida’s qualifications. The Florida Department of Agriculture and Consumer Services is working with the sheriff’s office to investigate the incident and make changes to protect amusement park patrons.

Liability for Suicide Attempt at Florida Apartment Complex

Published on: March 9, 2022 | by Friedman, Rodman & Frank, P.A.

In Florida, the Third District Court of Appeals recently issued a decision in a plaintiff’s appeal of a trial court’s finding in favor of an apartment complex. According to the record, the apartment complex owns a six-floor building. On the day of the incident, the then seventeen-year-old plaintiff trespassed and gained access to the apartment complex rooftop with the intention to commit suicide. The plaintiff did not complete suicide but endured severe injuries, including the amputation of his leg.

In Florida, premises liability law provides that generally, property owner or occupier has a duty to maintain a premise or property in a reasonably safe way. Additionally, a plaintiff may pursue a negligence per se claim if they establish that the defendant violated an ordinance or law to prevent the type of incident that occurred.

In this case, the plaintiff filed a premises liability lawsuit against the complex, alleging that the defendant owed a duty to prevent suicide on the rooftop. Under the restriction theory of suicide prevention, the theory posits that by eliminating or restricting access to methods by which people attempt suicide, the overall rate of suicide attempts decreases. However, the plaintiff’s complaint does not allege that the defendant breached a specific duty to prevent or guard against his suicide attempt. As such, the trial court concluded that private building owners do not owe a duty to undiscovered trespassers to prevent suicide.

Florida Appellate Court Reverses Premises Liability Verdict over Improper Jury Instruction

Published on: January 10, 2022 | by Friedman, Rodman & Frank, P.A.

Most Florida negligence lawsuits that proceed to a trial are ultimately decided by a jury. Juries are made up of randomly selected members of the public, who are not expected to have any specific knowledge of tort law. Courts use jury instructions, which are given to the jurors before deliberation, to explain the law to the jurors, and ensure that a verdict is supported by the law. Jury instructions are determined after each side proposes and argues to the court the exact wording for instructions that will allow the jury to reach a legitimate verdict. If an instruction is given to the jury that does not accurately explain the law surrounding the issue at hand, a verdict could be overruled on appeal. A Florida appellate court recently addressed an appeal filed by a defendant in a slip and fall case, which argued that the jury was improperly instructed before reaching the verdict.

The plaintiff in the recently decided case is a woman who was injured after she slipped on an oily substance while shopping at the defendant’s supermarket. Based on her injuries, the plaintiff filed suit against the defendant in state court, alleging that the defendant had negligently maintained the premise of their business, and the plaintiff was injured as a result of that negligence. The plaintiff’s case went to trial, after which the jury was given instructions explaining the basis for a premises liability claim against a Florida business.

One instruction, proposed by the plaintiff, stated that the defendant should be liable for the plaintiff’s injuries if evidence demonstrated that the defendant negligently failed to maintain the premises in a reasonably safe condition, or negligently failed to correct a dangerous condition about which the defendant either knew or should have known, by the use of reasonable care, or negligently failed to warn the plaintiff of the dangerous condition about which the defendant had, or should have had, knowledge greater than that of the plaintiff.

Florida Court Distinguishes Between Ordinary Negligence and Medical Negligence

Published on: November 10, 2021 | by Friedman, Rodman & Frank, P.A.

Recently, an appellate court issued a decision addressing whether a plaintiff’s claim falls under Florida’s negligence statute or the state’s medical malpractice statute. The plaintiff filed a claim against the defendant, a healthcare group, for injuries he suffered while receiving treatment at the facility. According to the record, the hospital admitted the patient for diagnostic imaging. Following the procedure, the plaintiff tried to move from the exam table to a wheelchair. However, the plaintiff fell because the attendant failed to secure the wheelchair brakes properly. The plaintiff claimed that his claim was based on ordinary negligence, not medical malpractice.

However, the court dismissed the complaint at trial, finding that the claim sounded in medical malpractice, and the plaintiff failed to abide by the applicable statute of limitations.

In cases like this, the initial inquiry is based on determining whether the claim stems from ordinary negligence or medical malpractice. According to Florida courts, these types of “gray-area” cases hinge on the specific circumstances of the injury. However, the law limits a court’s inquiry to the allegations within the “four corners” of the plaintiff’s complaint at the preliminary stages. In this case, the court found that the plaintiff alleged sufficient facts to meet the elements of an ordinary negligence claim. As such, they reversed the trial court’s finding, ruling that the dismissal with prejudice was inappropriate.

Establishing the Duty of Care in a Florida Personal Injury Lawsuit

Published on: July 15, 2021 | by Friedman, Rodman & Frank, P.A.

After experiencing an injury because of another’s negligence, an accident victim may be able to collect damages for their losses. Under Florida’s negligence laws, the plaintiff must establish that the at-fault party was responsible for the incident and ensuing injuries. While this may seem straightforward, the law has many nuances that make recovery challenging for many Florida accident victims. Injury plaintiffs must meet the four primary prongs of a personal injury lawsuit to recover damages successfully. In addition, they must be able to overcome any defenses the at-fault party poses.

Broadly speaking, a defendant may be liable for negligence if they failed to use reasonable care. Reasonable care is that which a similarly situated person would use under the same circumstances. Negligence may include the failure to do something that a reasonable person would do or doing something that a reasonable person would not do. The four elements of a Florida negligence lawsuit include establishing that the defendant owed the victim a duty, they breached that duty, that breach was the cause of the plaintiff’s harm, and the plaintiff suffered compensable losses. Defendants can refute any part of a plaintiff’s claim, and if they are successful, the claim will fail. As such, it is vital that claimants contact an attorney to ensure that all elements of their claim are met.

The most critical inquiry in these cases is whether the defendant owed the plaintiff a duty of care. In Florida, the duty of care is the other party’s legal responsibility to the injury victim. A person’s duty of care depends on many factors, including their age and relationship status to the victim. For instance, there are different duties of care for private citizens and their actions towards one another instead of the professional duty of care a medical provider has towards their patient. While a private citizen maintains a duty to drive safely and obey traffic rules, a nurse or doctor has a stricter duty of care to those they are treating than the average person. Similarly, the duty changes when the at-fault party is a business owner.