Premises Liability

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.

Appellate Court Finds Insufficient Evidence in a Florida Slip-and-Fall Case

Published on: June 16, 2021 | by Friedman, Rodman & Frank, P.A.

Florida law requires businesses to keep their premises safe for customers. This includes keeping floors dry so that customers do not suffer slip-and-fall accidents. Those who are injured after slipping on a wet floor must show that a business had actual or constructive knowledge of the floor’s dangerous condition and should have done something to fix it.

Sometimes, plaintiffs can offer direct evidence to show that a business knew about a wet floor. For example, a waiter could testify that he saw a spilled drink on a restaurant floor. In other cases, accident victims must rely on circumstantial evidence to prove constructive knowledge. Plaintiffs demonstrate constructive knowledge by showing that a dangerous condition like a wet floor existed long enough that a business should have known about it, or that the condition happened with regularity at the business.

This month, a Florida appellate court issued an opinion in a slip-and-fall case that relied on circumstantial evidence to prove constructive knowledge of a wet floor. The court concluded that the plaintiff failed to prove constructive knowledge because her case relied on a series of “stacked” inferences.

Court Finds Defendant in Material Breach of Florida Premises Liability Settlement Agreement

Published on: June 9, 2021 | by Friedman, Rodman & Frank, P.A.

The Second District Court of Appeals recently issued a decision regarding a settlement agreement in a Florida premises liability case. The plaintiff appealed a final order enforcing a settlement agreement in favor of the defendants–a Health Center. Following a lawsuit against the Health Center, the parties entered into a settlement agreement which allowed the Health Center to satisfy the final judgment if they “timely made” thirteen monthly payments. The agreement included a specific payment schedule and stated that if a monthly payment is late, the defendant had ten days to cure it from the date the plaintiff made written notice.

The first two monthly payments were three days and two days late; in both situations, the Health Center promised that the payments were forthcoming. As such, the plaintiff refrained from sending the ten-day cure notice. After the Health Center failed to make the payment, the plaintiff moved for a default judgment; however, the parties agreed to reinstate the settlement. This pattern continued for the next several months; however, the defendants did not argue the validity or effectiveness of the settlement agreement. The defendant sent the final payment with a notice stating that they were expecting a release from judgment. The plaintiff rejected the final payment, arguing that the defendants were in breach of the agreement based on the late payments. The defendant moved to enforce the agreement.

In Florida, courts reviewing settlement agreements look to the ordinary meaning of the contract’s language. In this case, the agreement stated that the plaintiff would only accept the agreed-upon sum if the defendant made timely payments. Further, the agreement stated that the plaintiff could declare a default judgment if the payment were not received during the ten-day cure period. The defendant argued that the plaintiff’s acceptance of late payments rewrote the contract. The court explained that although subsequent conduct can modify terms in a contract, nothing in this situation indicated an intent to change the terms. Even though the plaintiff did not send a ten-day cure notice after the first two late payments, they did so at the third late payment. When the defendant did not respond, the plaintiff moved to declare a default judgment. Moreover, every receipt for subsequent payment stated that the payment was being accepted in “partial satisfaction of the Amended Final Judgment.” As such, the original settlement agreement terms remained effective.

Florida Court Rules on Recent Premises Liability Claim

Published on: May 14, 2021 | by Friedman, Rodman & Frank, P.A.

A federal appellate court recently issued an opinion in a Florida premises liability case, requiring the court to interpret a Florida statute. According to the record, the federal government operates an Air Force base, including a public beach with a public shower. A civil employee at the base and his wife filed a lawsuit for injuries the man suffered while using the shower. He alleged that the government allowed an algae film to grow on the shower surface and failed to warn the public of the danger. In response to the lawsuit, the government argued that the Federal Tort Claims Act (FTCA) and the state’s recreational-use statute, Fla. Stat § 375.251, provided immunity from the lawsuit. The plaintiffs argued that he was a business-visitor invitee because he worked at the Air Force base, and the statute did not apply. The lower court granted the government’s motion to dismiss, and the plaintiffs’ appealed.

The FTCA allows the government to be sued if a private person would be liable to the claimant under the law. Further, the state’s recreational use statute protects public outdoor recreation areas against ordinary premises liability. Under the statute, these qualifying owners do not owe a duty of care to keep their area safe for entry or use or to warn persons entering the area. In this case, the government argued that the statute bars the claim because the government is an “owner,” which provides the public access to the beach, an outdoor recreational area. Further, they argued that the plaintiffs were “persons” within the meaning of the state.

In an attempt to overcome the bar, the plaintiffs cited the statute’s subsection, precisely the term “others.” The plaintiffs suggested that the term referred to those invited onto the land for reasons other than business. They assert that there is a distinction between public invitees and business-visitor invitees. In reviewing the plain meaning of the term “others,” the court found that the term clearly and unambiguously refers to “persons.” The court found that even if the plaintiffs were business visitors invitees, which is unclear, the statute does not exempt that category of visitors. The court ultimately affirmed the lower court’s ruling, finding that the government did not waive its sovereign immunity.

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.