Slip and Fall

Court Considers Case Arising Out of Vacation Rental Slip-and-Fall

Published on: November 1, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Last month, a state appellate court issued an opinion in a personal injury case that raised an interesting issue that arises in many Florida slip-and-fall cases. The case presented the court with the opportunity to discuss the extent of the duty that was owed to the plaintiff by the defendant, who operated a vacation rental house that was rented out on a weekly basis. This is an important determination because Florida premises liability cases often turn on the extent of the duty the defendant owes to the plaintiff.

The Facts of the Case

The plaintiff was injured in a slip-and-fall accident in a vacation rental home that was owned by the defendants. According to the court’s recitation of the facts, the defendants rented the fully furnished house out for approximately six months, using the house themselves for the remaining portion of the year.

During the six months when the house was being rented out, the defendants used a property management company to handle the day-to-day affairs. The property management company advertised the home for rent, provided cleaning and linen services in between occupancies, and dealt with the check-in and check-out process.

Florida Premises Liability Claims and the State’s Recreational Use Statute

Published on: September 27, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, landowners are required to maintain their property in a reasonably safe condition for those whom they invite onto their land. As a general rule, a landowner must take care to either remedy all known hazards on their property or at least warn visitors of the presence of the hazard.

Importantly, a Florida slip-and-fall injury victim does not need to prove that the landowner had actual knowledge of a hazard in order to be successful. It is sufficient to establish that the landowner “should have known” about the hazard, given the surrounding circumstances. This is helpful to many Florida premises liability plaintiffs because landowners may not readily admit that they were aware of a hazard on their property.

Another wrinkle in Florida premises liability law is the state’s recreational use statute. Under Florida Statutes section 375.251, a landowner who allows their land to be used by the public for recreational purposes does not have a duty to keep the land safe or to warn those who use the land of any hazards. In order for the recreational use state to apply, the defendant cannot charge a fee for the use of their land. Additionally, the statute does not protect a landowner against “willful or malicious” conduct. However, this can be difficult to establish. A recent case illustrates a plaintiff’s attempt to establish a city’s “willful or malicious” conduct.

Florida Court Dismisses Slip-and-Fall Case, Finding the Hazard Causing the Plaintiff’s Fall Was “Open and Obvious”

Published on: September 13, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued an opinion in a Florida premise liability lawsuit discussing a landowner’s liability involving potentially hazardous conditions of the property. Specifically, the case dealt with a hazard that the court held to be “open and obvious.” The court held that because the hazard was easily observable by the plaintiff, the plaintiff was put on notice of the hazard’s existence and thus, the defendant could not be held liable for the plaintiff’s injuries.

The Facts of the Case

The plaintiff was exiting a movie theater when he left the paved sidewalk to cut through a planter box containing a large palm tree. The ground immediately around the base of the palm tree contained artificial turf and some paving bricks that had become uneven as the tree’s roots grew underneath.

As the plaintiff walked across the planter box, he tripped and fell in a divot in the ground. The plaintiff sustained serious injuries as a result of the fall and filed a premises liability lawsuit against the movie theater.

Court Rejects Plaintiff’s Parking-Lot Slip-and-Fall Case

Published on: September 7, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued an opinion in a personal injury case discussing the duty that a business has to maintain the area that customers use to approach the business. Ultimately, the court concluded that while a business may be responsible for maintaining the immediate area of approach, the business in this case was not liable for the plaintiff’s injury which occurred about 45 feet outside of the store’s doors in the parking lot.

The case presents an interesting issue for Florida slip-and-fall accident victims because it discusses which parties may be liable for the various areas in a commercial shopping center. Importantly, only the store was named in this case, and not the shopping center that owned and maintained the parking lot.

The Facts of the Case

The plaintiff was shopping at a Big Lots store when she slipped on a wet substance in the store’s parking lot while she was on her way back to her car. The location of the plaintiff’s fall was about 45 feet from the store’s door. The store was in a shopping center that was owned by another company, which was not named in the lawsuit.

Florida Court Attempts to Limit Class of Cases Subject to Burdensome Medical Malpractice Requirements

Published on: August 15, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.

Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.

Court Dismisses Slip-and-Fall Case, Finding that a Photograph Alone Was Insufficient to Establish the Defendant’s Knowledge of the Hazard

Published on: August 14, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In Florida slip-and-fall lawsuits, the plaintiff must present some evidence that the defendant landowner knew of the hazard and failed to take action. Courts, however, do not necessarily require plaintiffs to present evidence of a defendant’s actual knowledge. In some cases, a plaintiff may be able to meet their burden by establishing that the defendant had constructive knowledge of the hazard.Under Florida Statute section 768.0755, constructive knowledge can be established by circumstantial evidence in one of two ways:

The condition was present for such a length of time that the business should have known of its existence; or
The condition occurred frequently.

The type of evidence required to prove constructive knowledge varies depending on the surrounding circumstances. And as a recent case illustrates, establishing a defendant’s constructive knowledge may not be as simple as it initially seems.

Court Rejects Plaintiff’s Claim That She Was Distracted at Time of Accident

Published on: July 26, 2018 | by Friedman Rodman Frank & Estrada, P.A.

The ultimate question in Florida premises liability lawsuits is whether the defendant landowner was negligent in the maintenance of their property. In order to determine if a landowner is legally negligent, courts consider a variety of factors, including the relationship between the parties, the level of duty the defendant owed to the plaintiff, the type of hazard that caused the plaintiff’s injuries, whether the defendant knew or should have known about the hazard, and whether the hazard was obvious to the plaintiff.

Each of these factors can come into play when a court is determining if the defendant landowner was negligent. In Florida, even if a plaintiff shares in the fault, the case will proceed to trial so long as the evidence suggests that defendant was also negligent.

That being said, plaintiffs have the burden to establish that their case is sufficient as a matter of law before the case is sent to a jury for resolution. In order to meet this burden, a plaintiff must present evidence of each element of their claim. If a plaintiff cannot prevail at a trial based on a lack of evidence regarding a required element, then the court will dismiss the plaintiff’s case. A recent case illustrates one plaintiff’s unsuccessful attempt to establish her case against a fast-food restaurant.

Court Permits Slip-and-Fall Plaintiff to Proceed with Her Claim Against Large Retailer

Published on: May 12, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a personal injury case that raises interesting and important issues for Florida slip-and-fall accident victims. The case required the court to determine if the plaintiff’s case against Walmart should proceed toward trial when there was no actual evidence that the store was aware of the puddle that caused the plaintiff’s fall. Ultimately, the court concluded that Walmart’s “failure to educate” itself regarding a third party’s rental display gave rise to a potential theory of liability, and the plaintiff’s case should proceed toward trial.

The Facts of the Case

The plaintiff slipped and fell in a Walmart store near a Rug Doctor rental station. The rental station contained several carpet cleaning machines that Walmart shoppers could rent for the day. Pursuant to the agreement between Rug Doctor and Walmart, the rental kiosk was entirely self-sufficient, and no Walmart employees were trained on how to operate the kiosk or the machines.

A video of the period shortly before the plaintiff’s fall showed another customer rent a machine and struggle to get the machine into her cart. The video showed the customer tipping the machine back and forth, potentially causing water to spill; however, due to the quality of the video, no water can actually be seen. After the customer leaves, at least one Walmart employee is seen walking by the rental kiosk. A few minutes later, the plaintiff approaches the area and slips.

Court Dismisses Slip-and-Fall Case Based on Plaintiff’s Failure to Provide Specific Location of Injury

Published on: May 4, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued an opinion in a personal injury lawsuit regarding an issue that often arises in Florida slip-and-fall cases. Specifically, the case deals with the quantum of evidence a plaintiff must provide in order to present a legally sufficient case. Here, the court affirmed the trial court’s dismissal of the plaintiff’s lawsuit, finding that the plaintiff did not provide sufficient notice of the location of her injury.

The Facts of the Case

The case stemmed from an accident that the then-79-year-old plaintiff suffered when she was walking and tripped on a crack in the cement. Shortly after her accident, the woman filed a notice of lawsuit with the state’s city council. About two years after her notice of lawsuit, the plaintiff filed a complaint, alleging the city’s negligence for failing to properly maintain its sidewalk. In the lawsuit, she noted the location was “on or near” an off ramp. The city filed a motion for summary judgment, arguing that the location the plaintiff provided was insufficient to put the city on notice, and since the statute of limitations had passed, the plaintiff should not be granted leave to amend her lawsuit.

Procedural History

In the motion for summary judgment, the plaintiff argued that the city is a “sophisticated entity” and could have found the location of her injury by looking at a map. However, the trial judge granted the motion for summary judgment and agreed that, although the decision was harsh, the plaintiff’s notice was inadequate.

Court Finds Question of Whether Defendant Had Knowledge of Dangerous Condition Was a Matter for the Jury, Rejecting Defendant’s Motion for Summary Judgment

Published on: January 5, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Before most Florida personal injury cases reach trial, the court hears a motion for summary judgment from at least one of the parties. A motion for summary judgment asks the court to consider all of the uncontested evidence presented by both sides and make a legal ruling in favor of the moving party. Importantly, summary judgment motions can save an immense amount of time if properly filed and litigated. However, it is important to keep in mind that when there is a material issue of contested fact involved in a case, a motion for summary judgment is not appropriate.A recent case illustrated a court’s unwillingness to grant summary judgment to the defendant in a premises liability case when there was a question whether the defendant had knowledge of the dangerous condition causing the plaintiff’s injury.

The Facts of the Case

The plaintiff was visiting the defendant fast-food restaurant with some family members. After placing his order, the defendant began to walk back to the area of the restaurant where the tables were. As he was walking, he thought he heard a restaurant employee call his name. The plaintiff turned around and tripped on the leg of a high chair that was protruding out into the walkway. The plaintiff filed a premises liability lawsuit against the restaurant, arguing that the restaurant’s negligent placement of the high chair resulted in him tripping, falling, and sustaining serious bodily injuries.