Premises Liability

“Open and Obvious” Dangers in Florida

Published on: November 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Slip and fall cases can be difficult to prove, particularly if the hazard that causes the fall is somewhat “open” or “obvious.” A recent case arose when a customer at Home Depot parked her car in a designated accessible parking space and upon returning to her car tripped over a wheel stop where her car was parked. It was a clear, sunny morning and she was carrying her purchases, a purse and keys.

The woman looked at the accessibility sign, but did not see the wheel stop because it was the same color as the parking lot. Her left foot caught on the wheel stop and she fell. She was hurt and had medical expenses. She and her husband filed a personal injury lawsuit against Home Depot.

The plaintiffs argued that the wheel stop was a dangerous condition and the defendant had an obligation to maintain the premises and to warn of any dangerous conditions on the property. Home Depot moved for summary judgment, arguing that the wheel stop was an “open and obvious” danger and therefore, it had no duty to warn customers about the wheel stop. It also argued there were no disputed issues of fact regarding its maintenance of the property.

When Must a Plaintiff’s Attorney Recuse Him or Herself in a Florida Trip and Fall Case?

Published on: September 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Trip and fall cases can be difficult to prove in Florida. A critical aspect of preparing a case is interviewing witnesses, including the property owner or manager. Usually an investigator does this investigation alone. Sometimes, an attorney accompanies the investigator, but this can raise certain risks, such as the risk that the attorney will become a witness. This is particularly likely in multi-party personal injury cases.

In a recent trip and fall case, a Florida appellate court considered whether an attorney had to be disqualified after becoming a witness. Subsequent to the initial appellate ruling, the appellate court granted a motion for rehearing and substituted a different opinion.

In the case, a plaintiff sued a store for personal injuries after tripping and falling near the store entrance in a shopping center. A guardrail had been taken away from a handicap access ramp, leaving a hole that the plaintiff tripped on. Her tibia and shoulder were broken, requiring surgery.

Duty to Preserve Evidence in Florida Premises Liability Cases

Published on: August 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

After you’re hurt in an accident, you might assume that the people who caused your injury will behave ethically, keeping any evidence that you may need at trial. Unfortunately, this is not always the case. The insurance carrier for a store, hospital or other entity is not on your side. Its duty is to its insured, not to you. That’s why it is critical to consult with a personal injury attorney immediately after an accident if you believe someone else might have been at fault.

The Florida Second District Court of Appeal considered the duty to preserve evidence in Florida premises liability cases. The ruling reached by the court was very unfavorable to plaintiffs and illustrates the importance of proactively retaining an attorney as soon as you are aware of injuries.

In the case, a woman slipped and fell in a store, shattering her wrist. She had two surgeries, but experts believed more surgeries would be needed later. Within a week of the incident, the woman and the store’s insurance carrier talked several times and she gave an insurance agent a statement. She told the agent she slipped two steps beyond the front door mat, which was wet from rain. She also told the agent how much time she missed from work and notified the agent of her need for surgery.

The Defense Goes Too Far While Arguing a Florida Premises Liability Case

Published on: August 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As we have explained in earlier posts, Florida has become a comparative negligence state. This means that a plaintiff whose own conduct contributes to his injuries will have his or her award reduced by the percentage of fault that can be attributed to him.

In a case decided last year, a plaintiff challenged the trial court’s judgment, which found her 80% comparatively negligent for her slip and fall at Wal-Mart, and also appealed the denial of her motion for new trial. The store cross-appealed on the grounds that the trial court had improperly dubbed its proposal for settlement invalid.

The case arose when the plaintiff slipped and fell in the store. She claimed there was something slippery on the floor and that she was injured such that she required neck and shoulder surgery.

What is Florida’s “Obvious Danger” Doctrine?

Published on: August 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida premise liability cases, the obvious danger doctrine allows a landowner to avoid liability where the condition that caused the injury was known or obvious to the person who was injured.

In a recent case, a woman sued a market after tripping on a mat outside the public entrance to the store. The woman and her husband went to the market to buy groceries. The couple couldn’t remember if the mat was present at the entrance when they entered the store. However, the woman did remember that she’d seen the mat in front of the door on prior trips to the store.

After they were done shopping the man took the shopping cart of purchases to the car while the woman stayed inside to buy some additional items. The man noticed that an employee was laying the mat at the door as he left. The mat was not perfectly flat.

When the woman left the store, she tripped on the mat and fell, injuring her neck, elbows and knees. Later the husband would testify that a representative of the store claimed they were at fault at the time. The woman filed a premises liability complaint against the store, alleging that it failed to warn of a dangerous condition.

Florida Appellate Court Applies Slip and Fall Law Retroactively

Published on: May 31, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida business owner owes two duties to those he or she invites into their business: (1) to take ordinary and reasonable care to keep the premises of the business safe and (2) to warn of any dangers actually or constructively known by the owner that the visitor to the business could not be aware of on his own.

In 2001, a ruling in a Florida Supreme Court case shifted the burden of proof to business owners who were sued when someone slipped and fell on a foreign substance on their premises. The owners had to show they exercised reasonable care in maintaining the property. This was a change from earlier case law that required the plaintiff to prove the owner’s negligence.

The Florida Legislature responded by enacting an amendment to the Florida statutes. The amendment took effect in 2010. It required that a plaintiff prove the breach of the second duty in slip and fall premises liability cases: that the owner knew or should have known of a slip and fall hazard in a business establishment. This essentially returned slip and fall law to the state it had been in before the Supreme Court’s 2001 ruling.

Recently, the Florida District Court of Appeals considered the issue of whether the amendment could have retroactive effect on a plaintiff’s case stemming from her slip and fall on the floor of the Miami International Airport. The plaintiff in that case filed suit in 2009. At that time the slip and fall statute in effect did not require the plaintiff to prove the owner’s actual or constructive knowledge of a transitory foreign substance in order to recover for premises liability.

Florida Court of Appeals Allows Condominium Resident to Sue Condominium Association

Published on: March 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Third District Court of Appeals handed down a ruling against a condominium association who failed to repair a buckled section of carpet in a common area of the condominium. The injured plaintiff and other condominium owners had repeatedly complained to the Board of Directors of the Association about the carpet, but the Association did nothing to remedy it. It was known that the carpet buckled especially after a cleaning while still wet.

The injured owner sued the Miami-based Association for failing to repair the carpet. She suffered injuries to arm, hand, and neck. The Association moved for summary judgment, alleging that there was no valid claim as the buckled carpet was an “open and obvious” hazard. The trial court agreed with the Association, dismissing the injured owner’s claim. The injured owner appealed, arguing that Association was under a duty to maintain the premises in a reasonably safe and serviceable condition for the residents, thus still responsible for repairing the carpet in the common area.

The Florida Court of Appeals looked to a previous decision, Kopf v. City of Miami Beach, 653 So. 2d 1046 (Fla. 3d DCA 1995). This case had similar facts, where the injured sued the City of Miami Beach after she tripped on a portion of sidewalk that was cracked and deteriorated. The City, like the condominium association, claimed that the danger was open and obvious, and the trial court precluded the plaintiff from suit. The Court of Appeals reversed the trial court’s ruling, stating that there were issues of negligence, comparative negligence, and causation which can only be resolved by the jury. The court did not feel that a landlord should be shielded from their duty and liability for their negligence, simply because the hazard could be seen.

In another case, Lotto v. Point East Two Condominium Corporation, Inc., 702 So. 2d 1361 (Fla. 3d DCA 1997), the injured tripped on a cracked sidewalk attached to the condominium complex. The injured sued, alleging that the association failed to warn of the dangerous condition and neglected to maintain the premises in a safe condition. The Court of Appeals thought the obvious danger did not merit a duty to warn, but the association was still under a duty to repair the sidewalk.

Ultimately, the Court of Appeals ruled that the condominium association had a duty to maintain the premises, but questions of comparative negligence by the injured remained. The court determined that the question of whether the injured plaintiff was also negligent should be given to a jury since she chose to repeatedly frequent an area that had an open and obvious danger. While the appellate court believed that the condominium association had a duty to repair, the court suggested that the injured plaintiff may also be found negligent, thus potentially reducing the association’s liability and obligation to make the injured plaintiff whole. In Florida, if a plaintiff is found comparatively negligent, but the defendant mostly negligent, the plaintiff may still recover, but the amount of recovery is reduced by the percentage of the plaintiff’s negligence.

Florida Apartment Shooting Generates Questions of Landlord Liability

Published on: February 21, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Recently in Florida, three people were shot while walking in an apartment’s public space by an unknown number of suspects. Two of three died from their injuries and one remained wounded. The apartment is in a gated residence. Crime in apartment complexes or other public spaces are common, and accountability and relief does not just come from the perpetrator of the crime, but from the owner of the premises.

A landlord can be held liable for a crime that occurs on his or her property by a third party if the crime is considered foreseeable and if the crime would have been considered preventable, had the owner put certain precautions in place. Much of the liability hinges on the relationship of the owner to the person injured on the property. If the injured party was a tenant or a guest of the tenant, or someone else invited onto the property by the owner, then the landlord has a duty to maintain a reasonably safe condition. They must also warn of any dangers that these same parties may not know themselves. However, if the people on the property were not invited, then the landlord does not have a duty to guard against third party crimes.

Florida courts have considered what is foreseeable. If other prior crimes of a similar nature have occurred on the premises, then that type of crime is considered foreseeable. (See Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d D.C.A. 2001)). Also, if the area is a “high crime” area, where similar crimes occurred in temporal and geographic proximity to the apartment, then liability for a crime on the premises could be created.

Some Florida courts have extended beyond similar crimes or crimes that have occurred in a specific geographic proximity. The Fourth District Court of Appeals has allowed evidence of dissimilar crimes and the Third District allowed evidence of crimes in an area outside of the premises so long as they weren’t ‘substantial distances away’. (See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th D.C.A. 1991) and Lomillo v. Howard Johnsons Co., 471 So. 2d 1296, 1297 (Fla. 3d DCA 1985).)

Landlords are liable for accidents and injuries beyond criminal acts that occur on the premises. If an accident occurs because of damaged property or negligently maintained structures, then the landlord is also liable to any occupant or other invited guest. A landlord must maintain safe and healthy premises, and should not leave common spaces in disrepair. Poorly lit hallways or slippery stairs may contribute to a fall which can lead to expensive medical care.