Premises Liability

Court Allows Florida Injury Victim to Pursue Punitive Damages Against Ride Owner

Published on: May 16, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In April 2019, a state appellate court issued a written opinion in a Florida personal injury lawsuit determining whether the lower court properly allowed the plaintiff leave to amend her complaint to add punitive damages in her claim against the defendant. Ultimately, the court determined that it did not have the authority to review the lower court’s decision.

According to the court’s opinion, a minor child was injured while on a ride called the “Psycho Swing.” The defendant owned the ride. The girl’s parents filed a personal injury lawsuit against the defendant and several other parties, including the employees operating the ride at the time of their daughter’s injury. The plaintiffs claimed that the ride was missing “crucial safety equipment, safety instructions, etc.” Specifically, the plaintiff contended that the defendant was negligent in renting out the ride without a safety harness or instructions.

Initially, the plaintiffs claim only included a request for compensatory damages. However, after obtaining additional information, the plaintiff’s sought to amend their complaint to seek punitive damages. The court granted the plaintiff’s request, and the defendant appealed the court’s decision immediately.

Florida Lawmakers Provide Important Protections to Firefighters and Law Enforcement Officers

Published on: May 9, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Under general Florida premises liability law, a landowner has an obligation to ensure that their property is safe for those whom they allow onto their land. In Florida, as is the case in many states, the duty owed to a guest depends mainly on the reason for the guest’s visit. (Note: while trespassers may also be owed a duty under certain situations, that duty is limited and not discussed in this post.)

In general, there are two categories of welcome guests under Florida premises liability law. First, a licensee is someone who enters the landowner’s property for mutual benefit. Typically, these are family members, friends, and social guests. Licensees must be warned about any hazards that are known to the property owner but not obviously visible. The second category of visitor is an invitee. An invitee is someone who enters another’s property for the benefit of the landowner. Historically, invitees were limited to customers or those who entered another’s land for business purposes.

Of course, there are exceptions to these general principles. One of these exceptions is called the “firefighter’s rule.” Over the years, courts developed a rule that firefighter’s and other emergency responders could not hold a property owner liable for injuries they sustained while on the landowner’s property. The firefighter’s rule was based on the principle of “assumption of the risk,” meaning that a firefighter should be aware that her profession is a dangerous one and, by agreeing to serve in that capacity, she accepts and adopts those risks. Of course, this severely limits a firefighter’s ability to recover for her injuries when they are injured on the job, even when their injuries are the result of a landowner’s negligence.

Can a Florida Property Owner Be Liable if Someone Drowns in Their Swimming Pool?

Published on: April 29, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Given the beautiful weather in the Sunshine State, it is no surprise that swimming pools are common across Florida. In fact, it is estimated that there are over 1.1 million swimming pools in Florida. While the majority of property owners include the necessary safety features when putting in a swimming pool. Swimming pools still present a significant hazard, especially to children.

Because swimming pools are so popular, there are a correspondingly high number of Florida personal injury and wrongful death claims based on Florida swimming pool accidents. Realizing that drowning is the leading cause of death among Florida children, lawmakers passed the Residential Swimming Pool Safety Act (RSPSA).

The RSPSA acknowledges that the most effective way to avoid a drowning death is supervision by a responsible adult. Of course, many Florida swimming pool accidents occur without an adult being present. This often occurs when a child is able to make their way to the pool unbeknownst to adults. Thus, the RSPSA requires that all Florida swimming pools contain at least one of the following safety features:

Florida Premises Liability Based on a Third-Party’s Criminal Activity

Published on: March 22, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Frequently, this blog discusses cases involving a landowner’s duty to keep their property in a reasonably safe condition, or to warn visitors of known hazards. Most often, the dangers we refer to in these cases involve some defect with the property itself. However, Florida premises liability cases are not limited to these types of situations.

In some cases, a landowner can be held responsible for the criminal acts of a third party. While these cases are often referred to as Florida negligent security cases, they are actually based on the traditional theories of negligence. Thus, under Florida law, to establish that a landowner is liable for the intentional criminal acts of a third party, the plaintiff must be able to prove that the landowner did not act with reasonable care to prevent such criminal conduct. Most importantly, this requires the plaintiff to establish that the third-party’s conduct was foreseeable.

A recent state appellate decision illustrates how courts view this type of premises liability claim, and the kind of evidence that may be required to establish a landowner’s liability.

The Limits of Florida’s Recreational Use Statute

Published on: February 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

While Florida landowners generally owe a duty to keep their property safe and to warn visitors of any dangerous conditions on their land, Florida lawmakers have created an exception in the state’s recreational use statute. The Florida recreational use statute was passed “to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability.”

Thus, under Florida statutes section 375.251, a landowner who allows the public to use their property for recreational purposes “owes no duty of care to keep that park area or land safe for entry or use by others, or to give warning to persons entering or going on that park area or land of any hazardous conditions, structures, or activities thereon.” However, the recreational use statute only applies if the landowner derives no commercial benefit from the use of their property.

There are limits to the protection that the recreational use statute provides to landowners, however. For example, the statute does not protect against the “deliberate, willful or malicious injury to persons or property.” A recent federal appellate case illustrates the type of scenario where the recreational use statute may not apply.

What Is an Attractive Nuisance under Florida Personal Injury Law?

Published on: February 21, 2019 | by Friedman Rodman Frank & Estrada, P.A.

As a general matter, all property owners have an affirmative duty to protect those whom they invite onto their property, and many – if not most – Florida premises liability cases arise based on this type of relationship. However, landowners also owe a duty to protect trespassers in certain circumstances.

Under Florida Statutes section 768.075, the general rule is that landowners do not owe a duty of care to any trespassers who come onto their property. However, the statute also provides several situations where a landowner can be liable for even a trespasser’s injuries. For example, a landowner must “refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser.” While this is an uncommon scenario, a far more typical case of landowner liability is under the attractive nuisance doctrine.

The Attractive Nuisance Doctrine

While section 768.075 clearly states that a landowner does not owe a duty to trespassers in most situations, the statute also notes that it “shall not be interpreted or construed to alter the common law as it pertains to the attractive nuisance doctrine.” The attractive nuisance doctrine is an old common-law doctrine that allows for a landowner to be held liable for a child’s injuries if the child was injured by an object or feature on the defendant’s land that is likely to attract children. A classic example of an attractive nuisance is a swimming pool.

Florida Court Finds Condo Association May Be Liable for Injuries Caused by Uneven Sidewalk

Published on: February 11, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida premises liability lawsuit discussing whether the plaintiff’s case should be able to proceed toward trial despite the fact that the hazard causing her fall was open and obvious. The court concluded that, despite the obvious nature of the hazard, the defendant condo association was not relieved from repairing the known hazard. Thus, the court held that while the plaintiff could not proceed with a failure-to-warn claim against the defendant, her claim based on negligent maintenance of the property.

The Plaintiff’s Injuries

As the court explained the facts in its opinion, the plaintiff owned property in the defendant condo association and had lived there for the past 15 years. One day, the plaintiff was walking on the sidewalk in an area where she regularly traveled when she tripped on an unlevel sidewalk. The plaintiff sustained serious injuries as a result of the fall and filed a Florida personal injury case naming the condo association as a defendant.

In a pre-trial motion for summary judgment, the condo association argued that the unlevel sidewalk was an open and obvious hazard and because of that, the plaintiff could not recover for her injuries. The trial court agreed, finding that as a matter of law, uneven pavement is considered an open and obvious hazard, and dismissed the plaintiff’s case. The plaintiff filed an appeal.

Establishing Liability in Florida Swimming Pool Accidents

Published on: January 25, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida is unique in that parts of the state enjoy over 170 days of sunshine each year. As a result, swimming pools are common across the state. However, swimming pools present serious dangers to children, and those who own or operate swimming pools must take precautions to guard against accident drownings.

Florida swimming pool deaths can occur either at a public or private pool. In either event, pool owners have a responsibly to install specific safety measures and, in some cases, to provide adequate supervision. A recent opinion issued by a state appellate court discusses a tragic death that occurred at a government-run swimming pool.

The Facts

According to the court’s recitation of the facts, the plaintiff’s daughter was on a field trip to a water park that was run by the local parks and recreation department. Prior to allowing her daughter to go on the trip, the plaintiff contacted the playground coordinator at the park, explaining that her daughter does not know how to swim. The coordinator assured the plaintiff that her daughter would be assessed before she would be allowed into the deeper areas of the pool. However, the young girl tragically drowned while department staff members were changing in the locker room.

Florida Court Determines Residential Community Is Not Liable for Car Accident Allegedly Caused by Dangerous Parking Policy

Published on: January 15, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida car accident case discussing whether a private residential community could be held liable for the injuries sustained by motorists who were involved in a collision within the community. Ultimately, the court concluded that any alleged negligence of the community was not the proximate cause of the car accident, and thus the plaintiff’s case was dismissed.

The Facts of the Case

According to the court’s opinion, the plaintiffs were driving through a residential community when another motorist rear-ended them. Evidently, the plaintiffs’ vehicle had come to a stop to allow oncoming trucks to pass through a narrow area of the road where there were cars parked on both sides of the street. As the plaintiffs waited for the vehicles to pass, they were rear-ended.

The plaintiffs filed a Florida personal injury lawsuit against the motorist that struck their vehicle as well as the residential community. In support of their claim against the residential community, the plaintiffs cited a city code that prohibited parking on both sides of the street. Apparently, when the community was first created parking was only permitted in the driveways of residents’ homes; however, after discovering that this policy resulted in a severe parking shortage, the community allowed parking on both sides of the street. The plaintiffs claimed that by allowing residents to park on both sides of the road in violation of the city ordinance, the residential community was partially responsible for the accident.

Court Discusses Permissible Scope of Liability Release Waiver in Recent Florida Car Accident Case

Published on: January 11, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida car accident case requiring the court to determine if a liability release waiver signed by the plaintiff prevented her from pursuing a case against the defendant. Ultimately, the court concluded that the scope of the release waiver did not include the specific type of claim brought by the plaintiff.

The Facts of the Case

According to the court’s written opinion, the plaintiff was run over by a pick-up truck while she was attending a race at the Daytona International Speedway. Evidently, before the accident, employees of the speedway instructed the tow-truck driver to back the truck up into the area where the plaintiff was standing.

As a condition of allowing the plaintiff into the raceway, the racetrack asked that she sign a release of liability waiver. In essence, that waiver stated that the plaintiff acknowledged that there were dangers associated with standing on or near the raceway and that she agreed not to pursue any claims if she was injured due to “any negligent” actions of the defendant.