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Premises Liability

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Premises Liability

Proving A Premises Liability Claim

In any Florida premises liability case, every claim or lawsuit will have certain elements or areas that make up your premises liability cause of action for damages under Florida law. You will need to understand these factors in your injury case and be ready to provide evidence to prove your claim (your “prima facie case”) regarding these areas.

Elements of Proof in a Florida Premises Liability Lawsuit or Claim Include:

1. Determining the Legal Status of the Plaintiff Injury Victim (Invitee, Invited Licensee, Trespasser)

The reason that you were at the business location or on the commercial property at the time that you were injured and hurt is a big deal in Florida accident law. If you were a criminal there to rob the store, for example, then Florida law doesn’t give you as much right to be paid for damages sustained while you are at the commercial location as if you were an invited guest or paying customer.

Evidence that an injured victim must be prepared to show is that he or she was on the property as an invitee, licensee, or even foreseeable trespasser; therefore proving he was due a legal duty by the defendant.

Invitees or Invited Licensee

Invitees or invited licensees are those folk who at the time and place of the accident were invited on the premises owned by or in possession of the defendant. You are invited when you enter and remain on the property at their invitation, which can be express or reasonably implied from the circumstances.   See, Byers v. Gunn, 81 So.2d 723 (Fla. 1955); Crutchfield v. Adams, 152 So.2d 808 (Fla. 1st DCA 1963); Seaboard Air Line Railroad. Co. v. Branham, 99 So.2d 621 (Fla. 3d DCA 1958).


Trespassers whose presence is foreseeable by the defendant may have a claim for damages if, at the time and place of the incident, the defendant who owned or had possession of the premises knew of a condition there which involved an unreasonable risk of harm to another person. If so, then that defendant will have a legal duty to use reasonable care to warn the other person of the condition and the risk involved.

However, that duty extends only if the presence of that uninvited person is known or reasonably foreseeable by the owner or possessor while the trespasser neither knew nor should have known of the dangerous condition and risk by the use of reasonable care. See, Cockerham v. Vaughan, Inc., 82 So.2d 890 (Fla. 1955).

Read – Florida’s Premises Liability Law

2. Foreseeability By Defendant

In Florida, law seeks justice and no matter how serious the injuries may be from an accident on the business property or commercial location, that defendant will not be found liable for those injuries and their resulting damages unless they can be shown to have breached a legal duty to the person that was hurt.

If the defendant could not foresee that there was danger and that someone on the property might get hurt and injured there, then premises liability law will not hold that owner or possessor of the site of the accident responsible for damages, even if they are so serious that the victim ended up dying from injuries sustained in the accident.

Foreseeability of harm is a legal doctrine that is critical to every premises liability claim. If the danger or risk of harm was not foreseeable, then there was no legal duty. If there was no duty, then the defendant cannot be shown to be in breach.

All injury plaintiffs must be ready to demonstrate that their accident was foreseeable by the defendant in order to prove a legal duty was owed to them.

Foreseeability Is Key to Defining Duty of Defendant

Why? In Florida law, as explained by the Florida Supreme Court in McCain v. Florida Power Corporation:

Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:

Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)) (emphasis added); see Webb v. Glades Elec. Coop., Inc., 521 So.2d 258 (Fla. 2d DCA 1988).

 Thus, as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken. J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912).

Negligence defined as Breach of Duty

Negligence, as defined for Florida Juries by the Florida Supreme Court in their Standard Jury Instructions 401.4, requires foreseeability of the possible harm:

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

3. Res Ipsa Loquitur: Inferring Duty

Finally, the plaintiff must be ready to show with evidence that in some situations, that legal duty can be inferred based upon the factual circumstances. This is done via the legal doctrine of res ipsa loquitur.

Res Ipsa Loquitur is a recognized legal doctrine in Florida as well as the rest of the United States. Here, the jury must find four conditions:

  • ordinarily the accident and injury would not have happened without negligence,
  • the item causing the injury was in the exclusive control of the defendant at the time it caused the injury,
  • It was in the exclusive control of the defendant at the time of the negligent act or omission, if any, must have occurred and
  • after leaving the defendant’s control, it was not improperly used or handled by others or subjected to harmful forces or conditions.

If these 4 factors are shown, then under the doctrine of “res ipsa loquitur,” the jury will be instructed by the judge to infer that the defendant was negligent unless, taking into consideration all of the evidence in the case, there are other reasons for the jury to find that the accident was not due to any negligence on the part of the defendant.

See, Burkett v. Panama City Coca-Cola Bottling Co., 93 So.2d 580 (Fla. 1957).

Premises Liability Proof Involves Many Areas or Elements

These are not the only legal elements or areas of a premises liability case in Florida but they are examples of common legal issues present in all premises liability cases and the burden of proof these cases must meet.

They are three key factors to establishing the defendant’s duty to keep the victim safe from danger and therefore, the defendant’s negligence when that duty was breached and the accident occurred.

Duty is the first element of the burden of proof in a negligence case: the plaintiff must show duty, breach, cause and harm in order to sustain his or her right to damages. Read more, Florida’s Premises Liability Law.

Quick Slip And Fall Facts:

Slip and falls are the second leading cause of injuries and deaths after car accidents. Every hour an older adult dies as a result of a fall. The most common injuries resulting from slip and falls include, herniated disc, head injury and/or a knee injury. Learn more from Alan Sackrin, an expert slip and fall lawyer.


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