Premises Liability in Florida
Learn from my 37 years of experience about premises liability claims, including how to prove a case.
Under Florida law, Florida premises liability cases have negligence-based elements that must be proven in order to successfully pursue a cause of action for damages. A victim should be aware of these issues before submitting an injury claim and be ready to provide admissible evidence that a duty of care has been established (meaning, the victim has a “prima facie” case).
Proving a Florida Premises Liability Claim:
1. Determining the Legal Status of the Plaintiff/Injury Victim (Invitee, Invited Licensee, Trespasser)
Your status at the time you were hurt at a business location or on commercial property is an essential element under Florida’s premises liability law. If you were a criminal trying to rob the store, for example, then Florida law doesn’t give you much right to get compensation for your injuries; certainly nowhere near the same rights as if you were an invited guest (business invitee) or paying customer.
An injury victim could be asked to show that he or she was on the property as an invitee, licensee, or even foreseeable trespasser in order to recover compensation.
Invitees or Invited Licensee
Invitees or invited licensees are those people who at the time and place of the accident were invited on the premises; premises which were owned by or in possession of the defendant. You are considered to be “invited” when you enter and remain on the property at the invitation of the business owner, which can be expressed or reasonably implied from the circumstances. Examples here are large retail stores (Walmart, Target, Home Depot, Lowes) or grocery stores (Publix and Winn Dixie). See, Byers v. Gunn, 81 So.2d 723 (Fla. 1955).
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).
2. Foreseeability by the Defendant
In Florida, the law seeks justice. However, no matter how serious someones’ injuries may be from an accident at a commercial location, a property or business owner will not be found liable for a victim’s injuries unless the victim can show the business owner breached a legal duty to the victim. Negligence based causes of actions (i.e. premises liability cases) are based on a breach of duty(s) to a victim, known victims or otherwise.
If a business owner could not foresee that there was danger and/or that someone on the property might get hurt, then Florida’s premises liability law will not hold that owner or possessor of the site of the accident responsible for damages. This is true even if the victim’s injuries are so serious that the victim ended up dying from injuries sustained in the accident.
Under the foreseeability doctrine, if danger or risk of harm is not foreseeable, then there is no legal duty owed to someone who gets hurt on their property or business premises. If there was no duty, then the defendant cannot be in breach.
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).
(Note: Plaintiffs can demonstrate foreseeability by using video surveillance, witness statements, maintenance plans and instances of similar accidents on the premises.)
3. Did the Property or Business Owner Act Reasonably?
Negligence, as defined for Florida Juries by the Florida Supreme Court in their Standard Jury Instructions 401.4, requires a business owner to act reasonably:
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.
As noted above, negligence is the basis of Florida’s premises liability law. Meaning, if you can prove a business owner did not act like a reasonably careful person, and you were injured because of that failure, then the business owner has breached his or her duty to keep you safe.
4. Res Ipsa Loquitur: Inferring Duty
Finally, a plaintiff may be able to infer a legal duty in a premises liability case based upon the factual circumstances of the accident. This happens via the legal doctrine of res ipsa loquitur (translation, the thing speaks for itself).
Res Ipsa Loquitur is a recognized legal doctrine in Florida, as well as the rest of the United States, which implies negligence simply based on the fact that the accident occurred and the victim was injured. 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.
More Elements to Prove A Premises Liability Claim in Florida
The above are key factors to establishing a defendant’s duty to keep visitors safe from danger and are common issues victims may have to address when trying to prove a premises liability claim in Florida.
Unfortunately, establishing a duty of care is just the first element in a negligence-based premises liability case: in these cases, a plaintiff must show 1) a duty of care owed to him or her; 2) there was a breach of that duty; 3) the breach caused an accident; and 4) the victim was harmed due to that breach in order to sustain his or her right to damages.
To learn more about these other issues, read Alan’s in-depth article on his personal injury blog titled: Florida 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.
Want to know more?
Since 1982, Alan Sackrin has represented clients throughout Florida in recovering monetary damages for slip & fall, trip & fall, and premises liability injuries. Alan is a Board Certified Civil Trial Expert that strives to protect the rights and best interest of his clients. Alan brings a high level of skill and representation to slip and fall cases. He offers a free and informative consultation, so call him today at 954-458-8655.
To learn more about Alan, see his bio.
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