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Premises Liability

There are few areas in the law of negligence in which the concept of duty has been more significant in expanding and limiting civil liability than the area of “premises liability.” A premises liability action is a type of negligence action with a limitations period of four years. Premises liability law is based on the need to balance property rights and interests afforded to the landowner with the need to protect others from unreasonable harm. In normal negligence cases, the defendant owes the plaintiff a duty of reasonable care, irrespective of the relationship between the defendant and plaintiff, but in premises liability cases, the defendant's duty to the plaintiff is reliant on the plaintiff's status to the land. Put another way, various duties of care are imposed on landowners depending upon the cause of the harm and, in appropriate cases, the status of the entrant. The three classes of entrants in the order of increasing status are trespassers, licensees, and invitees.

A plaintiff in a premises liability case must allege the defendant's duty to the plaintiff and the defendant's breach of that duty by alleging ultimate facts that show a relationship from which a duty is implied by law, and the acts and omissions that caused the injury, together with the allegation that they were negligently done or omitted; that the defendant had possession and control of the injury-causing instrumentality; that the defendant failed to warn the plaintiff of concealed dangers; and that the plaintiff's injury was a proximate cause of the defendant's negligence.

It is important to know that it is not ownership of property that determines one's liability for injuries to persons entering on the property, but, rather, failure of the person who is in actual possession and control, be it owner, agent, lessee, construction contractor, or other possessor with authority or control, to use due care with respect to such persons.

Distinction Between Invitees, Licensees and Trespassers

An invitee is defined as someone who entered the premises of another for purposes connected with the business of the owner or occupier. A person may be an invited licensee either by express invitation or by invitation, which can reasonably be implied from the circumstances. The uninvited licensee is a person who chooses to come upon the premises solely for his own convenience without invitation either expressed or reasonably implied under the circumstances. The owner will owe the uninvited licensee a duty to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers, which would not be open to his ordinary observation.

There are two basic duties owed by a landowner to an invitee: 1) to use reasonable care in keeping and maintaining the premises in a reasonably safe condition; and 2) to give the invitee warning of concealed perils which are known or should be known to the landowner, and which are unknown to the invite and cannot be discovered by him through the exercise of due care.

A trespasser is one who enters the owner’s property for his own convenience without right or authority. The common law rule as to trespassers is that the land owner has the duty to avoid willful and wanton harm to him and upon discovery of his presence, to warn him of known dangers which cannot be discovered with ordinary observation.

Common Examples of Premises Liability
  • Cracked or Elevated Sidewalks: Liability may arise in the event that a sidewalk is broken and uneven.

  • Parking Lots and Driveways: The dangerous condition of a parking lot may give rise to premises liability even where the injury occurs outside of the property line. For example, a nightclub’s duty of care to its invitees may extend to a nearby parking lot that is used by the invitees patronizing the club, where it is a foreseeable zone of risk.

  • Slippery Floors

  • Improper / Negligent security

  • Attractive Nuisances: This occurs when a child is lured or attracted onto the property by virtue of the condition which caused the child's injury

  • Negligence of the Owner / Other Conditions: Dangerous conditions leading to premises liability may be found to exist with respect to the exterior conditions of the property, relating to -

    • the means of ingress and egress to the property.
    • approaches and entrances to buildings.
    • entrance ramps.
    • public telephones at the front of the building.
    • loose objects on the outside grounds.
    • broken glass in a children's play area.
    • a badly deteriorated handrail.
    • lack of adequate outside lighting.
Defenses to Premises Liability Claims Comparative Negligence

The comparative negligence rule is applied in premises liability cases. If the plaintiff and the defendant are both at fault, the former may recover, but the amount of his or her recovery is only such proportion of the entire damages that the plaintiff sustained as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant.

Assumption of Risk

The defense of implied assumption of the risk merges with comparative negligence.

Express Assumption of the Risk

Express assumption of the risk arises only in the case of a contract, or by voluntary participation in a sport, and where it is clear that a plaintiff understood that he or she was assuming the risk of the defendant's conduct, which resulted in the injuries suffered.

“Open and Obvious” Conditions and the Duty to Warn

Under Florida law, an invitee is obligated to exercise a reasonable degree of care to observe “open and obvious” conditions. Owners and possessors of land are entitled to assume that invitees will perceive “open and obvious” conditions, and are not liable for failing to warn of those conditions. Thus, under the “open and obvious” defense, a defendant landowner or possessor is not responsible for injury to an invitee when that individual could have reasonably avoided the condition.

Step-in-the-Dark Rule

Under the so-called step-in-the-dark rule, a person who proceeds in the dark and suffers an injury because of encountering a dangerous condition of which he or she should have been aware is negligent as a matter of law. The basic essentials to application of the rule are: (1) darkness that makes “ineffectual” the normal use of one's eyes; and (2) an unfamiliar area or situation wherein an injured person has no right to assume that his or her course is clear, unobstructed, or without defect. For example, a visitor in an apartment house is negligent as a matter of law in attempting to walk down the outside steps of the apartment house in the dark, and in misjudging the width of a step and falling, where the visitor previously had entered the apartment house while lights were burning but on leaving made no attempt to obtain a light even though the visitor was aware of the darkness of the premises.

Natural Conditions on Property

Generally, premises owners and occupants are not liable for natural conditions that are present on the premises.

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Real estate attorney Andrew J. Pascale has experience representing clients in premises liability claims and is committed to achieving the best result for each client he serves. Call now.

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