Premises Liability

When an accident or injury occurs to a visitor or tenant living on another person’s property, the owner of the property may be liable (legally responsible) if it can be proved that their negligence led to the injury.


If you've suffered an injury of this type which you believe may be a result the negligence of another person, you may be able to file a lawsuit to recover the costs involved to pay for your medical bills, any lost earnings or other pain, disfigurement, emotional distress or permanent physical disability you have suffered. Injuries on properties can include those from:
  • Slip and fall accidents
  • Dog bites or maulings
  • Exposure to toxic or hazardous substances such as lead or mold
In cases involving premises liability, plaintiffs must prove that the property owners either failed to maintain the property or created unsafe conditions which caused the injury, knew about the unsafe hazard but didn't alert visitors or tenants to this fact, was not careful concerning unsafe conditions which might attract children, or took actions or neglected conditions that caused damage to a neighbouring property.

It is the established rule of law in Florida that a possessor of land owes two duties to an invitee:

1) to use reasonable care in maintaining the premises in a reasonably safe condition; and

2) to give the invitee warning of concealed perils which are or should be known to the landowner and which are unknown to the invitee and cannot be discovered by her through the exercise of due care. Knight v. Waltman, 774 So. 2d 731 (Fla. 2d DCA 2000).

Furthermore, a possessor of land is liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known to the invitee if the possessor should anticipate the harm, despite the knowledge or obviousness of the situation. Restatement (Second) of Torts, sec. 343A; Lynch v. Brown, 489 So. 2d 65 (Fla. 1st DCA 1986).

Most recently, in Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla. 2002), the Supreme Court of Florida held that, once an injured shopper establishes that were injured by a “transitory foreign object” (solid or liquid) being where it should not be, negligence of the business is presumed, and the store owner must then prove that reasonable care was exercised in maintaining the premises “under the circumstances”, which could include the nature of the specific hazard and the nature of the business.
 
Reacting to the Supreme Court’s initiative, the 2002 Florida legislature promptly passed Florida Statute section 768.0710, recognizing the duty of a business owner to keep the premises free of transitory foreign objects or substances which might forseeably give rise to injury. It provides as follows:

768.0710. Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises-

(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.

(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:

(a) The person or entity in possession or control of the business premises owed a duty to the claimant;

(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and

(c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

Thus, a customer injured in this manner must prove only that the business failed to exercise reasonable care in the maintenance, inspection, repair, warning or mode of operation of the premises. The owner’s actual or constructive knowledge is no longer a required element of proving such a claim, but evidence of notice or lack thereof may still be considered together with all the evidence. In Melkonian v. Broward County Bd. of County Com'rs, 844 So.2d 785 (Fla. 4th DCA 2003), the court held that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition. Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of the evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.






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