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Premises liability law in Florida covers a wide range of potential accidents and a virtually unlimited number of potential scenarios. Premises liability is a subset of negligence law. To gain a better understanding of how this works in Florida, we want to walk you through everything the plaintiff and defendant in a premises liability case need to establish in order to win this type of civil lawsuit.
4 Things to Prove
If you were injured in an accident and believe the owner of the property is responsible, you are responsible for proving four things:
- That you were owed a duty of care
- That the duty of care was breached
- That the breach caused you injury
- That the injury inflicted actual damage on you
It must be emphasized that all four elements must be present, or the plaintiff will lose the case. Consider this example--you’re playing softball at a holiday picnic. The owner of the large property is allowing the game to go forward despite knowing there are uneven spots in the grass, and even little holes that may have been dug by animals. When you aggressively round first base and head to second, your foot catches in one of these holes and you twist your ankle.
Further down we’re going to explore why the first three elements of premises liability are present in this circumstance. But for now, our scenario assumes that your ankle was twisted, you didn’t have to go to the emergency room, and you work in an office job that won’t be impacted by the injury.
In other words, the twist might have been scary, and may have even caused a great deal of pain, but it didn’t result in real damages--lost income, medical bills, etc. Thus, your scenario failed to meet the four-pronged threshold.
3 Types of Visitors
The duty of care owed to visitors is the first key principle in premises liability and varies depending on what type of visitor you are. The number of reasons you’re on someone else’s property are vast, but Florida law concisely narrows them down to three categories:
- Invitees
- Licensees
- Trespassers
These are listed in order of importance, with invitees being owed the highest duty of care. In our softball game example, you were presumably an invited guest. The host had a responsibility to either ensure the lawn was safe to play softball or, at the very least, advise everyone to set up the bases to avoid obvious dangerous areas.
In a similar vein, perhaps this same property owner has a pool that is part of the festivities. There are likely children running around on slippery surfaces. The owner has an obligation to make certain that other parents are aware of how deep the pool is and where the most likely risks are.
A licensee is similar to an invitee and the duty of care owed is comparable. The key difference is that a licensee was not directly invited, but has what the state of Florida terms “an objectively reasonable belief that he or she has been invited or is otherwise welcome…”
The prime example of this is customers at a business. If you’re grocery shopping at Publix and slip and fall on a puddle of water that was never mopped up, you don’t need to present a formal invitation to a judge to establish the duty of care you were owed. If you’re at a business that is obviously open to the public, then a duty of care to those who enter is presumed.
A part of that duty of care is making certain the business is safe for someone to casually walk around in. It’s not presumed you, as the customer, must be on high alert, expecting the floor will be wet. The store is at least responsible for making an announcement that there’s a spill in Aisle 3, so its customers (licensees) are aware.
Now we come to the trespasser. Not all trespassers are considered the same under the law and, depending on the circumstances, they may be owed a limited duty of care. Here in Florida, we have more swimming pools than colder states. Pools are attractive to kids who wander through a neighborhood. Now you’ve made it perfectly clear to your eight-year-old son that he’s not, under any circumstances, to go into someone else’s pool without an expressed invitation. But he’s also an eight-year-old. They do things they aren’t supposed to do and sneaking into a pool uninvited might be one of those things. In this case, there was no fence around the pool, no warning of deep water and your son ended up in over his head. Thankfully, the worst tragedy was averted, but he was still underwater for a substantial period. You are now facing medical bills and recovery time, to say nothing of helping your son recover from trauma.
Do you have a case? There’s a good chance you do. Florida law will not treat your son as though he’s just another trespasser. The law understands that there is a large distinction to be made between an overly ambitious boy and a less benign form of trespasser (e.g., a burglar).
2 Important Concepts
Are you worried that if you exercise your legal rights in the state of Florida you’ll be making it impossible for anyone else to throw a party, run a business or even put a pool in their backyard? Don’t be. Your lawsuit is not an attempt to tell people they have a responsibility to stop all bad things from happening to you or your family. What premises liability law does require is that other people consider reasonability and foreseeability.
This means that in whatever circumstance each individual case presents, the question the courts will ask is “What would a reasonable and prudent person have done facing this situation?”
At our holiday picnic, did the property owner tell you and the other softball players that you might want to consider setting up the basepaths a little differently, given the location of dips and holes in the lawn? Or suggest maybe playing volleyball at the opposite end of the lawn? Did they tell all the visiting parents that the pool had a deep end that the small children would need to be careful of? Was there a sign with Pool Rules posted, including admonitions not to run along the side, lest slipping on wet concrete?
In the Publix store, was an announcement immediately (not three hours after the spill) made and an employee promptly dispatched to clean up the mess? That’s called taking reasonable steps to address the risk.
Does our pool owner live in a neighborhood with very few, if any, young children around? If the answer is no, then a court might determine the foreseeability factor was not there--at least not to the same degree it would have been for a homeowner who sees kids lined up at the bus stop every day.
If the property owner did not take prudent steps against reasonably foreseeable risks—the kind of steps you would have taken had the roles been reversed—then you have a case It’s the job of the plaintiff’s lawyer to establish that the defendant was imprudent.
1 Final Reminder
In the legal battles to establish the four principles covered at the beginning of this article, it’s important to remember this--premises liability cases are not, at least typically, criminal law cases. They are civil lawsuits. This means the principle of reasonable doubt is not the deciding factor at court. Instead, civil cases swing on the principle of more likely than not.
This is a decided advantage to the plaintiff--they need only establish their case with 50.1 percent certainty, as opposed to the 95-100 percent certainty that comes with proving something beyond a reasonable doubt.
That means if you’ve been injured on someone’s property, don’t just walk away without exploring your legal options. You may well have a very reasonable case where it’s more likely than not that your duty of care was breached.
The Law Offices of Jason K.S. Porter, P.A has a demonstrated track record of delivering for our clients. We bring both sharp human knowledge and soft human compassion to our push to obtain justice for those we serve. Let us talk to you about your case. Give us a call at (904) 701-0591 or just drop a note here online and we’ll set up a time to meet you on a Zoom conference.