dangerous condition

Premise Liability Claims and Duties of Owners to Invitees

Posted by David Adelstein on September 01, 2018
Trial Perspectives / Comments Off on Premise Liability Claims and Duties of Owners to Invitees

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? 

The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about and which are not known to the invitee in a timely manner. The open and obvious danger doctrine may discharge the duty to warn, but it “does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” 

TruGreen Landcare, LLC v. LaCapra, 43 Fla.L.Weekly D2027a (Fla. 5th DCA 2018) (internal citations omitted).

The open and obvious doctrine, referred to above, is a defense to owners in a premise liability claim and applies to the second duty — the duty to warn of latent dangerous conditions / defects.  But, this duty does not apply to dangerous conditions / defects that are open and obvious. 

The open and obvious danger doctrine “provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.”  “This doctrine rests upon the generally accepted notion that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the ordinary use of their senses.”  In analyzing whether a danger is open and obvious, “the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

TruGreen Landcare, LLC, supra (internal citations omitted).

As mentioned, if a potentially dangerous condition on the property is open and obvious, i.e., it is not latent / hidden, than an owner has a strong defense to an injured invitee’s premise liability claim. However, this open and obvious defense does not apply when a plaintiff claims that an owner or possessor negligently maintained the property in a reasonably safe condition (and this caused their injury).   “Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious.”  TruGreen Landcare, LLC, supra

In TruGreen Landcare, LLC, the plaintiff bypassed a sidewalk and walked in a landscaped area in front of a movie theater in a plaza.  As he was walking in the landscaped area, he tripped and fell in a depressed area.  The landscaped area was surrounded by sidewalk and was referred to as a palm tree planter square which was a grassy area with artificial turf with a palm tree in the center.  The plaintiff sued, among other parties, the landscaper for negligently maintaining the landscaped area (palm tree planter square) in a reasonably safe condition. The landscaper contended that it owed no duty to the plaintiff to keep that area in a safe condition or warn of any dangerous condition because, as a matter of law, landscaped areas are not dangerous conditions.  The landscaper further argued that the issue that caused the plaintiff to trip was open and obvious.

Remember, the open and obvious defense does not apply when the plaintiff is claiming that the owner or possessor of the property negligently failed to maintain the property in a reasonably safe condition. While this is generally an issue of fact for the jury, there are:

[S]ome conditions [that] are considered so obvious and not inherently dangerous that they do not, as a matter of law, support liability for the breach of the duty to maintain the premises in a reasonably safe condition.  In particular, landscaping features “are generally found not to constitute a dangerous condition as a matter of law.”  Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose or to warn that they are not safe for walking.  In these situations, the rule “is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness.” 

TruGreen Landcare, LLC, supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein on April 08, 2018
Burden of Proof, Standard of Review / Comments Off on Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be.  It is also not a motion commonly granted.  But, this does not mean there are no appellate rights if a court denies a motion for directed verdict.  A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review.

An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate court reversed a trial court’s denial of a motion for directed verdict and remanded the case back to the trial court to enter judgment in favor of the defendant.  A devastating appellate outcome for a plaintiff that was victorious in the underlying jury trial.

In this case, an older couple was shopping at Publix and the wife slipped on water on the ground.  The husband did not witness the incident.  Both the husband and wife did testify that they saw an employee with a mop in his hand after the fall, but neither could testify the mop was wet or that the employee was using the mop.   However, video evidence revealed that the presumed employee only had been using a broom and dustpan. And, the store manager testified that Publix did not use pre-soaked cotton mops but used dry rayon mops for its floors.

The jury nevertheless returned a verdict for the wife for over $1.5 million in damages. 

On appeal, Publix claimed, among other things, that the trial court erred by not granting its motion for directed verdict.  The appellate court agreed.  The evidence at trial did not demonstrate that Publix had any actual knowledge of the water on the floor prompting the dangerous condition that the wife slipped on.   The evidence also did not demonstrate that Publix’s own employee caused the condition.  This was important evidence because the plaintiff was required to prove (remember, the plaintiff had the burden of proof) “that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche [plaintiff] to slip and fall.”  Publix Supermarkets, supra.   The plaintiff argued that Publix had actual knowledge because she and her husband both saw a man with a mop and he caused the water to be on the floor.   But, she only saw the man with the alleged mop after she fell.  “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. If the only way a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”  Publix Supermarkets, supra, (internal citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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