premise liability

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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Applying the Tipsy Coachman Doctrine

Posted by David Adelstein on May 09, 2015
Appeal / Comments Off on Applying the Tipsy Coachman Doctrine

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In a previous article, I discussed the appellate doctrine known as the tipsy coachman doctrine, which stands for the principle that an appellate court can affirm a trial court even if the trial court reached the right result (supported by the record) but for the wrong reasons. This doctrine allows an appellee (party prevailing in the trial court and responding to appeal) that is arguing to affirm the trial court’s ruling to present any argument on appeal supported by the record even if that argument was not raised in the trial court. Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999).

For instance, a premise liability action is a type of negligence action where an invitee or attendee gets injured on another’s property.   The very first element to prove in any negligent action is that the defendant owed the plaintiff a duty of care. In a premise liability action, if a defendant is deemed to exercise control over the premises / property, the defendant owes a duty of care to keep the premises / property reasonably safe and warn others of latent perils and dangers on the premises / property.

Assume in this type of premise liability action, an attendee at a festival or outdoor event tripped and injured himself/herself over some exposed material penetrating from the ground. The attendee sued the organizers of the festival or event in a premise liability action. The festival argued that it had no duty to the attendee because it did not own the property where the attendee tripped on exposed material penetrating from the ground. The trial court agreed with the festival and entered summary judgment in favor of the festival.   On appeal, however, it appeared that the trial court incorrectly applied the law because the issue was not whether the festival actually owned the property where the attendee tripped, but whether it assumed any control over the premises in question that would trigger its duty to maintain that premises in a reasonably safe condition. The appellee, in trying to affirm the trial court’s ruling, raised an argument that was never raised at the trial level but supported by the record (the tipsy coachman doctrine). The appellee argued even if it had a duty to maintain the property, the exposed material that the attendee tripped on was so open and obvious as supported by the record that it had no duty to warn the attendee of this open and obvious condition. In other words, the appellee wanted to show that the trial court still reached the right result even if the trial court’s result was based on the wrong reason. (These facts are modeled after a recent appellate opinion in Cook v. Bay Area Renaissance Festival of Largo, Inc., 40 Fla. L. Weekly D1091b (Fla. 2d DCA 2015) where the appellee trying to affirm the trial’s court’s ruling raised a new argument to support the ruling not raised with the trial court.)

 

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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