PREMISES LIABILITY FAQS: SLIP AND FALLS AND TRIP AND FALLS
A. Duty of Business or Property Owner: The first inquiry this Court must make is whether as a matter of law the Defendant owed the Plaintiff a duty.
(1) to keep its property reasonably safe and protect an invitee from dangers of which the owner or occupier is aware, or should have been aware through reasonable inspection; and
(2) to give the invitee warning of concealed perils which are or should be known to the owner or occupier, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.
(“to use reasonable care in maintaining the premises in a reasonably safe condition and to have given the Plaintiff timely notice and warning of latent and concealed perils known to the defendant, or which by the exercise of due care should have been known to him, and which were not known by the plaintiff, or which by the exercise of due care, could not have been known to him.”)
The Landowner Is Not Required To Keep The Premises Absolutely Safe, Or In Such Condition That No Accident Could Possibly Happen To A Customer.
Moreover, a court can decide the issue of whether the duty was breached if only one reasonable conclusion may be drawn from the evidence.
Rare For Courts To Award Summary Judgment On These Negligence Claims.
(3) The duty of the landowner is to conduct inspections, and that if a reasonable inspection would have revealed the dangerous condition in question, and the dangerous condition existed for a length of time in excess of the time between reasonably spaced inspections. Winn Dixie Stores, Inc. v. Marcotte, 553 So.2d 213, 214 (Fla. 5th DCA 1989).
B. Constructive Notice: This second duty is usually breached when the possessor fails to take reasonable care.
(a) to eliminate the known danger,
(b) to protect invitees from known danger by excluding them from the area of danger (by fences, gates, walls, door, barricades, etc.), or by providing protective devices (safety glasses, ear muffs, breathing devices, hard hats, guardrails, covers on machinery, etc.),
(c) to provide warnings as to the danger, or
(d) to take some combination of these protective actions.
C. The discharge of the duty to warn does not necessarily discharge the duty to maintain the premises in a reasonably safe condition. See Hancock v. Department of Corrections, 585 So.2d 1068, 1071 (Fla. 1st DCA 1991) If the landowner should anticipate that harm could occur despite the invitee’s knowledge of the danger, the landowner may still be liable for injuries that result.
D. RES IPSA is not automatic: The mere occurrence of an accident does not give rise to an inference of negligence. Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981).
(1) Plaintiffs’ Burden of Proof:
a. that the landowner breached either the duty to use reasonable care in maintaining the premises in a reasonably safe condition,
or
b. 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 him through the exercise of due care. Miller, 591 So.2d at 973
E. Section 768.0710, Florida Statutes: transitory foreign objects or substances on business premises and Burden of Proof:
(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 by 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.
(3) Evidence of notice or lack of notice offered by any party may be considered together with all the evidence.
(4) Foreseeability: “For the consequence of a negligent act to be foreseeable, it must be such that a person by prudent human foresight can anticipate will likely result from the act, because it happens so frequently from the commission of such an act that in the field of human experience it may be expected to happen again.” Generally, for a Plaintiff to recover in slip and fall and trip and fall cases, the Plaintiff must prove the owner of the premises had actual or constructive notice of the dangerous condition.
F. NEGLIGENT MODE OF OPERATION: ALIVE AND KICKING. The Plaintiff alleges that the Defendant’s “mode of operation” of the business or premises caused the plaintiff’s injuries. Question of foreseeability.
EX: The restaurant owner knew or should have known that waiters and bus persons carrying food from the kitchen tracks grease on the floor such that reasonable care was breached.
EX: Allowing residents of ALF to carry food across the hallways from the buffet areas. Foreseeable that residents would drop food on the floor and others would slip and fall.
G: PROPERTY DAMAGE CLAIMS AGAINST LANDLORD: LOSS OF BUSINESS AND GOODS OR INVENTORY: If a landlord fails to undertake repairs in a reasonable manner, causing damage to your goods or loss of business, you may have a legal right to seek damages for the economic losses. The law in Florida can hold a landlord liable for the negligence of independent contractors hired by the landlord to undertake repairs of the leased premises, such as roofers or plumbers.
For example, if a landlord agrees to make repairs to the roof or plumbing of the premises, and the repairs are not fully completed because the landlord did not pay the contractor or told them to only fix part of the problem, resulting in flooding to the premises, the tenant can bring a claim for negligence against the landlord to recover all the damage to the inventory and the loss of revenues for the interruption of the business.
If you have suffered physical injury or harm as a result of a fall on the premises of any business or public facility, please call attorney Mitchell L. Feldman and the Feldman Legal Group. for a free initial assessment. Whether the cause is from slipping on a foreign substance, tripping over some hidden object, or the result of an accident of any sort on a construction site, you may have the legal right to receive compensation for your injuries. We know the law and know how to strategically present the claims to the businesses involved and the related insurance companies to increase your chances of a fair and just result.
Feldman Legal Group. handle claims involving malicious prosecution, dog bites, and other toxic torts as well. Whether the accident occurred in Tampa or Atlanta, we have the ability to represent your interests all the way through jury trial if necessary. Call us or email us at fightfortheinjured@hotmail.com.
