Articles Posted in Premise Liability/Negligent Security

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Liability waivers are not generally favored by Florida courts because they relieve one party of the obligation to use due care, and further shift the risk of injury to the party likely least equipped to take necessary precautions to avoid injury. For this reason, they are usually strictly construed against the party seeking to be relieved of that liability.vendorballoon

That said, releases of liability will be honored by the courts if it can be shown there was specific language that makes it clear the injured person fully appreciated the implications of that release.

In most of these cases, liability waivers are signed prior to a certain activity. For example, if you’ve ever ridden a rented jet ski, you probably had to sign a liability waiver. Similar releases are usually required for common Florida tourist activities like parasailing, boating or kayaking. However, most liability waivers don’t generally cover activity that occurs prior to signing that release. But that’s what defendants in Peterson v. Flare Fittings, Inc. et al. tried to do. Continue reading →

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Property owners are responsible for maintaining the site in a way that ensures it is safe from unreasonable hazards for guests. When it comes to businesses and public buildings, that includes the parking lot area. pavementcrack

That means owners have a duty to fill cracks and holes in the walking surface. That means making sure any variations in walking surface height should either be gradual or there should be a warning to pedestrians about the potential hazard. It also means making sure there is adequate lighting, adequate security and regular inspections for areas or aspects that might pose a fall risk, such as oil, cracked wheel stops or other debris.

Failure to do this can result in litigation if someone is injured as a result, and the danger wasn’t obvious to the person who was hurt. Continue reading →

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A woman allegedly slipped, fell and was seriously injured while shopping at the Sawgrass Mills Mall in South Florida. To recover damages for her injuries, she filed a lawsuit against mall services and ownership.

During the discovery phase of litigation, plaintiff sought certain documents from defendants pertaining to similar prior instances at that location. While trial court granted the request, Florida’s Fourth District Court of Appeal reversed in Millard Mall Services, Inc. v. Bolda, agreeing with defendants that the information was protected under the work product privilege.

Specifically, plaintiff sought production of:
–All records, incident reports or other written memorandum regarding other substantially similar acts and/or occurrences on defendant’s premises regarding slip-and-fall accidents over the three years prior;
–All documents regarding maintenance and cleaning the site during the month in which the incident occurred;
–All documents pertaining to the maintenance and cleaning of the site by an outside person/company/organization during that year.
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In any personal injury lawsuit, there are some basic legal and factual requirements that must be met in order for the claim to succeed.

These requirements include establishment of:
–A duty owed by defendant to plaintiff;
–A breach of that duty;
–Proof that breach proximately caused plaintiff’s injuries;
–Compensable damages.

If any one of these elements goes wanting, the entire case will fail.
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Property owners are responsible for curing or warning of dangerous conditions of which they know or should know and that may not be easily discoverable by guests.

That’s the general basis for premises liability claims in Florida. In some cases, though, property owners can be held responsible for third-party acts when those acts were precipitated by some dangerous condition on site. Some examples include negligent security and attractive nuisance. The latter primarily involves children on the property, and the principle holds that children are going to be drawn to certain dangers on site. Because children lack the ability to fully process the consequences of their actions, property owners have a duty to protect children in cases of foreseeable danger.

F.S. 823.08 details some obvious attractive nuisances, which can include:
-Deep-freeze lockers;
-Clothes washers;
-Clothes dyers;
-Similar airtight units from which the doors have not been removed.
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Property owners are required to keep the site reasonably free of foreseeable harm to guests and patrons under Florida law. Generally speaking, property owners aren’t required to insure against harm caused by third parties except in certain circumstances.

Under Florida premises liability law, a property owner can be liable for third-party attacks when:
–There is a special relationship for which owner assumes a duty to protect.
–There is an element of foreseeability to the alleged crime (i.e., there have been similar crimes committed on site or nearby in the past).
–Precautions taken to protect or warn the guest of danger were inadequate.

There have been numerous examples of Floridians who were injured as a result of a third-party attack who successfully sue the site owner or manager for damages based on this aspect of premises liability law. However, these cases are often complex in nature and require the help of an experienced litigator. While a criminal prosecution may result in a judgment for restitution, in addition to other criminal sanctions, that’s not standard, nor is it the primary purpose of the criminal justice system. That’s why third-party lawsuits are initiated.
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When important evidence in a civil injury case has been destroyed, altered or simply lost, this is called “spoliation of evidence.” Because this kind of action can throw off an entire injury case, it might seem defendants in such actions would have incentive to conveniently “lose” key documents, video or other evidence.

In order to counter this, both federal and Florida courts have consistently held that sanctions are appropriate when spoliation of evidence occurs.

The kind of sanctions imposed by the court will vary depending on the egregiousness of the act, whether it was intentional and how important the lost evidence would have been to the other party. Some examples have included entering a default judgment on the issue of liability, imposition of evidentiary presumption, exclusion of expert witness testimony or dismissal of a claim or counterclaim.
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A strip mall nightclub in Miami coined “The Spot” was the site of a bloody scene recently, when 15 people – ranging in age from 11 to 25 – suffered gun shot wounds in the early hours of a Sunday morning. At least one of those victims was in critical condition, while the others are expected to recover.

Although authorities are continuing to investigate, initial reports are that two groups were shooting at one another. The recently-opened business bills itself as a “lounge, restaurant and bar.” It did have a liquor license, and apparently catered to teen patrons, though the media reports it’s unclear whether alcohol was being served to youth.

In a scenario like this, injured minors and parents may have grounds for a civil suit against the business and/or property owners. While courts generally do not impose liability on third parties for violent criminal acts, there are exceptions made when the risk was foreseeable and the business owner owed a duty to protect invitees.
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One of the first things our Fort Myers premises liability lawyers will do in reviewing a trip-and-fall case is to determine the legal status of the plaintiff at the time of the incident.
That is, was the plaintiff a business invitee? A licensee? Or a trespasser? For each classification, the level of duty owed by a defendant is going to vary, which means plaintiff legal status can guide the entire course of a case.

The highest degree of duty owed is to that of a business invitee, who is on the property for the financial benefit of the property owner. A prime example would be a customer at the grocery store. A licensee, meanwhile, is someone who is on the property for some purpose other than commercial. An example would be a social guest. An finally, a trespasser would be someone who did not have permission to be on the property. Trespassers can sue property owners for injuries, but usually only if the owner knew trespassers routinely came on site and failed to address or warn of a hazard that wasn’t obvious. The one exception is children, and the most common example in Florida would be a child who enters an unprotected swimming pool area.
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Just like commercial property owners, private property owners owe a duty to those on their property to address potentially dangerous conditions or, alternatively, to warn of them. The degree of that duty depends largely upon the status of the person on the property – whether an invitee or trespasser.

Liability of the owner may be reduced if the danger was open and obvious to the injured party or if there was any degree of comparative fault on the part of the injured person.

Our Fort Myers premises liability attorneys know while homeowners may not be fully aware of their legal obligations, ignorance is no excuse, especially if someone is seriously hurt as a result of encountering a dangerous condition without warning.
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