Premises Liability

Property owners and managers are responsible for making sure the site is safe and well-maintained so guests and tenants are not physically endangered. Unfortunately, too many cut corners or simply ignore their legal duty, and serious injury, illness and even death is the result.

Associates and Bruce L. Scheiner, Attorneys for the Injured, recognize that when death occurs as a result of a business or property owner’s wrongful act or omission, a premises liability lawsuit may be warranted. It’s a form of negligence for which survivors can seek compensation.

We know a civil lawsuit is never going to bring back a loved one. But property owners who flout the rules, violate building codes and disregard public safety need to be held accountable. Many times, businesses try to defend a case by asserting comparative fault on behalf of the decedent.

Some common examples of premises liability wrongful death claims include:

• Slip-and-fall or trip-and-fall accidents
• Dog bites and animal attacks
• Fires and explosions
• Assaults or attacks
• Negligent Security
• Malfunctioning elevators or defective stairwells
• Swimming pool accidents/drowning
• Exposure to toxic substances
• Day care or school injuries

Such claims may be brought against a business, a landlord, a land owner, a homeowner or even the government, depending on the circumstances.

These cases are more complex than some other types of wrongful death litigation. Contrary to common belief, success in premises liability litigation is not solely predicated on the fact that an injury or death occurred on someone else’s property. It’s not even enough to prove a dangerous condition on site resulted in the injury or death.

In many cases, plaintiffs have to prove defendant had actual or constructive knowledge of the hazard and failed either to remedy it in a reasonable amount of time or warn others of the danger. For years, big business lobbyists have pressured lawmakers to tighten plaintiff access to courts, and one area in which they have been successful is with regard to premises liability cases – specifically slip-and-fall claims, for which the actual/constructive knowledge standard is now required.

Whether defendant is a private homeowner, a business or the government, most claims will involve insurance companies. Because wrongful death claimants are entitled to significant compensation, these claims are vigorously defended by corporate lawyers. That does not mean claims aren’t worth pursuing. They absolutely are. However, you can’t afford to go head-to-head with these firms without your own experienced legal representation.

Status of Decedent in Premises Liability Wrongful Death

In any premises liability claim, one of the first elements that must be established is the decedent’s status on site at the time of the incident. That’s because the level of duty owed to decedent can vary depending on the class of visitor.

In general, Florida recognizes three classes of visitors. These are:

• Invitees. These are persons specifically invited onto a property for commercial or business purposes or as a member of the general public. Property owner owes duty to warn of risks when the risk is unreasonable and owner knows or should know about it.
• Licensees. These are persons who enter or remain on premises for a purpose other than public invitation or commercial interaction (i.e., social guests). Property owners here owe duty to warn if he or she is aware of the hazardous condition and licensee didn’t know or have reason to know about it (i.e., it’s concealed or hidden).
• Trespassers. These are persons on site without owner’s permission. Generally, property owners owe no duty to warn trespassers, particularly when they aren’t aware of their presence. Usually, they are only required not to intentionally or wantonly put trespassers at risk.

There are some nuances and exceptions to these rules. For example, a salesman who legally enters your property but without express permission is owed less duty of care by you than an invited social guest. As another example, a child who trespasses is owed a greater duty of care than an adult trespasser. If an on-site hazard is of a particular draw to a child (such as an unguarded pool or empty old appliance), it is considered an “attractive nuisance.” In attractive nuisance cases, property owners have a duty to take measure to keep children out.

Overcoming Premises Liability Defenses

Aside from negligent security, most premises liability claims are rooted in an unintentional act of negligence. That is, no one intended for decedent to be hurt or killed, but it happened because of an act of negligence or oversight.

Defendants in these situations will pull out all stops to avoid responsibility. We work tirelessly to overcome these assertions.

One of the most common defenses is “contributory negligence.” This means decedent acted in some way that contributed to his or her own death. For example, a man who is intoxicated trips and falls on a broken stair step leading out of a nightclub, suffers a head injury and dies. Defendant nightclub insurer might assert man was contributorily negligent and, but for his intoxication, would not have fallen. We would fight to counter that assertion, bringing evidence of the staff’s awareness of the defect, other trip-and-fall incidents at the site, medical experts who could attest to decedent’s degree of intoxication and the role it played (or didn’t play) in the fall and other building code violations that might be indicative of a pattern of negligence.

It’s worth noting even in cases where a jury finds decedent was contributorily negligent, Florida still allows recovery of damages. The courts reduce the amount of award based on the percentage of contributory negligence, but do not eliminate the potential for award – even if decedent was 99 percent liable for his own injuries and/or death.

Another common defense in premises liability law is “assumption of risk.” That is, decedent was aware of risk harm and disregarded such risks. An example might be if decedent ignored a warning sign and proceeded to a certain area anyway. In that case, we might counter the sign was unclear or not visible or offered an inadequate warning.

Contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.

Call 800-646-1210 for a Free Consultation