Friday, October 23, 2015

You Have a Duty to Warn of Potential Dangers

By Beau Blackwell

           When an individual is an invited guest on someone’s property, the property owner has a duty to warn the guest if the property owner has knowledge of a dangerous condition and fails to give the guest a timely warning.[1]  A property owner is not liable when they give sufficient warning, where the guest is already adequately mindful of the hazard, or where there is no unsafe condition.[2]

If an owner knows that there is an “obvious” danger that is consistently causing accidents, the courts might find that since the owner should have foreseen further accidents, he should be liable for those subsequent accidents.[3]

In T.W. Regal Trace, the proprietors of an apartment complex had a duty to warn lessees of an alleged sexual assault committed by a cotenant of a tenant child.[4] The Court held that if the proprietors knew of the sexual assault, this knowledge establishes that a reasonable apartment complex should know that its lessees would be exposed to a hazard if not warned.[5] However, the court held that even though the landlord does not have a duty to conduct an investigation into crime issues in the area, it did have duty to warn tenants of unlawful conduct of which it was aware.[6]

In Lemen v. Florida Power & Light Co., an electric company warned an independent contractor of the potential dangers of the potential dangers associated with the area where the contractor would be working.  The court ruled that the company was not negligent for the contractor’s subsequent injury.[7]    

Products Liability

The duty to warn is also applicable in products liability cases.  A company has a duty to warn the customer of foreseeable risks associated with the use of products which are known or reasonably should be known to the company.[8] The company breaches their duty by failing to give warning or by providing a warning that is insufficient to adequately warn of the danger.[9]

Among the elements to be measured by the jury in determining whether a manufacturer has a duty to warn end-users directly are: (1) the gravity of the risks posed by the product; (2) the likelihood that the intermediary will convey the information to the ultimate user; and (3) the feasibility and effectiveness of giving a warning directly to the user.[10]

The duty to warn may exist even when there is no actual defect in the product itself.[11]  A product could be considered defective even though it was perfectly made and if it was provided to a consumer without sufficient warning regarding the dangers associated with use of the product and the method in which the product should be safely used.[12] Moreover, products which are not defective when they ship could still be the subject of a claim for failure to warn if the manufacturer can foresee defects emerging in the product after ordinary use by the consumer.[13]

For example, a manufacturer of a wood chipper did not have a duty to warn consumers that the wood chipper should not be used without safety cover, because the danger of using the product without cover was obvious. [14]

Beau Blackwell lives in St. Petersburg, Florida and is an honor roll law student at Stetson Law.  Mr. Blackwell is also a law clerk at a civil litigation firm. 

[1] 41 Fla. Jur 2d Premises Liability § 37
[2] Id.
[3] Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1312 (Fla. 1986).
[4] T.W. v. Regal Trace, Ltd., 908 So. 2d 499 (Fla. 4th DCA 2005).
[5] Id.
[6] Id. at 506
[7] Lemen v. Florida Power & Light Co., 452 So. 2d 1107 (Fla. 5th DCA 1984).
[8] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 13:13 (2014-2015 ed.)
[9] Id. 
[10] Restatement (Third) of Torts: Products Liability § 2. Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012).
[11] See Moorman v. American Safety Equipment, 594 So. 2d 795, Prod. Liab. Rep. (CCH) P 13111 (Fla. 4th DCA 1992)
[12] See Cohen v. General Motors Corp., Cadillac Div., 427 So. 2d 389 (Fla. 4th DCA 1983)
[13] Builders Shoring and Scaffolding Equipment Co., Inc. v. Schmidt, 411 So. 2d 1004 (Fla. 5th DCA 1982).
[14] Hernandez v. Altec Environmental Products, LLC, 903 F. Supp. 2d 1350 (S.D. Fla. 2012) (applying Florida law).

Sunday, October 18, 2015

Prior Crimes Establish Foreseeability in Negligent Security Claims

By Beau Blackwell

Foreseeability of previous criminal activity is of chief concern when investigating negligent security claims.  So, what establishes the foreseeability of criminal attacks in a premises liability action? Each Florida District Court of Appeal handles the question of foreseeability in negligent security cases differently, and an interested party must know the differences. This article will examine what makes a tort foreseeable, and how foreseeable crimes shape whether an owner was negligent.  Additionally, this article will examine whether a plaintiff can bring a claim even if the criminal attack was not foreseeable. 
The strongest method of demonstrating foreseeability is by introducing “evidence as to similar criminal conduct in the relevant location over a relevant period of time.”[1] The next question is usually what kind of similar crimes establish foreseeability.[2]  Navigating what prior crimes establish foreseeability is frustrating because Florida district courts disagree on what types of prior crimes establish foreseeability.[3] 
When determining foreseeability, Florida District Courts of Appeal vary on how or if they use the follow factors:  (1)similarity of the prior crimes, (2) geographical proximity of the prior crimes, and (2)temporal proximity of the prior crimes.[4]
The Third District Court of Appeal employs the most rigid test for determining previous crimes that establish foreseeability.[5] This Third District’s test is referred to as the “narrow test” and plaintiff must establish all three of the above-mentioned elements.[6]
Below, is an explanation of how each Florida District Court of Appeal describes the types of prior crimes that establish foreseeability.
The Same Type of Criminal Activity
The Third District Court of Appeal currently requires the same type of previous crime to establish foreseeability.[7]  So, for example, a previous crime of drug possession is not the same type of crime as assault, and thus,  would not establish foreseeability for the assault.[8]
Different Types of Prior Criminal Activity
The First, Fourth, and Fifth district courts of appeal have used an expansive test that permits past dissimilar crimes to demonstrate foreseeability.[9]
In Holiday Inns v. Shelburne, the Forth District Court allowed evidence of prior thefts, sex crimes, and criminal mischief to establish that a shooting was foreseeable.[10]
The Fourth District Court of Appeal further explained their reasoning behind allowing dissimilar crimes to establish foreseeability by stating that “a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability.  Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible in determining that issue.”[11]
The Fourth District Court of Appeal in Wal-Mart Stores, Inc. v. Caruso ruled that a property owner is only required to protect against criminal acts by third parties if the act is reasonably expected and the owner had actual or constructive knowledge of the threat.[12]
The Walmart holding is great for plaintiffs, but worrisome for property owners. This is because there is not a clearly defined principle to guide their conduct, and there is a wider group of conduct that establishes foreseeability.
It is worth noting that in recent decisions the Fourth District has voiced its dissatisfaction with permitting dissimilar, off-property crimes to establish foreseeability, but the court has yet to overturn its allowance of these types of crimes.[13]
Location of Previous Criminal Activities
The First and Third districts require a prior crime to occur on the premises for it to establish foreseeability.[14] For Example, in Mendez v. The Palms West, Florida’s First District Court of Appeals refused evidence of prior crimes in the area and required evidence of past crimes at the property in question.[15]  In Admiral's Port Condo. Ass'n, Inc. v. Feldman, the court stated that “[e]vidence of similar crimes committed off the premises and against persons other than the landowner’s invitees is not probative of foreseeability.”[16]
The Fourth, Fifth, and Second districts allow showings of prior off-premises crimes to establish foreseeability.[17]
The Fourth District has voiced its displeasure with permitting off-premises crimes, but still permits them.[18]  The Fifth District permits showing of prior crimes that occurred “nearby.” [19]The Second District also allows a showing of prior crimes that occur “near” the premises when establishing foreseeability.[20]
Time Restrictions on Allowance of Previous Criminal Activity
The Third and Fourth Districts do not allow a plaintiff to use crimes that occurred more than two years in the past to establish foreseeability.[21] Conversely, The Fifth District Court of Appeal does not employ a set amount of time.[22]  As of right now, it is unclear where the First or Second Districts stand on this issue.[23]

[1] Fredric S. Zinober, Litigating the Negligent Securty Case: Who's in Control Here?, 44 Stetson L. Rev. 289, 315 (2015)
[2] Id. at 316
[3] Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8 (2014)
[4] Id.
[5] Id.
[6] Id.
[7] Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981).
[8] Ameijeiras v. Metro. Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988).
[9] Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8 (2014).
[10] Holiday Inns., Inc. v. Shelburne 576 So. 2d 322, 331 (Fla. 4th Dist. Ct. App. 1991)
[11] Id.
[12] Wal-Mart Stores, Inc. v. Caruso, 884 So. 2d 102, 103-05 (Fla. 4th Dist. Ct. App. 2004).
[13] Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010)
[14] Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 9-10 (2014)
[15] Mendez v. The Palms West, 736 So. 2d at 61 (Fla. 1st D.C.A. 1999)
[16] Admiral's Port Condo. Ass'n, Inc. v. Feldman, 426 So. 2d 1054, 1055 (Fla. 3d DCA 1983)
[17] Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 9-10 (2014).
[18] Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th DCA 1989).
[19] Foster v. Po Folks, Inc., 674 So. 2d 843, 844-47 (Fla. 5th DCA 1996).
[20] Bellevue v. Frenchy's South Beach Cafe, Inc., 136 So. 3d 640, 642 (Fla. 2d DCA 2013).
[21] Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010); Ameijeiras v. Metro Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988).
[22] Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).
[23] Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 10 (2014).

Saturday, October 10, 2015

Can I Use My Cell Phone While Driving in Florida?

Can I Use My Cell Phone While Driving in Florida?

By Beau Blackwell

            Florida Statute § 316.305 was enacted in 2013 as the Florida Ban on Texting While Driving Law.[1]  This law states that an individual may not drive an automobile “while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data in such a device for the purpose of nonvoice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging.”[2]  A “wireless communication device” is any handheld device capable of being used in a handheld manner that is used to receive or send text messages, access or store data, or connect to the internet.[3]

Any person who violates this statute commits a noncriminal traffic infraction punishable as a nonmoving violation. [4] Police may not pull you over for merely texting while driving and not breaking any other laws.[5]  “Violation of the law is considered a secondary offense, meaning a police officer can't pull someone over for just texting. The driver must be committing another violation such as speeding or running a stop sign. If there's an accident, motorists' cell phone records can be used against them only if the accident results in death or personal injury.”[6]


Like nearly all laws, there are several exceptions.

1.      A driver may use their device for navigational purposes. 
2.      The device may be used for reporting emergencies. 
3.      The driver may use voice commands on their device. 
4.      The device may be used for listening to music or other programs that does not require typing.
5.      The driver may also use their device to receive emergency alerts.[7]
6.      Stationery vehicles are not subject to these rules.[8] For example, a driver is allowed to text while stopped at a stop light.

Multi-Million Dollar Verdict for Texting While Driving Victim

On December 20, 2010, a 26 year-old, Florida woman was a passenger in a car driven by her boyfriend.[9]  The woman’s boyfriend ran a stop sign because he was texting, and drove into the path of a tractor trailor. The woman tragically sustained a traumatic brain injury that put her in a coma for three weeks. The woman is now permanently disabled. 

The woman filed suit in Flager County Circuit Court, accusing the defendant boyfriend of negligence for texting while driving that resulted in the crash. The plaintiff pursued compensatory and non-compensatory damages for her disability. The matter was resolved by a bench verdict for $4,300,000 in damages.[10]

Employers May be Liable for Dangerous Texting of Employees

Under the theory of vicarious liability, one person, although entirely innocent of any wrongdoing, is nonetheless held responsible for harm caused by the wrongful act of another.[11]  Vicarious liability is an indirect liability.[12] For instance, a business is burdened with the liability resulting from the negligence of its employees; namely, the employee's liability is imputed to the employer.[13]

An employer may be liable if an employee has an accident while texting.  For example, the employer could be liable if the employer was driving a business vehicle, using a business cell phone, or carrying out employer business while driving.[14]

[1] FL ST § 316.305
[2] 4A Fla. Jur 2d Automobiles and Other Vehicles § 578.50
[3] Id.
[4] § 316.305(4)(a), Fla. Stat.
[5] § 316.305(5), Fla. Stat.
[6] Lisa Berg, Florida Bans Texting While Driving, 25 Fla. Emp. L. Letter.
[7] Id. 
[8] Id. 
[9] 24 Fla. J.V.R.A. 9:14, 2014 WL 5463441 (Fla.Cir.Ct.).
[10] Id. 
[11] 38 Fla. Jur 2d Negligence § 101
[12] Id. 
[13] Id. 
[14] Lisa Berg, Florida Bans Texting While Driving, 25 Fla. Emp. L. Letter.