By Beau Blackwell
There are several determinations one must make when deciding liability after an individual is injured on someone else's property. In Florida premises liability, the label or status of the injured party is essential.[i] One of the initial steps a lawyer must make in a premises liability case is determining the status of the injured visitor.[ii] However, the jury ultimately determines the status of the visitor on the property.[iii] This article will examine the different levels of liability a property owner will owe to different types of visitors.
The Florida Supreme Court has stated that there are several factors which are considered in their totality when establishing the duty owed to a visitor and what creates reasonable care in the circumstances:
- whether the visitor is reasonably expected by the owner, his family, agents or servant;
- the visitor's reason for being on the premises; and
- the location of the visitor at the time of the injury.[iv]
Moreover, the status of the visitor does not need to be expressed through specific words or actions, but the status of the injured visitor may be implied by the circumstances.[v] The Florida courts have further defined each visitor status in the following ways:
(1) a trespasser is one who arrives on the property of another without license, invitation, or other right, and intrudes for some definite reason of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity;
(2) a licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit;
(3) and an invitee is one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.”[vi]
A visitor may also hold the status as a "tenant" or "lessee." These two terms are interchangeable. [vii] Tenants are sometimes lumped together with "invitees" in Florida legal opinions[viii]; however, they are not defined as an "invitee" by the Florida Residential Tenancy Act (Act).[ix] A 'tenant' is often defined as “one who occupies another's premises in subordination to such other's title and with his or her consent, express or implied, and the person in subordination to whom he or she occupies is the 'landlord.'"[x] Individuals leasing an apartment are one of the most common examples of a tenant.
“The courts have diluted the distinctions between the categories of invitees and licensees by recognizing two sub-categories of licensees: the invited licensee, and the uninvited licensee. A person may be an invited licensee either by express invitation or by invitation which can reasonably be implied from the circumstances. Since an invited licensee is owed the same duty of reasonable care as an invitee, the lines of distinction between these two categories have been erased. Therefore, this category of licensee has been subsumed within the category of invitee.
The uninvited licensee is a person who chooses to come upon the premises solely for his own convenience without invitation either expressed or reasonably implied under the circumstances. In other words, a licensee as currently defined occupies a legal status between invitees and trespassers whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner. The courts realize that this definition fits the definition of a trespasser but insist that narrow distinctions can be made between them.
The owner will owe the uninvited licensee a duty to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation. These duties are separate and distinct, and an allegation of the breach of one is sufficient to state a cause of action on behalf of an injured uninvited licensee.9
The courts have noted that this duty is consistent with the Restatement Second, Torts § 342.This section of the Restatement states that a possessor of land is subject to liability for physical injury caused to licensees by a condition on the land if, but only if, the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and he fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved, and the licensees do not know or have reason to know of the condition and the risk involved.”[xi]
A "tenant" is someone who is given possession of a premise that is exclusive even of the landlord, except for: (1) reasons outlined in the lease, (2) to request rent, or (3) to make repairs.[xii]
A landlord has a duty to exercise reasonable care to maintain the rented premises in a reasonably safe condition, but a landlord is not the insurer of the tenants.[xiii] A landlord is liable to third persons for injuries on the leased premises during the term of the lease under the following situations:
- where the injury on the premises was caused by a violation of law; or
- where the defect in the premise was in the nature of a nuisance existing or emerging because of negligent construction or otherwise; or
- where the lessor has entire or partial control of the premises; or
- where the lessor is required by law or undertakes to keep or assist in keeping the premises in repair; or
- where the lessor’s negligence or participation is the proximate cause of the injury.[xiv]
A landlord has an initial duty to inspect the premises making sure that there are no present dangers.[xv] Although, the landlord does not have a duty to continuously inspect the premises for dangers. [xvi] The landlord does have an ongoing duty to use reasonable care to keep the rented grounds in a reasonably safe condition and to make repairs if required for the security of the occupants.[xvii]
The landlord also has a duty to safeguard tenants from reasonably foreseeable criminal action. The question of whether the landholder breached their duty is generally a question for the jury, and it is for the jury to conclude what provisions are reasonably necessary.[xviii]
Florida courts usually define hotel and motel guests as “invitees."[xix] An invitee is any “[p]erson who comes upon the property at the invitation of the landowner.”[xx]
Originally, an invitee was separated into three different categories. This was done through the invitation test.[xxi] The invitation test states:
(1) An invitee is either a public invitee or a business visitor;
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”[xxii]
In Wood v. Camp, the Florida Supreme Court expanded the definition of invitee to also include social guests.[xxiii]After this decision, there is no longer any distinction between business, public, and social invitees.[xxiv]
In some case law, tenants and invitees are lumped together, but due to the unique relationship of landlord-tenant, they are usually defined separately.[xxv]
Invitee Standard of Care
There are two fundamental duties owed by a property-owner to an invitee:
1) to use reasonable care in keeping and maintaining the premises in a reasonably safe condition; and
2) to give the invitee warning of concealed perils which are known 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.[xxvi]
These duties are often breached when the owner “fails to take reasonable care (a) to eliminate the known danger, (b) to protect invitees from the known danger by excluding them from the area of danger,(c) to provide warnings as to the danger, or (d) to take some combination of these protective actions.”[xxvii]
The duty to invitees also includes reasonable inspections at periodic times. Whether the inspections were reasonable are determined by the jury based on a "reasonable person" standard.[xxviii] The frequency and nature of the inspections may rely on, but is not limited to, the following factors:
· the type of premises and the business or activity being conducted;
· the type of potential dangers that are reasonably foreseeable;
· the ways potential dangers could be created; and
· the degree of the danger involved.[xxix]
If a reasonable inspection would have exposed the threat, the owner may be on constructive notice of the danger and may be liable for injuries caused by the danger.[xxx] Thus, constructive notice may be established by circumstantial evidence.[xxxi]
An owner may be liable if they break the law by serving alcohol to a minor; and then that minor subsequently injures another invitee on the premises.[xxxii] In Prevatt v. McClennan, a minor was sold alcohol and the minor subsequently shot another person while inside the bar.[xxxiii] The injured person sued the owner of the bar.[xxxiv] The court found that violating the Florida statute against selling alcohol to minors constituted negligence per se and the statute was created to prevent injury to third parties who might be harmed by a drunk juvenile.[xxxv]
The status of the individual on the property is a huge part of determining liability in a premises liability action. However, it is only one part, and it is always wise to seek a qualified attorney for guidance in these issues.
[i] Id. at 12.
[ii] Wood v. Camp, 284 So. 2d 691, 695 (Fla. 1973).
[iii] Pedreira v. Silva, 468 So. 2d 1073, 1074 (Fla. 3d Dist. Ct. App. 1985).
[iv] Wood v. Camp, 284 So. 2d 691, 695 (Fla. 1973).
[v] Fredric S. Zinober, Litigating the Negligent Security Case: Who's in Control Here?, 44 Stetson L. Rev. 289, 308 (2015)
[vi] Post v. Lunney, 261 So. 2d 146, 147-148 (Fla. 1972).
[vii] 52 C.J.S. Landlord & Tenant § 1 (June 2015)
[viii] See Patterson v. Deeb, 472 So. 2d 1210 (Fla. Dist. Ct. App. 1985) (Although the court references the similarities between tenants and invitees, it does not say they are same.)
[ix] West's F.S.A. § 83.42 (West, Westlaw effect through 7/1/15 legislation)
[x] 52 C.J.S. Landlord & Tenant § 1
[xi] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 10:5 (2014-2015 ed.)
[xii] 34 Fla. Jur 2d Landlord and Tenant § 1 (May 2015).
[xiii] Id. at § 100
[xiv] Vanner v. Goldshein, 216 So. 2d 759 (Fla. Dist. Ct. App. 3d Dist. 1968).
[xv] 34 Fla. Jur 2d Landlord and Tenant § 102
[xviii] Lambert v. Doe, 453 So. 2d 844 (Fla. 1st DCA 1984).
[xix] 41 Fla. Jur 2d Premises Liability § 15 (May 2015)
[xx] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 10:6 (2014-2015 ed.)
[xxii] Post v. Lunney, 261 So. 2d 146, 148 (Fla. 1972).
[xxiii] Wood v. Camp, 284 So. 2d 691 (Fla. 1973).
[xxiv] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 10:6 (2014-2015 ed.)
[xxv] See Patterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. Dist. Ct. App. 1985)
[xxvi] Friedrich v. Fetterman, 137 So. 3d 362, 365 (Fla. 2013).
[xxvii] Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213 (Fla. 5th DCA 1989)
[xxviii] Id. at 214-215
[xxix] 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 10:6 (2014-2015 ed.)
[xxx] Winn-Dixie Stores, Inc. v. Marcotte, 553 So. 2d 213,215 (Fla. 5th DCA 1989)
[xxxi] See Id.
[xxxii] Prevatt v. McClennan, 201 So. 2d 780 (Fla. 2d DCA 1967)
[xxxv] Id. at 781