Wednesday, September 30, 2015

What Responsibility Does My Apartment Have to Keep Me Safe?



By Beau Blackwell


Generally, the apartment complex owners do not have a duty to protect someone from violence of third parties coming onto the property.[1] Additionally, the Fourth District Court of Appeal in Florida held that a landlord has no duty to investigate the crimes posing a threat to its tenants.[2] The mere fact that an individual is on someone’s property does not automatically make them the insurer of their safety; however, there are two exceptions to this principle:

1.      The “special relationship” exception is where the owner assumes a duty to protect the victim centered upon some special relationship arising out of law; and

2.      When the owner has control over the property in question and, as a result, assumes a duty of reasonable care to the victim of the assault, corresponding with the legal status of the visitor.[3] 

Examples of special relationship are the following: landlord-tenant, hotel-guest, store-customer, and school-student.[4] The existence of a special relationship gives rise to a duty to control the conduct of third persons so as to prevent them from harming others.”[5]
             
Whether the duty arises from the special relationship amongst the owner and visitor or based upon the control of the premises, the duty to the invitee is straightforward: (a) to warn of hidden threats of which the owner knows or reasonably should have known of; or (b) to take remedial action.[6]

A premises owner must use ordinary care to protect its invitees from harm due to reasonably foreseeable risks of injury.[7] The cornerstone of this duty is Foreseeability.[8] As a general principle, an owner has no duty to safeguard an invitee on his premises from attackers by an individual over whom the landowner has no control unless the attack is reasonably foreseeable.[9]   The owner’s duty is typically limited to the areas of the grounds to which the guests are invited or may reasonably be expected to venture. [10]

The Florida  Supreme Court stated that foreseeability  is met by “proving that the proprietor knew or should have known of the dangerous propensities of a particular patron. . . [or] by proving that a proprietor knew or should have known of a dangerous condition of his premises that was likely to cause harm to a patron.”[11]

Foreseeability by itself is not enough for an owner to be liable for the attack of a third party.[12]  The injured party may also have to show that the crime was preventable had the owner exercised reasonable precautions.[13]  However, foreseeability is the critical element that must be established for the claim to move forward

How to Handle a Negligent Security Claim Involving a Third Party Criminal Attack

When investigating a negligent security claim involving a third party attack, it is essential that the party was rightfully on the property; if not, there probably was not much of duty.  No duty, no negligence (or very little). 

Next, determine who has control over the premises.  It may not be as cut and dry as imagined, and there may be multiple parties who maintain control over the premises.  Additionally, ownership does not necessarily equal control.  Ownership and control often go together, but control is significantly more important when determining liability.  The party in control
is the party liable.

Check the contract provisions of a lease or hotel.  The owner may have contracted for additional security that they did not provide. In addition, determine what, if any, representations of security the owner made to their visitors.  If the owner made representations of security they did not provide, the owner might be in trouble if the visitor relied upon those protections to their detriment and was injured. 

The determination of whether the attack was foreseeable is central to a negligent security action.  Moreover, each district court has different standards for establishing foreseeability.  It should be determined where, when, and what kind of previous crimes occurred in the location in question. 
           
After determining whether the crime was foreseeable, examine whether the attack would have been preventable with additional security that a reasonable person should have foreseen.  All of this makes the determination of fault extremely complicated.




[1]  T.W. v. Regal Trace, Ltd., 908 So. 2d 499 (Fla. 4th DCA 2005).
[2] Id. at 506
[3] Fredric S. Zinober, Litigating the Negligent Security Case: Who’s in Control Here?, 44 Stetson L. Rev. 289, 290 (2015)
[4] Id. at 291
[5] Id. at 290 (quoting D.M. ex rel. K.M. v. Publix Super Markets, Inc., 895 So. 2d 1114, 1117 (Fla. 4th Dist. Ct. App. 2005))
[6] Id. at 312
[7] Id. at 298
[8] Id.
[9] Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980).
[10] Marriott International, Inc. v. Perez-Melendez, 855 So. 2d 624 (Fla. Dist. Ct. App. 5th Dist. 2003).
[11] Fredric S. Zinober, Litigating the Negligent Securty Case: Who's in Control Here?, 44 Stetson L. Rev. 289, 315 (2015) (quoting Stevens v. Jefferson, 436 So. 2d 33, 34-35 (Fla. 1983))
[12] Id. at 320-325
[13] Id. at 323

Sunday, September 20, 2015

Florida Texting While Driving Law and Civil Liability



Florida Texting While Driving Law and Civil Liability


 By Beau Blackwell

Florida Statute § 316.305 was enacted in 2013 as the Florida Ban on Texting While Driving Law.[i]  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.”[ii]  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.[iii]

Any person who violates this statute commits a noncriminal traffic infraction punishable as a nonmoving violation. [iv] Police may not pull you over for merely texting while driving and not breaking any other laws.[v]  “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.”[vi]

Exceptions

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.[vii]
6.      Stationery vehicles are not subject to these rules.[viii] 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.[ix]  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.[x]

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.[xi]  Vicarious liability is an indirect liability.[xii] 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.[xiii]

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.[xiv]


[i] FL ST § 316.305
[ii] 4A Fla. Jur 2d Automobiles and Other Vehicles § 578.50
[iii] Id.
[iv] § 316.305(4)(a), Fla. Stat.
[v] § 316.305(5), Fla. Stat.
[vi] Lisa Berg, Florida Bans Texting While Driving, 25 Fla. Emp. L. Letter.
[vii] Id. 
[viii] Id. 
[ix] 24 Fla. J.V.R.A. 9:14, 2014 WL 5463441 (Fla.Cir.Ct.).
[x] Id. 
[xi] 38 Fla. Jur 2d Negligence § 101
[xii] Id. 
[xiii] Id. 
[xiv] Lisa Berg, Florida Bans Texting While Driving, 25 Fla. Emp. L. Letter.