The general area of premises liability is distinctive from that of general negligence cases. Unlike the traditional “negligence” case, which normally arises from an active breach of duty by an individual, which causes damage to another person, the doctrine of premises liability often assumes a more passive role on the part of the “tortfeasor,” or responsible party.
Often, the individual or entity that may bear responsibility for an individual’s injury, in the premises liability context, is not even physically at the location of the injury. Rather, the doctrine of premises liability revolves, generally, around the duty of a landowner, or person in possession or control of property, to maintain its premises in a reasonably safe condition, or, at a minimum, warn those who may come upon the property about dangerous conditions of which they might otherwise not be aware.
Although a landowner is not an insurer of his or her premises, there are certain duties and obligations which he or she must fulfill if he or she is to satisfy his or her duty to the surrounding community, or those who might otherwise come into the “zone of risk.” Although there are many aspects to premises liability cases, perhaps the two most commonly litigated subjects of this unique area of the law are negligent security cases and slip and fall cases. In general, however, when considering premises liability cases, critical issues that must be addressed are considerations such as: a) who has possession or control of the premises, and b) what is the status of the injured person.
Land Owner Responsibility in Premises Liability
In general, mere ownership of property does not, in and of itself, confer a duty to take reasonable case to maintain the property in a safe condition. Rather, that duty falls upon the person or entity that has the right to maintain control over the property. This control may, however, be both “actual” and “constructive.”
For example, if property is entirely leased to another, with the actual landowner having no right to exercise dominion or control over the property, itself, or the mode of operation of the business, the landowner may have completely relinquished control over, and, thus, responsibility for the maintenance of the property. In that circumstance, the lessee may very well be the entity who bears responsibility for the safety of the property.
However, under many circumstances, both the landowner and the tenant may both have sufficient control over the property to be responsible, concurrently, for the safety of the property. In fact, in certain circumstances, particularly those in which the entity in control over the property is aware that its patrons use off-site premises or facilities, that entity may, in fact, have the duty to make sure that the off-site property is kept in a reasonably safe condition, or provide an adequate warning to unsuspecting patrons of the danger lurking in the off-site premises. This area of the law is particularly fertile for an expanded zone of those responsible for the safety of its invitees.
Visitor vs. Trespasser in Premises Liability Case
Of equal importance is the status of the “visitor.” In order to determine the appropriate duty that the possessor of property has to the visitor, it must be determined if the visitor is a business invitee, a licensee, or a trespasser. These are common law concepts, with the “invitee” having the highest duty of case, followed by a “licensee” and then the “trespasser.” In 1999, the Florida legislature codified Florida law and adopted Florida’s version of a premises liability statute in section 768.075, Florida Statutes. This statute, before 1999, had formerly applied only to alcoholically impaired trespassers. Now distinguishing between a “discovered” and an “undiscovered” trespasser, the statute provides that the landowner has no duty, whatsoever, to warn an “undiscovered” trespasser of dangers on the property (“undiscovered” meaning that his presence was not detected within 24 hours preceding the incident). Thus, the lynchpin of every premises liability case begins with an examination of the duty of the landowner, or person in control of the property, which often will center on the status of the visitor.
If you have a situation concerning premises liability cases please contact the expert Florida personal injury attorneys, Corless Zinober at 866-969-2889.
