Michael J. Roper, Esquire
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, Florida 32803
(407) 897-5150
MRoper@bellroperlaw.com
www.bellroperlaw.com
- Tort claim based upon principles of negligence
- Sovereign immunity statute (§ 768.28, F.S.) implicated
- Discretionary vs. operational distinction
- $200,000/$300,000 cap on damages
- Traditionally think of slip & falls; but also includes road
defect; negligent security; drowning; recreational activities.
- Negligence – Failure to use reasonable care
- Doing something that a reasonably careful person would not
do, under similar circumstances
- Failing to do something that a reasonably careful
person would do under like circumstances
- Not strict liability
- Landowner is not an insurer of the condition of the
premises
2
Governmental entity owes same legal duty of care as a
private landowner with respect to condition of premises
owned, possessed or controlled.
Maintenance and control of property deemed to be an
“operational” activity – subject to suit.
Duty to Invitee
(1) Duty to maintain the premises in a reasonably safe
condition; and
(2) Duty to warn of hidden dangers which are known, or
should be known, to landowner, but which are unknown
to invitee and cannot be discovered by his exercise of
due care.
Collins v. Marriott Int’l, Inc., 749 F.3d 951, 960 (11th Cir. 2014)
Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362 (Fla. 2013)
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- Important to note that these duties are independent of each
other.
- Open and obvious nature of hazard may discharge landowner’s
duty to warn but does not discharge duty to maintain property in a
reasonably safe condition.
Rocamonde v. Marshalls of Ma., Inc., 56 So. 3d 863 (Fla. 3rd DCA
2011)
- Can prevail on failure to warn claim but be found liable for
negligent maintenance
- Fact that claimant who slipped and fell was unaware of the puddle
of water does not bar claim for negligent maintenance.
Mashni v. LaSalle Partners Management Ltd., 842 So. 2d 1035 (Fla.
4th DCA 2003)
- The converse is true, as well.
Property can be well maintained,
but if there is a latent danger, not susceptible to maintenance,
still have a duty to warn. (i.e.) curve in road, cannot be safely
negotiated at speed in excess of 30 mph.
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Duty to Licensee
Licensee – a person who enters upon premises solely
for his own convenience, pleasure or benefit and
whose presence is tolerated by landowner.
- Refrain from willful misconduct or wanton
negligence
- Warn of known dangers which are not open and
obvious
- Refrain from intentionally exposing licensee to
danger
Duty to Trespasser
- To avoid willful and wanton injury
- If trespasser is discovered, to warn of known
dangers which are not open and obvious.
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-
Landowner’s duty of care is non-delegable
-
Liability cannot be contracted away by entering into agreement
with a maintenance or cleaning company; management company,
etc.
-
Landowner may have contractual claim for indemnity/
reimbursement from management company, but does not eliminate
his potential liability to an injured claimant.
Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA
2014)
6
Road Defect Claims
Liability arising out of
ownership and
maintenance of
roadways represents
significant financial
exposure to all
governmental entities
7
Significant verdicts in
roadway defect cases
Citrus Co. v. McQuillin, 840 So.2d 343 (Fla. 5th
DCA 2000)
-
Roadside defect: 3-5 in.
Vehicle rollover
Wrongful death – wife and mother
Verdict: $5.56 million
8
Significant verdicts in
roadway defect cases (cont’d)
Cullison v. Orange Co., 9th Jud. Cir. Ct., No. CIO02-2502
-
Failure to install traffic light at known
dangerous intersection
-
Orthopedic injuries; coma for 8 mos.; brain
damage
-
Verdict: $11.86 million (later court reduced to
$11.39 million)
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General Legal Principles
Design
- Decisions relating to the design of highways, including
(a) the location and alignment of roads, (b) number of
lanes, and (c) placement of medians or traffic control
devices, are discretionary, planning level decisions and
governmental entities are immune from tort liability.
DOT v. Neilson, 419 So.2d 1071 (Fla. 1982).
Improve/Upgrade
-
Decisions whether to improve or upgrade existing
facilities are discretionary functions and sovereign
immunity applies. Perez v. Dade County, 662 So.2d 421
(Fla. 3rd DCA 1995); Leonard v. Wakulla Co., 688 So.2d
440 (Fla. 1st DCA 1997).
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General Legal Principles
(cont’d)
Hidden “trap”
-
Exception to the rule: When a governmental entity creates a known,
dangerous condition, which is not readily apparent to persons who could be
injured, an operational level duty arises to warn the public of, or protect the
public from, the known danger. City of St. Petersburg v. Collom, 419 So.2d
1082 (Fla. 1982).
-
Courts have clarified this exception applies only where there is a known
hazard so serious and so inconspicuous to a foreseeable plaintiff that it
virtually constitutes a “trap.” Cygler v. Presjack, 667 So.2d 458 (Fla. 4th DCA
1996); Scott v. FDOT, 752 So.2d 30 (Fla. 1st DCA 2000).
-
Fourth DCA refused to apply the exception in a case where the design of the
intersection, although admittedly confusing, was not sufficient to constitute
a “trap;” recognizing that “a certain level of hazard is intrinsic and
unavoidable of roadway construction and in the management of traffic flow.”
FDOT v. Allen, 768 So.2d 496 (Fla. 4th DCA 2000).; See e.g., DOT v. Konney,
587 So.2d 1292 (Fla. 1991) (stating virtually every intersection may be
inherently dangerous).
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General Legal Principles
(cont’d)
Maintenance
-
Governmental entity may be held liable for failing to
properly maintain existing roads. DOT v. Neilson, 419
So.2d 1071 (Fla. 1982); Tucker v. Gadsden Co., 670
So.2d 1053 (Fla. 1st DCA 1996).
-
Government entity cannot convert a maintenance
function into a planning level activity to which
sovereign immunity attaches by refraining from
inspection or maintenance of existing facilities, or by
adopting a policy of non-inspection. Simmonds-Hewett
v. Keaton, 626 So.2d 249 (Fla. 4th DCA 1993).
12
Liability for Trees
-
Landowner is not liable for damage (BI or PD) caused by tree
or limb which falls, unless it would have been apparent to a
reasonable person that the tree/limb was dead, diseased or in
need of removal/trimming.
-
Landowner not liable for damage caused by tree roots or
natural vegetation encroaching onto neighbor’s land.
-
Neighbor is permitted to remove/trim, at his expense, any
encroaching roots or limbs.
-
Private property owner does not have a duty to maintain roots
which encroach onto a public right of way. Sullivan v. Silver
Palm Properties, 558 So. 2d 409 (Fla.1990)
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Liability for Trees
(cont’d)
-
But landowner has duty to trim/remove foliage/landscaping
which encroaches on public roadway and obstructs traffic signage
or visibility to motorists. Morales v. Costa, 427 So. 2d 297 (Fla.
3d DCA 1983)
-
Owners or occupiers of commercial property can be liable for
obstructions to vision, located entirely upon their property, if it
is foreseeable that would cause a danger to pedestrians or other
motorists. Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001)
-
Owner of non-commercial property is not liable for natural
vegetation, located entirely within the boundaries of his
property, even if that vegetation impaired visibility of motorist.
Williams v. Davis, 974 So. 2d 1052 (Fla. 2007)
14
Transitory Substances
-
§ 768.0755, Florida Statutes – applies to existence of transitory
substances in a business establishment, effective July, 2010.
-
“Business establishment” defined as “…location where business is
conducted, goods are made or stored or processed or where
services are rendered.” Publix Supermarkets, Inc. v. Santos, 118
So.3d 317 (Fla. Dist. Ct. App. 2013)
-
Term interpreted to include:
(a) Public Community Colleges – McCarthy v. Broward College,
164 So.2d 78 (Fla.4th DCA 2015);
(b) Miami International Airport - Kenz v. Miami-Dade County,
116 So.3d 461 (Fla. 3d DCA 2013);
(c) U.S. Postal facility – Kertz v. U.S., 2013 WL 1464180 (M.D.
Fla. 2013)
-
Requires injured person to prove that business establishment (i) had
actual or constructive knowledge of the dangerous condition and,
(ii) should have taken action to remedy it.
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Transitory Substances (cont’d)
-
Injured party can prove constructive notice by way of circumstantial
evidence showing (i) that the condition had existed for such a length
of time that landowner should have known of its existence, or (ii) the
condition occurred with regularity and was, therefore, foreseeable.
-
Plaintiff failed to present evidence of actual or constructive notice
by landowner where he only produced evidence that floor was wet
and he slipped and fell.
-
There was no evidence of how long the slippery substance was on the
floor, or evidence to show landowner had caused or had actual notice
of the spill.
Vallot v. Logan's Roadhouse, Inc., 567 F. App'x 723 (11th Cir. 2014)
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Attractive Nuisance
-
Exception to the general duty of care owed to a trespasser
-
Applies only to child trespassers and child licensees
-
Under the attractive nuisance doctrine, a property owner is
liable for injuries suffered by a child trespasser if:
-
The property owner knows or has reason to know that the
place where the dangerous condition exists is one where
children will likely trespass
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Attractive Nuisance
(cont’d)
-
The condition is known or should be known to cause an
unreasonable risk of bodily harm to a trespassing child (i.e.,
constitute a trap or latent danger)
-
The child because of his or her age does not discover the
condition or realize the risk involved in intermeddling with it or
in coming within the area made dangerous by it
-
The burden of eliminating the danger is slight compared to the
risk posed to children
-
The property owner fails to exercise reasonable care in
removing the danger or protecting the child
-
Must have enticed the child onto the property
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Attractive Nuisance - Particular Cases
There is no liability for a child's drowning in a body of water, natural or
artificial, unless there is some unusual danger not generally existing in
similar bodies of water or the water contains a dangerous condition
constituting a trap. Allen v. William P. McDonald Corp., 42 So.2d 706
(Fla.1949); Gilbertson v. Lennar Homes, 629 So.2d 1029 (Fla. 4th DCA
1993) rev. den. 639 So.2d 979.
The lake's sharp change in depth is characteristic of lakes and does not
constitute a concealed dangerous condition. Kinya v. Lifter, Inc., 489
So.2d 92 (Fla. 3d DCA 1986) (artificial bank's slope not so different from
natural bodies of water)
Construction Sites
- A building under construction is not per se an attractive nuisance.
Concrete Construction v. Petterson, 216 So. 2d 221 (Fla. 1968).
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Attractive Nuisance - Particular Cases (cont’d)
- The Supreme Court of Florida has, however, upon several occasions
found that what it termed an attractive nuisance existed upon
premises where a building was in the process of construction . E.g.,
Atlantic Peninsular Holding Co. v. Oenbrink, 1938, 133 Fla. 325, 182
So. 812 (concrete floor collapsed due to latent defects); Johnson v.
Wood, 1945, 155 Fla. 753, 21 So.2d 353 (unprotected mortar box
placed near sidewalk and containing caustic ingredients).
Swimming pools - there is sufficient “allurement” where defendants, when
not at home, left open a door in a swimming pool enclosure and left a hose
at the edge of the pool through which water was running, the sound of
which was audible outside the enclosure. Samson v. O’Hara, 239 So.2d 151
(Fla. 2nd DCA 1970)
“Monkey bars” not inherently dangerous condition or trap, for purposes of
attractive nuisance doctrine. Alegre v. Shurkey, 296 So.2d 247 (Fla. 1st
DCA 1981)
20
Liability for Dangerous Conditions
of Adjacent Property
-
As part of duty to maintain premises in a reasonably safe
condition, property owner also has a duty to maintain property
to prevent foreseeable issues that exist on adjacent property.
-
Private school with buildings located on opposite sides of
highway necessitating frequent crossings by students owed duty
of care to student struck by motorcycle while crossing highway.
Almarante v. Art Inst. of Fort Lauderdale, Inc., 921 So. 2d 703,
705 (Fla. 4th DCA 2006)
-
Golf club held liable when golfer fell to his death from cliff
located on adjacent property, accessible only from golf club
property. Danger was foreseeable, hence triggering duty of
care. Collins v. Marriott Int’l, Inc., 749 F.3d 951, 960 (11th Cir.
2014)
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Violation of Statute, Policy, Industry Standard
Violation of statute is:
(a) Negligence per se if statute establishes a duty to take precaution
to protect a particular class of persons from a particular type of
injury, and plaintiff is in that class and suffers that type of injury
(b) Evidence of negligence, if statute establishes a general duty of care
for public, in general
Violation of internal policy/rule is relevant evidence on the standard
of care and admissible at trial, but does not necessarily establish a
legal standard of care
Mayo v. Publix Super Mkts., Inc., 686 So.2d 801, 802 (Fla. 4th DCA
1997); aff’d Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928,
932 (Fla. 2004).
Violation of industry standards is evidence of negligence.
Seaboard Coast Line R. Co. v. Clark, 491 So.2d 1196 (Fla. 4th DCA
1986)
22
Common Defenses
a.
Duty to maintain
i.
No notice, premises routinely inspected, repaired,
maintained
ii.
Facility recently constructed or installed, in good repair,
therefore, no requirement for maintenance
iii. Facility is such that routine inspection or repair is not
reasonably contemplated – manufacturer’s
specifications; useful life expectancy
iv. Comparative negligence
v. Condition not unreasonably dangerous or expected to
cause injury, therefore, premises reasonably maintained
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FLORIDA DEPARTMENT OF TRANSPORTATION
MAINTENANCE RATING PROGRAM
HANDBOOK
2012
2015
24
FLORIDA DEPARTMENT OF TRANSPORTATION
MAINTENANCE RATING PROGRAM
HANDBOOK
2012
2015
25
Common Defenses (cont’d)
a.
Duty to warn
i. No notice – actual or constructive
ii. Condition open and obvious
iii. Condition known or could be reasonably discovered by
claimant
iv. Comparative negligence
26
Failure to Warn
Open and obvious: Conditions found by courts to be “open
and obvious” and, therefore, not dangerous, as a matter of
law, for pedestrians.
Landscaped area, consisting of dirt, grass, trees, and mulch,
not designed for pedestrian traffic where property owner
provided available adjacent concrete walkway.
Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014)
rev. den. 151 So.3d 1231; City of Melbourne v. Dunn, 841 So.
2d 504 (Fla. 5th DCA 2003).
27
Failure to Warn
(cont’d)
A wheel stop in a parking space
Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415
(Fla. 1st DCA 2013)
Steps & elevation changes that have similar colored surfaces
Gorin v. City of St. Augustine, 595 So. 2d 1062 (1992);
Aventura Mall Venture v. Olson, 561 So. 2d 319
(Fla. Dist. Ct. App. 1990)
Uneven parking lot pavement
Circle K Convenience Stores, Inc. v. Ferguson,
556 So. 2d 1207 (Fla. 5th DCA 1990)
Multiple floor levels or existence of steps
Rice v. Whitehurst, 778 So.2d 1027, 1028
(Fla. 4th DCA 2001)
Note: factors such as lighting, distraction, weather, visibility, unique
circumstance may impact analysis.
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Strategies
Implement a formal, periodic inspection program
 Identify the person with responsibility
 Create a formal inspection form
 Maintain all inspection forms for at least 5 years
Maintain record of all maintenance activities
 Include description of (a) specific location, (b) nature of work
performed, and (c) employee(s) involved
Implement a complaint/reporting procedure
 Designate a single repository for receipt of reports
 Maintain reports for at least 5 years
 Report should include date of the incident and date reported, specific
location, nature of defect, name of reporter/person making
complaint, person assigned to investigate/inspect, results of
inspection/repair.
 If possible, get written description of incident from injured party,
signed (before they “lawyer up”)
 List all witnesses – names and addresses
29
Strategies
(cont’d)
Prompt investigation of all reported defects/accidents




Preservation of evidence – spoliation.
Photographs – location saved.
Measurements – tape measure, quarter, Coke can.
Persons conducting investigation.
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Michael J. Roper, Esquire
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, Florida 32803
(407) 897-5150
MRoper@bellroperlaw.com
www.bellroperlaw.com