Articles Posted in Premises Liability

The phrase “premises liability” is generally associated with slip and falls or shoddy construction. However, premises liability can extend to a wide variety of other types of dangerous conditions. For instance, the Second District Court of Appeal recently rendered judgment in Grover v. Karl, which addressed whether a business owner could be liable for a patron’s injuries arising from a bar fight.

Grover started with a fight at The Karl Reef, which is located near New Port Richie, Florida. The plaintiff did not participate in the fight, but she fell and was injured during the course of events. The plaintiff brought a premises liability suit against the bar’s alleged owner and property owner. The bar’s manager was near the plaintiff when the fight ensued. The facts regarding how the plaintiff fell were unclear. The plaintiff originally alleged that she fell when a different bar patron intentionally attacked her. However, during her deposition, the plaintiff testified that when the fight broke out, the manager was shoved and, as a result, fell onto the plaintiff unintentionally. Following discovery, the defendant moved for summary judgment, contending that the allegations in the complaint were contradicted by the deposition testimony, and there was no issue of material fact regarding the defendant’s notice of the danger or an opportunity to prevent it. Following the defendants’ motion for summary judgment, the plaintiff moved to amend her complaint. The proposed amended complaint sought to add the bar’s manager as a defendant and change the allegations so that they were more consistent with the deposition testimony. Specifically, the plaintiff sought to allege that the manager grabbed her arm and jostled her during the fight, resulting in the fall. The trial court granted summary judgment based on the original complaint and denied the plaintiff leave to amend. The plaintiff appealed.

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Florida is a comparative negligence state, see Section 768.81 Florida Statutes, which means that if a plaintiff’s negligence contributed to his or her injury, recovery can be offset to reflect his or her role in the harm caused. Accordingly, defendants in negligence suits will often argue that certain acts of the plaintiff contributed to the injury. However, to succeed in offsetting liability, the defendant must still prove that the contributory conduct was actually negligent. The Fifth District Court of Appeal recently addressed the dynamics of comparative negligence in its decision in Bongiorno v. Americorp, Inc.

The plaintiff in Bongiorno slipped on what she described as an unusually slippery bathroom floor in the office building where she worked. She brought a negligence suit against the property owner, arguing that negligence in maintaining the floor caused her fall. Among the affirmative defenses asserted by the defendant was comparative negligence. The evidence shows that the plaintiff was wearing four to five inch high heels at the time she fell. The case proceeded to a bench trial, after which the judge concluded both the property owner and the plaintiff were 50 percent liable for the fall. The judge found the plaintiff’s choice to wear heels of that height contributed to her fall. The plaintiff appealed to the Fifth District, arguing that there was insufficient evidence in the record to show that she was negligent for wearing high heels to work.

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The Supreme Court of Florida recently issued an opinion reversing a Fourth District Court of Appeal decision we cited in a previous post. The decision, Sanders v. ERP Operating Limited Partnership, examines when a defendant is entitled to a directed verdict in negligent security action.

The events leading to the Sanders case started in late 2004 when two young adults moved into an apartment complex that was marketed as a gated community. A year after they moved into the complex, the two were shot to death inside their apartment by unknown assailants. There were no signs of forced entry, but possessions including an engagement ring, cash, and credit cards had been taken. Evidence adduced during discovery showed that in the three years prior to the murders there had been two prior “violent” incidents at the gated community when the gate had been broken and criminals followed residents onto the property. During the year of these murders, the gate had been inoperable for a total of four months. One incident resulted in an armed robbery, the other in an assault. Though a governing manual provides that notice be given to residents when such acts occur, no notice was provided after these incidents.

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Typically, if one were asked to think of an object involved in the commission of a tort, an ornamental vegetable would not spring to mind. However, harm caused by an ornamental pumpkin is at the center of a recent negligence decision from Florida’s Fifth District Court of Appeal, Schwartz v. Wal-Mart Stores, Inc. Specifically at issue in Schwartz was whether the trial court erred in granting a motion for a new trial following a zero-damages jury verdict and whether the trial court erred by limiting the retrial to just damages for the plaintiff’s initial medical evaluation after the accident.

The plaintiff in this case was shopping at a Florida Wal-Mart store when she was struck in the back by an ornamental pumpkin. The ornamental pumpkin weighed 8.4 ounces and was described as squishy. Prior to trial, Wal-Mart conceded that the plaintiff was struck by the pumpkin because of an employee’s negligent conduct. However, Wal-Mart contested both causation and damages, which are both necessary for establishing negligence. After trial, a jury issued a zero-damages verdict, finding that Wal-Mart’s negligence was not the “cause” of the plaintiff’s claimed loss, injury, or damages. The trial court granted the plaintiff’s motion for a new trial but limited the new trial to strictly those damages associated with the plaintiff’s initial medical evaluation following the accident. On appeal, Wal-Mart argued that the trial court should not have granted the motion for a new trial, and the plaintiff argued that the trial court should not have limited the inquiry on retrial so narrowly.

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Although negligence predicated on a failure to provide adequate security is not a novel cause of action, there are many questions regarding its application that have yet to be resolved by Florida’s highest court. Foremost among these unresolved questions is whether the standard for premises liability or the standard for ordinary negligence applies when determining liability in a negligent security case. In a recent opinion, Nicholson v. Stonybrook Apartments, LLC, the Fourth District Court of Appeal established what standard would be applied in cases arising in its jurisdiction, which encompasses Broward County and Palm Beach County.

 Nicholson arose from a shooting during a party at an apartment complex managed by the defendant. The plaintiff was shot in the apartment complex’s common area and brought suit against the apartment complex, arguing that it failed to maintain its premises in a safe condition and failed to provide adequate security on the property. The suit went to trial, and a jury ruled in favor of the apartment complex, finding that management was not grossly negligent. However, the plaintiff appealed the judgment, arguing that the trial court erred in both allowing the defense to admit evidence regarding her status as a trespasser at the time of the injury and instructing the jury that the plaintiff’s status as an invitee or trespasser was pertinent to the standard of care to be applied.

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In a recent decision, Collins v. Marriott International, Inc., the Eleventh Circuit Court of Appeals reviewed an interesting case that involved the un-witnessed death of an Atlanta businessman at a Gulf resort in the Bahamas. At the trial level, the case had progressed all the way to trial, but the trial court ultimately granted the defendants’ motion for judgment as a matter of law, leaving the estate of the deceased person with no recovery. In response, the estate, the plaintiff in this action, appealed.

The death at issue occurred at a resort in the Bahamas where the deceased person owned property. The resort is located on the island of Abaco in the Bahamas and is situated at the end of a peninsula ending in a rocky promontory called “the Point.” The Point is composed of  rock formations, steep cliffs dropping to the sea, and a blowhole opening through which waves crash. The resort does not own the area known as the Point, but the land is only accessible from resort property and was not clearly demarcated or separated from the club’s property with either fencing or signage. On the evening of August 16, 2007 at sunset, the deceased person and  friends who accompanied him to the club took a golf cart to the Point, which is located only 50 feet from one of the resort’s paths. While his friends were taking pictures, the deceased man decided to walk up the crest of the Point. When his friends walked up to the crest no more than 10 minutes afterward, however, he was not to be found. The friends returned to the resort, and they and resort staff began searching for the deceased person. His body was found the next day in the water of a cove a few miles from the resort.

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Many negligent security cases involve a property owner’s liability for failing to adequately secure property from foreseeable third-party criminal activity that causes harm to a resident or other visitor. However, the Sun Sentinel recently reported on the 1.5 million-dollar settlement of a case that presented a more novel theory of negligence in the area of apartment security, which involved the failure of a property management company to adequately screen residents, one of whom eventually murdered another.

This case arose from the tragic shooting of a former Marine in the parking lot of an apartment complex in Plantation, Florida on July 17, 2012. The former Marine was a resident of the apartment complex, and the murderer, as noted above, also resided at the complex. Witnesses at the time of the murder said they were unaware of any preexisting grievance between the two residents. However, the murderer had been a resident at a different apartment complex in Plantation, managed by the same property management company that managed the apartment complex where the murder occurred. The murderer had been evicted from the first property for causing disturbances and making death threats against other tenants. Information regarding the murderer’s eviction was part of a background investigation performed by the management company, but this background check was never reviewed before the decision to permit the murderer to rent an apartment was made. Following the murder, the Marine’s widow brought a wrongful death suit against the property management company, arguing that the management company failed to exercise reasonable care in its evaluation of prospective tenants and that this breach of reasonable care led to the death of her husband.

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At issue in almost all personal injury litigation is the extent of a plaintiff’s physical injuries. Indeed, long before a possible trial, both plaintiffs and defendants enlist physicians to perform medical examinations and make professional determinations regarding the nature and extent of the alleged injuries. Given the obvious privacy interests associated with physical examinations and the defendant’s need to acquire evidence to rebut a plaintiff’s claims, problems related to medical examinations are not uncommon. Some of these possible issues are on full display in Kropf v. Celebrity Cruise, Inc., a recent decision from the U.S. District Court for the Southern District of Florida.

Kropf arose from a slip-and-fall accident on a cruise ship owned and operated by Celebrity Cruises, Inc., the defendant in this case. The plaintiff was injured as a result of the fall and underwent revision surgery of a prior hip replacement. The surgery led to further permanent, debilitating, and significant injuries. In her complaint, the plaintiff alleged the defendant’s “negligence in allowing [the tile] to remain in a wet and slippery condition” caused the fall and, consequently, the resulting injuries. Following the initiation of the action, counsel for Celebrity Cruises emailed the plaintiff’s counsel a Notice of Compulsory Medical Evaluation, which stated the plaintiff needed to undergo a medical examination by the defendant’s medical expert and that the examination was being conducted for the purposes of determining the nature and extent of the plaintiff’s alleged injuries and any disabilities resulting from them. This notice was sent on October 14, 2014, but the plaintiff’s counsel did not respond until November 14, 2014, only about two weeks before the scheduled examination of December 1, 2014. The response stated that the plaintiff’s counsel intended to send a videographer to the medical examination. In response, the defendant brought a motion, asking the court to preclude both the plaintiff’s counsel and the plaintiff’s videographer from attending the medical examination.

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An issue of importance that any potential plaintiff must consider at the initiation of litigation is whether to bring his or her case in state or federal court. Given the differences in both procedural and, in more limited circumstances, substantive law to be applied, this choice can have a marked impact on the outcome of a case. Although not all litigants will have this option, since certain cases are limited to a particular forum based on their design or the issues involved, when the option presents itself litigants will often make an effort to keep the case in the chosen forum. Issues regarding the selective choice of forum were addressed in Garber v. Wal-Mart Stores, Inc., a recent decision from the United States District Court for the Southern District of Florida.

The Garber case arose from a slip-and-fall accident at a Wal-Mart store in Delray Beach, Florida. Following the fall, the injured customer brought a premises liability suit against Wal-Mart in the Circuit Court of the Fifteenth Judicial Circuit of Florida. Following initiation of the case, the defendant served a Request for Admission on the plaintiff, which asked in part that the plaintiff admit she was seeking less than $75,000 in damages. The plaintiff denied the admission. In a following response to interrogatory requests served by the defendant, the plaintiff claimed more than $88,000 in medical expenses. Thereafter, the defendant filed a notice of removal to federal court, since the action could’ve originally been brought in federal court because the parties were residents of diverse states and the amount in controversy exceeded $75,000. The parties then entered into a joint stipulation to dismiss the case without prejudice. Following dismissal of the first action, the plaintiff brought a second action in Florida state court, which was substantially similar to the first, except for the fact that the plaintiff added a new defendant, the manager of the Wal-Mart where the fall occurred. Following initiation of the second suit, Wal-Mart again filed a Notice of Removal. Following removal, the plaintiff made a motion in federal court to have the case remanded back to state court, since there was no federal subject matter jurisdiction. Therefore, at this juncture, the federal court needed to determine whether the presence of the new defendant eliminated possible federal jurisdiction such that the action could no longer be removed to federal court and, accordingly, should be remanded to back to state court.

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Although it is uncommon for premises liability cases to find their way to federal court, the specifics of a case occasionally make resolution in the federal setting possible. When such federal adjudication is accessible, litigants will often strategically use the availability of the federal forum – and, more importantly, the differences in its rules – to their advantage. A recent case from the Southern District of Florida, Fink v. Burlington Coat Factory of Florida, LLC, provides an example of this strategic use of forum selection.

Fink arose from a slip and fall accident at the Burlington Coat Factory in Sawgrass Mills Mall. As a result of the fall, the plaintiff suffered a variety of severe injuries, and she decided to bring a premises liability suit against Burlington Coat Factory and several other defendants. In her complaint, the plaintiff made somewhat conclusory allegations of negligence. Specifically, the plaintiff stated that the defendants negligently maintained the floor in a bumpy and unsmooth condition, which was characterized by unsafe protrusions. However, the plaintiff did not state any particular condition or characteristic that existed and directly caused her fall. The plaintiff originally brought her suit in state court in Broward County, but the defendants, recognizing that the action could have been brought in federal court, had the case removed to the Southern District of Florida pursuant to 28 U.S.C. § 1332(a). After removing the case to federal court, the defendants brought a motion to dismiss, arguing, in part, that the plaintiff’s pleadings were insufficient to maintain her cause of action based on the federal pleading standards delineated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

For many standard causes of action, both state and federal procedural rules provide form documents outlining the essential facts and allegations one can plead to bring a case. In the instant case, the plaintiff’s complaint was substantially similar to the form pleadings for “fall-down negligence” claims provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P. Form 1.951. Although the action had been brought in state court, where such pleading would have been sufficient, the defendants nonetheless argued that Florida form pleading was insufficient under federal pleading standards. One can see the irony of this argument, considering it was the defendants who brought the case to federal court. However, despite the defendants’ calculated use of the federal removal statute, the court determined that, irrespective of the heightened pleading standard in federal court, the plaintiff’s factual allegations were sufficient to overcome the motion to dismiss.

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