Articles Posted in Premises Liability

Florida case law has long held that the proprietor of a business must use reasonable care in maintaining the property. The owner or manager must learn the actual condition of the premises and then either make the area safe or warn of any dangerous conditions. If a condition is obvious, or one that can be readily perceived through the ordinary use of the senses, the proprietor is relieved of the duty to warn.  A First District Court of Appeal decision (Case No. 1D16-1285) looks at what constitutes an obvious condition and when a proprietor is relieved from liability under premises liability law.

In the case, the injured patron of a grocery store went to make a purchase and obtain empty boxes. He made four trips in and out of the store. During these trips, another company was delivering a shipment of beer. The beer was stacked about five feet high on a pallet between the entrance and exit doors, with an empty pallet sitting on the delivery cart’s prongs to the right of the exit. The injured patron saw the empty pallet but tripped and fell, suffering injuries. The injured patron filed suit against the grocery store, alleging the store failed to warn of the dangerous condition and failed to keep the sidewalk safe.

During the early part of litigation, the injured patron provided an affidavit from an expert, alleging the store created an unsafe condition. The store provided still-shots from video surveillance. The injured patron had previously testified during a deposition that he did not notice the empty pallet on the first two trips, but he did notice it on the third. The injured patron testified that he tripped on the prong underneath the pallet, rather than on the pallet itself. After reviewing the evidence provided by both sides, the trial court granted the store’s motion for summary judgment, determining the pallets to be an open, obvious, and ordinary condition. The court found that the condition was not inherently dangerous, relieving the store of any duty to warn and liability for injuries.

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Personal injury litigation presents challenges at every turn. After a lawsuit is filed, parties often submit motions before trials are scheduled, seeking various types of relief from default judgment to dismissal. In a recent case (No. 2D15-0834), the Third District Court of Appeal reviewed a summary judgment for the defendants in a slip and fall lawsuit. The court agreed with the defendants that there was no genuine issue of material fact for a fact-finder to decide, and it dismissed the case against the hospital and cleaning company.  The injured woman, who suffered a slip and fall accident in the emergency room hallway of a hospital, appealed the decision.

The accident occurred when the woman arrived at the emergency room to assist her mother. Upon arrival, she found her mother resting and learned that she would need to be admitted to the hospital once a bed was open. After five hours had passed, the woman decided to find someone to determine how much longer they’d have to wait, and she saw what she believed to be an EMS paramedic with a spray bottle in the hallway cleaning a stretcher. The woman attempted to go around but then slipped and fell on what she “guessed” was spray liquid. The woman filed suit against the hospital, the housekeeping system, and the Risk Management Division of the county.

Throughout the litigation, the injured woman provided statements about who she thought was in the hallway and what she thought caused her to slip. The injured woman stated that the person cleaning the stretcher “may be a rescue” and also testified that there were no signs indicating the floor would be wet. She acknowledged that she didn’t see any mops, mop buckets, or food service items. She also stated that the substance smelled like a pine-scented cleaning product, and she wasn’t sure how long the substance was on the floor. The hospital and cleaning company moved for summary judgment, based on the lack of evidence that either of them knew or should have known of the slippery condition. Both the hospital and the cleaning company argued they employed staff to ensure the spaces were kept clean and clear, and they implemented a schedule to systematically check and clean surfaces.

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In Florida car accident cases, it is commonplace to see an insurance company indemnify, or take on a personal injury action on behalf of its insured. It is not often a hospital takes on a claim on behalf of a patient, but it happened in the recent Florida Court of Appeal case, Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Association (aka NICA), No.1D16-32. The appellate court certified the hospital’s ability to sue as an interested third party because it had a direct economic interest in avoiding civil litigation and liability for injuries that might otherwise be covered by NICA, § 766.302(2), Fla. Stat., an Act that provides benefits to qualifying infants with birth-related neurological injuries.

NICA issues benefits to infants who suffer an injury to the brain or spinal cord caused by oxygen deprivation or a mechanical injury during delivery that results in a permanent and substantial mental or physical impairment.  A baby from a single gestation must weigh at least 2,500 grams (approximately 5.51 pounds) at birth. A baby from a multiple gestation must weigh 2,000 grams (approximately 4.41 pounds) at birth. A disability or death due to a genetic or congenital abnormality is not covered by NICA.

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To litigate a Florida personal injury lawsuit, the action must be filed within the prescribed period set by statute and in the correct forum. The time period may differ, depending on the type of negligence action, and can potentially be changed by a contractual agreement between the parties to the case. Likewise, certain criteria set by statute must be met to file an action in state or federal court, and these can be limited even further by contractual agreement. The federal Eleventh Circuit Court of Appeals in Chang vs. Carnival Corp. (Case #: 14-13228) addresses these limits, reviewing whether or not the injured passenger attempted to file suit within the contractually agreed upon parameters set by her cruise ticket.

The injured passenger slipped and fell while on a cruise on December 9, 2012. The injured person’s ticket included a forum selection clause, which limited the time to file suit to one year and required the suit to be filed in the Southern District of Florida federal court, as long as subject matter jurisdiction requirements were met. If those weren’t met, the forum selection clause then limited any state court filings to occur in Miami-Dade County, Florida. The injured passenger initially hired an attorney based in California. The attorney was twice notified by the cruise line that it would not waive the forum-selection clause on September 4, 2013 and October 22, 2013. The injured passenger then hired counsel in Florida, who filed suit on December 4 or 6, 2013 in state court instead of federal court, as required by the forum selection clause. The cruise line moved to dismiss the state court action. While the motion to dismiss the state action was still pending, the injured passenger’s counsel then filed suit in federal court, nearly three months after the one-year limitation had already passed.

The cruise line filed for summary judgment in the federal court action, again pointing to the failure to file within the prescribed deadline at the correct location. The injured passenger argued that the limitation had equitably tolled, and the case should not be dismissed, since she tried to meet the requirements of the forum selection clause. On appeal, the injured passenger pointed to another, similar case in which the federal court allowed a different injured passenger to continue with his negligence action, despite filing after the one-year deadline and in state court. (See Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008).) The circuit court acknowledged they did find in favor of the injured passenger in that case, noting that equitable tolling occurs when four things happen. First, the state court must possess subject matter jurisdiction concurrently with the federal court. Second, the state lawsuit must have been dismissed solely on the ground of improper venue. Third, the defendant must have been aware prior to the expiration of the limitation period that the injured person intended to file suit. Fourth, the injured passenger must be entitled to believe that his state filing might be sufficient, since defendants are able to, and often do, waive the defense of improper venue.

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Maximizing damages in personal injury cases can be more than negotiating and litigating with the at-fault party. If there are unpaid or underpaid medical bills, hospitals and other medical service providers can seek reimbursement from the injured person. Insurers may also seek reimbursement from the policy-holder or from another insurer, depending on how much was paid, if there were multiple insurers obligated to pay, and what was agreed upon in each policy. In Humana Medical Plan Inc. vs. Western Heritage Ins. Co. (No. 15-11436), the Eleventh Circuit Court of Appeals assessed whether or not a corporate insurer, acting as an Medicare Advantage Organization (MAO) under Medicare Part C, can sue the insurer (the primary payer) for a hotel chain that settled a personal injury case with a woman injured on hotel property.  The MAO initially sought reimbursement from the injured woman and her husband, but then it chose to pursue the insurer, creating new federal case precedence for Florida.

Following the premises liability accident, the injured woman sought medical treatment, which was billed to and paid by the MAO at $19,155.14. After the woman sued the hotel property, the MAO sent her a bill in the same amount, which is allowed under Part E of the Medicare Act (known as the MSP), under which Medicare payments are secondary and reimbursable if any other insurer is liable. This includes a personal injury defendant’s insurer. The amount was not appealed by any party to the action. As part of the settlement, the insurer and hotel chain tried to include the MAO on the settlement draft. The injured woman and her husband refused and sought sanctions for non-compliance with the settlement agreement. The amount was held in trust, and the hotel chain paid $115,000 to the couple. The insurer then went after reimbursement from the hotel’s insurer under the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A), which allows double damages. The Florida federal district court granted summary judgment to the MAO, ordering the double damages under the MSP, and the hotel’s insurer appealed.

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In all Florida personal injury cases, the jury must decide whether to believe some or all of the version of events put forth by the plaintiff, or some or all of the version of events put forth by the defendant. Formally, they are tasked with determining any genuine issues of material fact. Case law places this task firmly in the hands of a jury. Judges, on the other hand, are responsible for determining matters of law, and they must allow the jury to hear all relevant evidence that is not precluded by law. In a recent decision, McNabb v. Taylor Elevator Corp. (2D15-4838), the district appellate court looked at whether or not an expert witness unveiled a genuine issue of material fact in his affidavit, and whether the trial court erred by ruling in favor of the defendants’ summary judgment, dismissing the case.

The injured party in this case filed suit after sustaining injuries from slipping on an oil leak near an elevator on the premises of a condominium complex.  An elevator seal broke prior to the accident, leaking into the machine room and out into the hallway where the fall occurred. The elevator service technician testified that the leak was dripping every two seconds and that the oil was a quarter-inch deep. The injured man alleged that the elevator and the surrounding area were negligently maintained. The defendants in the case (the condominium association and the elevator servicing company) filed for summary judgment, arguing that the testimony of the inspectors ruled out negligent maintenance, since there was no leak at the time of the inspection. The injured man submitted the testimony of his own expert witness, a mechanical engineer, who opined that the seal had been leaking for between 4 1/2 and 18 days. The expert based his determination on the rate of the drip, the depth of oil observed, and the dimensions of the machine room.

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Across Florida, people suffer all types of injuries at the hands of others’ negligence. Civil law provides a way to help those injured become financially and physically whole again, while holding those responsible accountable for their actions. What needs to be filed can vary from case to case, so it is important to have experienced Florida personal injury counsel at your side. If the negligent party is a government entity, the defendant may be able to claim immunity from suit, formally known as “sovereign immunity.” The Second District Court of Appeals recently reviewed a slip and fall action, and it reversed the ruling in favor of the county, allowing the injured woman to continue her case in Nelson v. Hillsborough County, Florida (2D15-579).

The trial court dismissed the injured woman’s personal injury complaint with prejudice when she filed suit after slipping and falling outside the county’s courthouse. The county filed a motion to dismiss with prejudice, arguing the injured woman failed to sufficiently allege compliance with the notice requirements found under the state law governing sovereign immunity. (See Florida Statutes Section 768.28(6)(a).) This statute provides a waiver of sovereign immunity in tort actions brought against the state or any of its agencies or subdivisions, but only after the claimant presents a claim in writing to the appropriate agency and the Department of Financial Services within three years after the claim accrues.

The notice provided by the injured party must also allege that they were in compliance with 768.28(6)(a). This then shifts the burden to the defendant to deny such compliance, which can then return the burden to the injured party to prove the allegations concerning the subject matter. The appellate court pointed out that this process did not instantly lead to a consideration of dismissal. In looking at the history of this case, the court noted that the injured woman’s complaint included a statement asserting that proper notice had been given, but the injured woman failed to attach any documentation to back up her assertion.

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Construction workers and their families often have workers’ compensation available to them in the event of an accident.  This helps provide needed funds for medical care and lost wages.  However, other parties may be responsible for the accident in the workplace, whether it is another subcontractor, the general contractor, or a separate third party altogether.  Under Florida law, an injured worker has the ability to file suit against any of these parties where standard negligence law applies.  To receive damages, the at-fault party must owe a duty to the injured under the law.

In Fuentes vs. Sandel, Inc. (No. 3D14-3007), the appellate court reviewed a summary judgment in a wrongful death case in favor of the defendants.  The deceased worker fell through a skylight while painting a warehouse roof as an independent contractor.  His wife filed suit against the owner of the property and the owner of the manufacturing business who hired her husband’s employer to paint the warehouse roof.  Prior to the fatal accident, the deceased painter’s employer and the president of the manufacturing company met.  The independent contractor employer was warned about the danger of the skylights and the need to be fastened to the safety ropes.  The contractors were specifically told that they would fall through if they stepped on the skylight. 

In the suit, the executor of the estate alleged that the manufacturing business and owner of the building were responsible for the death of the painter since they controlled, managed, and maintained the warehouse premises.  The suit alleged that there was a failure to comply with the building code, maintain the skylight, provide a guard or screen to prevent someone from falling, and warn against the danger.  The owner of the building and the owner of the manufacturing business moved for summary judgment, arguing that there was no duty owed to the independent contractor, specifically the manufacturer, who only hired the painters but did not control their work.  The defendants also argued that there was a warning issued, and that the dangers were inherent in the work performed.  The trial court was persuaded by the defendants’ arguments and granted summary judgment. 

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In a Florida slip-and-fall case, there are two main questions to consider. One question is whether or not the store or property owner failed to warn of the dangerous condition. The other is whether the store or property owner failed to use ordinary care to maintain its premises in a reasonably safe condition. The Third District Court of Appeal looked at the second issue in a recently issued decision, Dominguez vs. Publix Super Markets, Inc. (No. 3D14-2212). This case stands out thanks to the store’s surveillance video, which allowed the court to review the spill, the store’s action, and the accident itself while considering the accompanying legal questions.

The video revealed that after several customers passed through the aisle, a bottle of detergent fell. A manager happened to be at the opposite end of the aisle and ran to the spill after he heard it. The court noted that nine seconds passed between the bottle falling and the manager standing over the spill. The injured customer slipped and fell four seconds after the manager arrived at the spill, while the manager had his back to her as she rounded the aisle. The court timed the whole incident between the spill of the detergent and the fall of the customer at 13 seconds.

The court discussed the duties a property owner owes to customers it invites to the business. There is the duty to warn of concealed dangers that are known or should have been known to the owner, but are unknown to the customer and unable to be discovered through ordinary care. There is also the duty to use ordinary care to maintain the premises in a reasonably safe condition. The court, after viewing the video, did not feel the store failed either obligation under the law.

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A Florida slip and fall accident can cause significant and costly injuries. As an injured party, the first priority should be your health, but the concern for how to pay for the injuries soon follows. An experienced Florida personal injury attorney can help maximize your recovery to help cover the expenses incurred due to lost wages, hospital charges, and doctors’ fees. Part of recovery is making sure those who are at fault for your injuries are held accountable.

In a recently published Florida Third District Court of Appeal case, Taylor vs. Admiral Ins. Co., an injured employee pursued recovery from her employer, the caterer of an event held at an attraction owned by a Florida county. The employee also pursued actions against the county and the attraction. The county and the attraction looked to the employer’s insurer to indemnify them in the lawsuit, but the insurer refused to indemnify the county and the attraction. Following this refusal, the county and the attraction agreed to settle for a total of $575,000 with the injured person. They also both assigned all of their rights under their insurance policy for claims of breach of contract and bad faith against the insurance company.

The injured person pursued the third party action, discovering that the county and the attraction had obtained policies through a broker used by the employer’s insurer. The catering employer requested that the broker bind coverage for its business, with the assurance that it included coverage for blanket additional insured. After this assurance was made by the insurer, a certificate was issued to the attraction, along with 90 other entities connected to the catering business. At no point was any of these entities advised that they could not be insured.

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