Premises liability is the area of law establishing whether or not a property owner properly maintained their property to avoid a dangerous or hazardous condition. A premises liability lawyer attempts to prove that when an accident occurred:
The accident was avoidable The owner knew or should have known about the hazard The property owner should have taken reasonable steps to eliminate the dangers The victim was a protected class of visitor
Premises liability law in Florida can be complicated. When someone was injured on a property, it is essential to establish who was responsible and whether or not the property owner had an obligation to keep the area safe.
If you were injured on someone else’s property a premises liability attorney can help. With years of experience litigating premises liability cases in Miami, a premises injury lawyer and law firm like Schlacter Law can establish who was responsible and to what extent. Seeking the help of a premises liability law firm can ensure that you receive the highest amount of compensation available under your circumstances.
A premises liability lawsuit looks at the type of visitor a victim was at the time of the accident. There are several different classes of visitors, and not all classes are afforded the same duty of care. Having a lawyer determine the class of a victim is instrumental in establishing the duty of care owed at the time the accident occurred. There are three general classes of visitors:
Invitee Licensee TrespasserLooking at the first class of visitor, there are two classes of invitees under premises liability law. The first is a public invitee. Florida courts have looked to the Second Restatement of Torts, §332(a) to define a public invitee as a “person who is invited to enter or remain on land as [a] member of the public for [a] purpose for which the land is held open to the public.” An example of a public invitee is someone entering a public or private park.
This differs from the definition of a business invitee under the Second Restatement of Torts, §332(b), which is someone “invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” An example of a business invitee is someone entering a Publix or Home Depot for the purpose of purchasing goods.
The second class of visitor is the licensee. The licensee is someone considered to be a social guest, and is further defined in the Second Restatement of Torts, §330, as a “person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Examples of a licensee might include a guest at a party or a visiting friend. There are two types of licensees. An invited licensee and an uninvited licensee.
The third class of visitor is the trespasser. A trespasser is defined in the Second Restatement of Torts, §330, as “a person who enters or remains upon [the] land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” A common example of a trespasser is a burglar, who enters a property for their sole benefit, and without any permission to do so. A separate type of trespasser would be a child entering someone’s property without permission to use a swimming pool. This type of trespasser is afforded a higher duty of care than the typical trespasser since the pool may be considered an attractive nuisance.
Each of these classes is afforded a different duty of care. If a property owner failed to provide the proper duty of care, they may be liable for any injuries or damages in a premises liability lawsuit. If a Miami lawyer successfully wins a claim then the victim would be entitled to compensation. Since premises liability classifications are complex, getting help from a premises liability lawyer is the first step in determining if any compensation is available.
After a lawyer establishes what type of visitor a victim was at the time of an accident, it is necessary for a lawyer to determine the duty of care the property owner owed the victim for a premises liability lawsuit to proceed.
Invitees are owed the strongest duty of care to protect them from hazards and dangers. Essentially, a Miami landowner must fix problems or dangers that the land owner knew or should have known by the use of “reasonable care,” and which the invitee cannot and should not understand or know by the use of “reasonable care.” The land owner or operator must sustain and maintain the property in a “reasonably safe condition” which shall include guarding the land from crimes.
There are two types of licensees. Licensee by invitation and uninvited Licensee. If the patron was a licensee by invitation the duty of care is the same as an invitee. If the patron was an uninvited licensee the land owner must refrain from intentional (willful or wanton) injury. This is the same for a trespasser. A trespasser is owed the smallest duty of care. A property owner’s duty is to “refrain from wanton and willful conduct”, and will be liable only for “intentionally injuring the trespasser,” Second Restatement of Torts, §335. An example of breaching this duty of care would be the setting of a trap to intentionally harm someone on the property.
After a lawyer establishes what type of visitor a victim was at the time of an accident, it is necessary for a lawyer to determine the duty of care the property owner owed the victim for a premises liability lawsuit to proceed.
The duty of care at the time of the accident is essential in determining liability. Also, the above is just guidance on the subject matter and an analysis of the jurisdictions case law is vitally important. Once the duty of care is established, a premises liability lawyer can move forward with a lawsuit and seek compensation for any injuries. If you have questions concerning a premises liability lawsuit a Miami premises liability attorney is here to help.
It’s important to note that in Florida, certain types of trespassers are afforded a stronger duty of care under certain circumstances. When a property contains an attractive nuisance that would likely attract and harm children, the owner must take stronger precautions to protect them if they enter the property – even without permission.
Due to its warm weather, swimming pools are the predominant attractive nuisance covered under Florida’s attractive nuisance doctrine. Even though premises liability provides limited protections to trespassers, Florida’s Residential Swimming Pool Safety Act [1], Florida Statutes §515, will protect a certain class of trespassers when a hazard on the property attracts a vulnerable group such as children.
In a premises liability lawsuit concerning a swimming pool in Miami, the Residential Pool Safety Act is the predominant law that would apply. The act aims to protect young children from drowning even when a defense lawyer would argue that the child was a trespasser, and therefore assumed the risks associated with the swimming pool.
While Miami property owners merely need to protect a trespasser from wanton and willful conduct under premises liability law, the Residential Swimming Pool Safety Act requires a property owner to take additional precautions to protect trespassers from attractive nuisances. Failing to take these additional precautions would leave them open to liability and thus responsible for any injuries that result.
The essential precautions required under the act include:
Isolating the pool from home access by a pool barrier, §515.27(1)(a) Covering the pool with an approved safety pool cover, §515.27(1)(b) Furnishing an exit alarm on all doors and windows with direct access, §515.27(1)(c) Providing self-closing and self-latching devices on all doors with direct access, §515.27(1)(d) Providing an alarm that detects entrance into the water, §515.27(1)(e)If a pool owner fails to equip their pool with at least one of the precautions listed, they may be subject to a misdemeanor.
An attractive nuisance is a very specific aspect of premises liability law, and therefore requires a lawyer with an understanding of the intricacies involved in premises liability litigation. If you were involved in an accident, and even if you failed to get permission to be on the property, you may still be entitled to compensation for your injuries. Contact a premises liability lawyer in Miami as soon as possible to evaluate the circumstances of your case.
Premises liability is classified as a personal injury lawsuit for negligence. Negligence is a defendant’s failure to use reasonable care in a situation that calls for it. In Florida, someone is found to be negligent when a plaintiff’s lawyer successfully argues that the following four elements existed at the time of the accident:
The defendant owed some sort of duty to the plaintiff The defendant breached that duty in some way The defendant was the cause of the harm to the plaintiff The defendant did indeed suffer some kind of harmIn a premises liability lawsuit, the elements of negligence will depend on the circumstance of the accident. For example, the duty owed to a plaintiff may include ensuring that the property was free of any known hazards. Failing to remove these hazards may be considered a breach of that duty, and the defendant was the direct cause of an injury of some kind.
Florida is also one of several states that will reduce an award in a successful lawsuit by any amount the plaintiff contributed to their injury. This is called comparative negligence, and under Florida Statutes, §761.81(2), “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault”.
Luckily, contributing to an accident does not automatically bar recovery, but may reduce the overall amount of compensation entitled under a successful claim made by the plaintiff’s lawyer. The amount recoverable will vary after the court enters “judgment against each party liable on the basis of such party’s percentage of fault”. Florida Statute, §761.81(3)
When it comes to proving the elements of negligence in a Miami premises liability case, it is important to find a premises liability lawyer with the expertise needed to be successful in a lawsuit. Schlacter Law has the experience needed to ensure that you get the most compensation available under the facts of your case.
Following an accident on someone’s property, it may be necessary to seek medical attention and incur other expenses related to the accident. These types of costs may be recoverable in a successful lawsuit and these known costs are called economic damages. Economic damages might include:
Medical bills Long term medical attention Loss of income Lost wages Damage to property Transportation costsEconomic damages are typically based on known costs and are easiest to calculate. It is imperative to keep any records of the costs associated with an accident if you hope to succeed in receiving compensation for them. A premises liability attorney will use your bills and any other records as proof of the actual costs incurred as a result of the accident. Using these amounts as a starting point, a lawyer can more easily anticipate the total amount of compensation required to make a plaintiff whole.
Non-economic damages are the second type of compensation available under a premises liability lawsuit. Non-economic damages are harder to calculate than economic damages. These types of damages are not easy to put a dollar value on, and some non-economic damages require long-term attention, making it more difficult to anticipate the costs over time. Some non-economic damages might include:
Loss of enjoyment of life Permanent scarring Disfigurement Pain and suffering Emotional distressDue to the difficulty in calculating non-economic damages, a lawyer may typically take the known economic damages and estimate that non-economic damages would be a figure three to five times higher than that number. However, there are of course instances where non-economic damages may be higher. Consulting a premises liability lawyer is essential before determining the total amount required for compensation.
A final form of compensation is called punitive damages. Unlike economic and non-economic damages, punitive damages are used as a way to punish a defendant for their actions. Typically, punitive damages would be considered in cases where a defendant’s wrongdoing was so egregious that an added award for the plaintiff would deter future wrongdoing.
Damage awards can vary greatly depending on the severity of an injury and how much long-term attention is required. Further, damage awards can depend on the defenses involved. Some of the more common defenses to a premises liability case are:
Comparative Fault Open and Obvious Hazard Assumption of Risk No notice of the hazardConsulting a Miami premises liability lawyer is the first step in determining the extent of your injuries and the costs associated with them. Talk with a premises liability lawyer today to make sure you receive as much compensation as possible.
References
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html ↩
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