Posted By Alan Sackrin on June 25, 2015
Last Update: 09/29/16
Here in South Florida, parking lots are something most of us take for granted. We drive to Publix or Winn Dixie for groceries and we park our cars in a parking lot. We go to the movies, and we park in a parking lot. We take the kids to see the Miami Heat, and we park our SUV in a parking lot. Most of us don’t think about it, it’s just part of our everyday life.
However, parking lots can sometimes be a dangerous place where people can suffer serious injuries with long-term consequences. Often times, victims have to deal with pain and suffering, lost wages from being off work and physical therapy for months after an accident as they recover the use of a shoulder, ankle, wrist, or hand.
When someone gets hurt in a parking lot, the question is whether or not the owner or operator of that parking lot was negligent and did that negligence lead to the victim’s injuries. Trash, cracks in the pavement, cracks in the concrete, curbs, speed bumps, broken wheel stops, unpainted surfaces, slippery surfaces from rain, or concrete barriers are all causes of parking lot slip and fall accidents.
In Florida, before the owner or operator of the Florida parking lot can be held liable for a victim’s injuries and have to reimburse him or her for their medical expenses, the injury victim has to support their claim by providing admissible evidence of negligence. Florida law places the “burden of proof” for slip and fall accidents upon the person who got hurt — they have to demonstrate a right to damages before they can get compensated for their losses.
What Proof Do You Need For Your Parking Lot Accident Claim?
In a parking lot injury case, a victim should gather facts from witnesses, request copies of any video surveillance, request a copy of any incident report, obtain a copy of any paramedic or medical provider report(s), as well as requesting documents about past similar accidents in that parking lot in order to prove a claim and show the owner was negligent (if the owner does not want to provide this information after receiving a formal request, a lawyer can ask the Judge for an Order compelling the owner to provide this information).
The formal legal process of “discovery” may be needed in order for the victim to be able to meet the evidence burden for a slip and fall as set forth in Florida Statute 768.0755.
Additionally, a victim will likely need to show how the owner had a duty of care to the victim and provide evidence that the owner knew, or should have known, about the dangerous condition that caused the victim to fall.
What is the Duty of Care?
The owner of the parking lot has the following two duties to its business invitees:
(1) to maintain the premises in a reasonably safe condition;
(2) to give warning of concealed perils.
If, for example, there is a crack in the parking lot asphalt from the scorching heat of the Florida sun, or there is a slippery sidewalk surface from a recent rain, then the parking lot owner has a duty of care to the people using its parking lot to protect them from these dangers.
Knowledge of the Parking Lot Owner?
However, this duty of care is limited to the actual or constructive knowledge of the owner that the danger exists. Legally, the burden of proof of the owner’s knowledge is placed upon the injury victim — not the owner — under Florida premises liability law. Florida Statutes 768.0755 states:
(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
This means that the injury victim must show the actual or constructive knowledge of the parking lot owner or operator regarding the dangerous condition before damages can be assessed against them.
Is this hard for an accident victim to do?
Parking lot owners will aggressively challenge the victim’s claim based upon arguments like the one successfully made by a Tires Plus store in Dampier v. Morgan Tire & Auto, LLC, where a business invitee fell over a tree stump as he walked across a planting bed next to the store’s parking lot. There, the injured person failed to prove his case because the court held that “… some conditions are so obvious and not inherently dangerous that they can be said, as a matter of law, not to constitute a dangerous condition, and will not give rise to liability due to the failure to maintain the premises in a reasonably safe condition.”
However, parking lot fall victims can succeed in these claims. Consider the case of Cook v. Bay Area Renaissance Festival Of Largo, Inc., where Cynthia Cook went to a local festival and was directed by festival volunteers to park in an overflow parking lot, where an unpaved walkway connected the festival grounds and the lot. On her way back to her car after enjoying her day, Mrs. Cook tripped and fell on an exposed pipe on the unpaved walkway, cutting her foot.
The pipe was in plain view and Cook had been told to watch out for the pipe by her husband. She sued and the court ruled for her, explaining that even if the pipe was easily seen by the accident victim, the defendant could still be liable for failing “to exercise reasonable care to prevent foreseeable injury” to invitees because as the owner, it was also in its plain view and the defendant would know that harm could result from the open and obvious danger.
How Do Slip and Fall Lawyers Add Value?
Most parking lots are open areas with high visibility with a lot of lighting and they are well maintained. When someone is hurt in a fall on a Florida parking lot, you can expect a vigorous defense by the owner of the parking lot claiming that the injured party is to blame for the accident. Having an experienced premises liability lawyer to help build a case in order to get the victim the compensation he or she deserves, someone who has the authority to gather and request sufficient admissible evidence (and knowing which experts to hire — lighting and traffic pattern experts — and knowing what type of economic and non-economic damages to seek, and knowing how the insurance company typically responds to an injury claim, etc.) to combat the owner’s position, can be the difference between winning and losing a case. Slip and fall cases are not the easiest cases to win, but this does not mean that justice should not prevail.
What Should You Do Now?
A good piece of advice if you have been harmed in a parking lot slip and fall, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.