Last Update: 2/4/19
Florida Premises Liability Law – Invitee, Licensee, & Trespasser Distinctions
In Florida, the body of statutory law and court cases which creates legal liability for a property owner, liability which stems from the duties that a property owner owes to certain persons who have been hurt in an accident with serious injury or even death, is known as Florida’s Premises Liability law.
This law allows a victim of a slip and fall, including those occurring at grocery stores, hotel pools, hospitals, or any other business or commercial location, to require the owner of the premises (or to the person or entity in control of the premises) to compensate the victim for his or her injuries (including pain and suffering, past and future lost wages, medical expenses, emotional damages and other economic and non-economic damages).
Quick Tip: The Average Slip And Fall Settlement (non-grocery) Is $30,000.00 (Details)
The most common type of premises liability case brought against businesses are “slip and fall” and “trip and fall” accidents. Common dangers that have resulted in business accident cases include:
- Dark spaces because of inadequate lighting
- Wet floors because of splashed or spilled water
- Dropped items on floors and walkways causing obstructions
- Broken handrails on stairs or ramps
- Improperly stacked or displayed merchandise on store shelves
- Slippery conditions on floors or walkways.
However, owners and persons in control of business establishments are not always subject to the same level of liability under Florida premises liability law. Under Florida law, how much the owner will be required to compensate a victim for his or her damages will depend upon how the victim is legally classified in relation to their status on the property.
Trespassers upon Florida land do not have the same level of civil liability protection under Florida premises liability law as do those injury victims that are personally invited upon the property by the owner, i.e., “Invitees.” (A third category exists, which falls in between the maximum legal protection given to Invitees and the minimum protection given to Trespassers, otherwise known as “Licensees.”)
Thus, in order to determine whether or not the victim has a viable claim for damages against the property owner, and, if so, the amount of liability the owner has to the victim, depends, in part, upon the reason why the victim was on the premises at that time he or she was injured; what was the victim’s status — an “Invitee,” “Licensee,” or “Trespasser?”
In Florida, trespassers are those people who aren’t supposed to be on the property at the time that they are hurt. A Trespasser is someone “… who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.” Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972).
Also, when a person has the right to enter property and he or she allows a third person to enter the property each party becomes a trespasser. See: Satin v. Hialeah Race Course, Inc., 65 So. 2d 475 (Fla. 1953)
Florida Supreme Court defined Licensees in the case of Stewart v. Texas Co., 67 So. 2d 653, 654 (Fla. 1953):
Mere licensees are about the least favored in law of men who are not actual wrongdoers. It has been stated that an owner or occupant owes one whom he permits to enter for the latter’s convenience no duty except not to harm him willfully or wantonly, or to set traps for him, or to expose him to danger recklessly or wantonly. . . . No duty is imposed by law on an owner or occupant to keep the premises in a safe condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come thereon, although their entry is permitted by the owner or occupant. Active vigilance is not required on the part of the property owner to see that his premises are kept safe for the benefit of licensees . . . .
Florida injury victims invited to enter the property by the owner can be either “public invitees” or “business invitees.” As Invitees, visitors are granted the most legal protection under Florida premises liability law for injuries they sustain while on the site. As explained in Post v. Lunney, 261 So. 2d 146 (Fla. 1972):
- A Public Invitee is “… 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.”
- A Business Invitee is “… a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”
Under Florida Premises Liability Law Is The Owner’s Duty Different for An Invitee, Licensee, or Trespasser?
A property owner has the highest duty of protection and care to those he or she invites upon the property for either personal or business reasons.
Under Florida’s premises liability law, a property owner owes two duties to an invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition, and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. See, Knight v. Waltman, 774 So.2d (Fla. 2007).
Contrarily, those who enter a property without invitation as either a licensee or trespasser are not given much protection under Florida law. In fact, Trespassers receive little, if any, protection under Florida premises liability law. However, there are some exceptions (besides the attractive nuisance doctrine, see below): For example, Trespassers can be awarded civil damages for harm sustained by traps intentionally set by the property owner.
What Is The Attractive Nuisance Doctrine?
The attractive nuisance doctrine is a body of law established by both Florida statutes and Florida court opinions. Under this doctrine, when the injury victim is a child there are special legal duties that apply to a Florida property owner which allow a minor child Trespasser to hold the property owner responsible for his or her injuries.
Under the Florida Attractive Nuisance Doctrine, liability is imposed upon the property owner if there was something on the property that could be seen as attracting or enticing to a child’s curiosity. Things like swimming pools and hot tubs are obvious “attractive nuisances” in Florida. Others might include an empty refrigerator or other air-tight appliance that has not had its doors removed. See, Cockerham v. Vaughan, 82 So.2d 890 (Fla. 1955); Florida Statute 823.08.
Victims of Crime in Commercial Areas or Business Establishment
Under Florida law, a business generally has no duty to ensure the safety of a visitor or their guests against injuries sustained during the commission of a crime. There is liability for a business to protect against criminal conduct if that business could reasonably foresee that a crime could happen on the business premises. In Florida, the business is held to have a duty to protect its invitees.
For example, when a Miami shopper was taken from a parking garage at The Mall at 163rd Street to a remote location and then raped and robbed, that shopper had a premises liability claim against both the store (Burdine’s) and the shopping mall’s parking garage owner (Equity). She won at trial against both defendants after providing evidence that there had been prior crimes at the mall’s location, making her rape and robbery “reasonably foreseeable.” On appeal, Burdine’s argued successfully against Equity that Equity should be 100% responsible for the damages because the parking garage operators had the duty to keep the garage safe, not the department store.
What Types of Damages Can A Slip and Fall Victim Receive?
If you suffered from a slip and fall injury as a result of a Florida business or property owner’s negligence you may be entitled to receive compensation for your damages. Some of these damages may include:
- Lost wages
- Medical bills
- Costs for future medical care
- Loss of future earnings
Quick Tip: The Average Grocery Store Slip And Fall Settlement Is $35,000.00 (Details)
What Does A Victim Have To Prove To Get Compensation For Their Premises Liability Claim?
When you are hurt on business property (except a slip and fall caused by a foreign substance on the floor – see next section), then you have to show that the business failed to keep you safe while you were there. Generally, in order to prove fault, you have to show evidence that:
- The business (store, hotel, shop, theater, etc.) knew or should have known of the danger;
- They failed to repair;
- They failed to give warning;
- You were hurt because of the danger; and
- You were exercising reasonable care for yourself at the time of the accident.
Business Invitee Slip and Fall Accidents: New Law Increases Their Burden of Proof
After complaints from business defendants that they were being held responsible for having to pay for too many slip and fall injury claims, the Florida Legislature passed Florida Statute 768.0755. This law makes it easier for businesses in premises liability cases to defend against liability and harder for business invitees to establish their right to damages and prove fault.
Florida Statute 768.0755 states as follows:
Premises liability for transitory foreign substances in a business establishment.—
(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.
What does this mean? Now, the business invitee — not the business owner — must carry the burden of providing evidence through witness testimony or documents that the business had actual or constructive knowledge of the dangerous condition.
What Types Of Dangerous Conditions Can Lead To A Florida Premises Liability Claim?
Under Florida law, a public invitee can assert a personal injury claim against a business owner based upon the failure to maintain the commercial premises in a safe and reasonable manner. However, a victim will need to provide proof of a dangerous condition and proof that the owner and operator knew or should have known about the condition which caused victim’s injuries. In some instances, liability exists even if the dangerous condition is a one-time occurrence. See, Springtree Properties, Inc. v. Hammond, 692 So. 2d 164 (Fla. 1997).
What is interesting here is that an owner’s liability for dangerous conditions not only exists inside the premises and outside on the property, but it also exists beyond the property line and on any part of the exterior which is under the possession, custody, or control of the business or commercial enterprise.
Here are some common property locations and conditions where invitees have been hurt and have been able to hold a property owner liable for their injuries:
A. Dangers Outside the Business Establishment
1. Walkways: Sidewalks and Curbs
When an invitee slips and falls or trips and falls because of an uneven sidewalk, or a sidewalk that is broken and cracked, owners may be held liable for the victim’s injuries.
For example, in McKenzie v. City of Miami, 648 So. 2d 290 (Fla. 3d DCA 1995) there was a sidewalk crack in front of the Coconut Grove health clinic that had been there for many years. Everyone who worked there knew about the condition, which was never repaired. It was not surprising to anyone working at the clinic that one day a patient left the clinic and got hurt from tripping over the crack.
The patient pursued a personal injury claim and, of course, the clinic was held responsible for the patient’s injuries because the crack in the sidewalk was a known dangerous condition that the clinic negligently failed to repair.
Notwithstanding this case, there are limits to the owner’s liability for sidewalk and walkway conditions. If a condition is considered an “open and obvious danger,” then the owner will likely escape liability.
If, for example, there is a large gap between how high the concrete sits in a street curb as compared to the street surface, then if someone trips and falls over that curb, it is unlikely the adjacent business owner will be required to compensate the victim. The disparity in height is considered an open and obvious danger. See, Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990).
2. Customer Parking
A customer parking lot can be an example of where a business owner is held liable for a dangerous condition on property that he or she may not own. If customers or clients are invited to use a convenient parking lot, then the business owner may be liable for injuries they sustain on that lot even if it is not technically within the business’ property line. See, Gutierrez v. Dade County School Bd., 604 So. 2d 852, 77 Ed. Law Rep. 1052 (Fla. 3d DCA 1992).
Another example is where a popular Florida nightclub enjoys standing room only business each weekend but their building doesn’t have enough parking spaces or slots for everyone visiting the location. Many of the nightclub’s invitees may choose to park at adjacent parking lots. If the club owners are aware that these neighboring parking lots (as well as any other driveways) are being used by their patrons, their vehicles may be considered to have entered in to the “foreseeable zone of risk” for the club owners. See, Borda v. East Coast Entertainment, Inc., 950 So. 2d 488 (Fla. 4th DCA 2007).
3. Shrubs, Foliage, and Landscaping
Florida’s weather invites businesses to adorn their property with all sorts of natural décor. Things like trees, shrubs, and other foliage are important landscaping for many establishments here.
As a general rule, shrubs, trees, bushes, foliage, and natural landscaping décor will not rise to the legal characteristic of a “dangerous condition” that will support a premises liability claim.
In order for natural landscaping to do so, it must present an unreasonable risk or danger to a business invitee. See, Regency Lake Apartments Associates, Ltd. v. French, 590 So. 2d 970 (Fla. 1st DCA 1991).
One example where landscaping can result in a premises liability claim is where the landscaping blocks the view of motorists. If the business owner allows the property’s natural greenery to grow so much that it blocks the view of motorists, then he may have created a “foreseeable zone of risk” in doing so. See, Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001).
4. Pools, Ponds, Fountains (Body of Water)
South Florida businesses can have different types of water features as part of their business establishment. They come in all shapes and sizes and they can be both natural and artificial. Shopping malls may have fountains. Hotels may have swimming pools. Resorts may offer oceanfront access. Golf courses often have scenic artificial lakes.
Of course, any body of water can pose a threat to business invitees as well as trespassers. However, Florida law will not automatically hold a business owner liable for injuries sustained in a body of water. Liability will depend on the facts and status of the injured party. See, Kaweblum ex rel. Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 801 So. 2d 1015 (Fla. 4th DCA 2001).
Generally speaking, in order for there to be a premises liability claim due to a body of water, the land owner or business owner has to be willfully negligent. See, Bishop v. First Nat. Bank of Florida, Inc., 609 So. 2d 722 (Fla. 5th DCA 1992).
For instance, a trespasser who dives into the ocean, at a familiar location, and is injured because the water was not deep enough will not be able to maintain a premise liability claim because his or her own negligence was the sole cause of the injury. The hotel had no duty to this type of victim because the victim used the pier for his “own convenience and without authority.” It was the victim’s negligence that caused the injury, not the hotel. However, where there are no posted signs or other warnings, there is likely liability even if a pier is not designed for diving purposes or the property owner did not invite guests to use it for diving purposes. See, Seitz v. Surfside, Inc., 517 So. 2d 49 (Fla. 3d DCA 1987); First Arlington Inv. Corp. v. McGuire, 311 So. 2d 146 (Fla. 2d DCA 1975).
B. Dangers Inside the Business Establishment
Doors are not considered a dangerous condition. It’s only when doors fail to work properly that they may become a dangerous condition and the basis of a premises liability claim. See, Tower v. Jefferson Stores, Inc., 383 So. 2d 689 (Fla. 4th DCA 1980); McCallum v. Brodsky, 158 So. 2d 589 (Fla. 2d DCA 1963).
However, some door malfunctions can be so unusual that the condition was not foreseeable. If a business owner could not have reasonably foreseen that a malfunction would occur then no liability will be found. See, Laks v. X-Tra Super Food Centers, Inc., 654 So. 2d 578 (Fla. 3d DCA 1995).
Windows can be the cause of serious injuries, as the broken glass can cause severe cuts and lacerations. In window accidents, the accident victim must be able to prove that the owner or operator was aware of a defect in the window or that the owner had received some kind of notice that there was a problem with the window before the accident occurred and failed to make repairs. See, Lich v. N.C.J. Inv. Co., 728 So. 2d 1191 (Fla. 2d DCA 1999).
In one case, a victim was able to show a business owner was aware of a dangerous condition based solely on what should have been the owner’s common knowledge. See, Welch v. Auto Owners Ins. Co., 369 So. 2d 449 (Fla. 1st DCA 1979).
3. Aisles and Passageways
Victims have successfully recovered damages after being hurt due to a stores failure to keep their aisles free from all sorts of dangers, including:
- Tripping over an object in a walkway (like metal from a clothes rack)
- Poorly stacked products dropping from overhead;
- Foreign substances on the floor like grapes, spilled milk or broken glass.
Store owners have a duty to keep store aisles free of dangers. For example, grocery store employees should be going up and down the aisles of the grocery store on a regular basis — like every 30 minutes or so — to make sure the premises are safe from fallen objects.
4. Ceilings And Fans
Having knowledge or notice of a dangerous condition doesn’t apply to all premises liability claims. If a claim is based upon negligent installation, then a victim doesn’t have to prove the property owner had actual knowledge of a dangerous condition. See, Riles v. Robinson, 548 So. 2d 295 (Fla. 4th DCA 1989).
5. Floor Conditions or Hazards
The most common premises liability cases in Florida are based upon slip and falls or trip and falls due to problems with the floors of a commercial establishment. Often, these cases are the result of failures in the duty of care, where the floor has not been properly maintained or cleaned in a timely manner (See, e.g., Colon v. Outback Steakhouse of Florida, Inc., 721 So. 2d 769 (Fla. 3d DCA 1998) where the owner or operator had actual or constructive knowledge of the dangerous condition, which is a higher burden of proof than invitees have to meet in other kinds of premises liability cases). These cases involve issues like the floor being slippery, warped or defectively installed. (Warping is a big concern for South Florida since we are so near to the ocean and its humidity).
6. Steps and Stairs
In Florida, building codes and construction laws set forth requirements for how steps are built as well as how stairs, stairwells, and staircases are constructed. There are regulations that apply to the width of each step, for instance. Staircases have to have handrails and stairwells should have adequate lighting. Failure to comply with these standards means the property owner likely acted in a negligent manner when it built the step or stair.
Here, a premises liability claim based upon a defective condition is likely to prevail. That’s because a violation of statute designed to protect the general public is evidence of negligence. See, Lindsey v. Bill Arflin Bonding Agency Inc., 645 So. 2d 565 (Fla. 1st DCA 1994).
Another common premises liability claim is where debris is left on a stair or in a stairwell. In these cases it doesn’t matter if the business owner is in full compliance with all applicable building codes and regulations. If the owner or operator failed to keep the stairway clear of any footfall hazards (trash, sand, loose carpet tiles, etc.), then the business can be held liable for a victim’s damages. However, if a tenant does not inform a landlord of a dangerous condition on a stairway, and the landlord had no knowledge of the condition, then the landlord may be able to escape liability. See, Siegel v. Deerwood Place Corp., 701 So. 2d 1190 (Fla. 3d DCA 1997).
What Should You Do?
A good piece of advice if you have been harmed by a dangerous property condition, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with a premises liability claim, 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.
How can I prove that the store owner knew about the dangerous conditions that led to my slip and fall accident?
- Slip/Trip And Falls In Florida – An In Depth Look
- Florida Hotel Negligence Claims
- What is Pain and Suffering under Florida Law?
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
If you found this information helpful, please share this article and bookmark it for your future reference.