In Florida, premises liability law places a duty upon property owners to keep visitors, clients, customers, and sometimes even the uninvited guest or trespasser safe from harm while on their property. This is true both for residential real estate owners as well as commercial establishments.
This duty requires an owner to take reasonable steps to make sure no one gets hurt while on the premises. However, what the law considers as “reasonable” changes based upon the age of the accident victim.
Since children are presumed not to have the ability to make clear choices and “adult” decisions, Florida law imposes a greater duty of care upon property owners to protect children from harm.
Why Are Children Treated Differently Under Florida’s Premises Liability Law?
According to the Florida Supreme Court’s ruling in Burdine’s, Inc. v. McConnell, 146 Fla. 512, 1 So. 2d 462 (1941), it is because of the lack of comprehension of danger by children that merchants have a greater degree of care to children in the maintenance of his place of business.
Furthermore, related cases have ruled that adults who allow kids onto their land must exercise a higher degree of care for their safety because the kids haven’t arrived at their “age of discretion.”
What Should A Property Owner Do To Keep the Premises Safe for Children?
Property owners in Florida must act with a degree of care that is appropriate to the circumstances of their particular situation. For example, a child that is five years old must be considered differently than a twelve year old tween. See, Burdine’s.
For business owners, this means that they must monitor and maintain the entirety of their business establishment (from store aisles to restaurant booths to parking lots) with a greater degree of care if their clientele or customers will include children.
Home owners must consider the age of their minor guests, too. For residential owners, their duty to keep their home safe for children means that they must insure the house, the driveway, and the yards are reasonably safe for the kids. Home owners do not have to keep everything 100% “danger-proof,” but they must take reasonable steps to make sure that children are safe on their property.
Read: What Type Of Legal Duty Does A Florida Property Owner Have For Injuries To Visitors?
How Do You Prove A Premises Liability Claim?
A child victim, through their parent or guardian, must prove the owner or the occupant of the premises was negligent. This is done by showing how a dangerous condition on the defendant’s premises lead to the child’s injuries.
The parent or guardian must provide evidence that establishes:
(1) the defendant’s actual knowledge of a dangerous condition or
(2) evidence from which a reasonable inference can be made that the defendant had constructive knowledge of the dangerous condition.
However, just like with other personal injury claims, there are issues that must be evaluated when determining if a child victim premises liability exists, including issues related to owners and occupants, foreseeability, attractive nuisances, and open and obvious dangers — all of which are discussed below.
Owners versus Occupants
Often, the property owner has leased or rented the premises to another party (the “tenant” or “lessee”). This may be true of residential property as well as commercial establishments. In most lease agreements, the property owner has language that shifts, or at least tries to shift, responsibility for premises liability issues to the occupant. Which means, if there is an accident involving a child on the premises, the tenant/lessee cannot shield itself from liability by claiming since it doesn’t own the property it is not liable for the victim’s damages.
As a general rule, liability is determined by looking at the party with the duty at the time of the accident, and that isn’t always the party who has legal title to the land. The accident victim may ultimately find that the party who is in actual possession or control of the premises at the time of the accident is the party that will be required to compensate the victim for his or her damages.
In many instances, a residential tenant or a new fast food franchisee, assumes the duty to “use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.” However, liability is not automatic. The victim still must prove “that the dangerous condition existed for a sufficient length of time so that the defendant should have known of it.” See – Haynes v. Lloyd, 533 So. 2d 944 (Fla. Dist. Ct. App. 1988).
Foreseeability
In Florida, owners (or occupants) are not liable for the accident damages unless the plaintiff can prove with admissible evidence the element of “foreseeability.”
Here, the child victim must show that it was foreseeable that a child could be injured in some way on the property and also show that the property owner or business owner had a duty to warn of a dangerous condition. However, the evidence does not have to necessarily show that the particular accident was foreseeable. It is sufficient to show that there was a dangerous condition and that it was foreseeable that some kind of harm could result from that danger.
The Case of the Deadly Shrub
For instance, in the case of Mazyck v. Caribbean Lawn, Inc., 587 So. 2d 573 (Fla. 3d DCA 1991), little Jamone Williams died while playing hide-and-seek at a public housing project. Jamone and his pals were playing in an area known to be where children liked to play. Sadly, as Jamone was trying to climb up into an umbrella tree to hide, he fell and was impaled on a “spear-like” protrusion in a shrub beneath the umbrella tree.
This area was maintained by a lawn maintenance company, Caribbean Lawn, under contract with Metropolitan Dade County. The county agreement was for the lawn company to service the housing project grounds “to provide maximum safety to the public.”
The bereaved parents sued this lawn service company, arguing that the shrub’s “spear-like” protrusion was cut back and not in its natural state, and that this was known to the company because not too long before Jamone’s tragic death, a neighbor had shown the protrusion to a Caribbean Lawn employee and complained that it was dangerous. However, when the neighbor asked the employee to cut down this “spear-like” protrusion, he refused.
The defendant argued that the accident was not foreseeable, and therefore Caribbean Lawn was not liable for the child’s death.
The Florida court ruled that “… the exact manner in which this accident happened might not have been foreseeable, but that is not required in order to impose liability on the defendant so long as it was foreseeable that a child might be injured in some way by the “spear-like” protrusion while playing in the area.”
The court held that there was evidence provided by the child’s parents that Caribbean Lawn was on actual notice of a non-natural, dangerous condition which foreseeably led to the death of the boy.
Open and Obvious Danger
Under Florida law, some conditions are so blatantly dangerous that they are considered “open and obvious” dangers. Owners (and occupants) with these kinds of dangers on their land are presumed to know that there is danger on their property and are required to take steps to safeguard people from harm.
However, if a young child (infant, toddler, pre-K) is injured or killed by an open and obvious danger, that owner is not automatically held liable for that accident. Parents and caretakers have the primary legal duty of care for very young children.
If there is an accident involving an open and obvious danger, it is not enough that the child was so young that they couldn’t comprehend the obvious risk involved. In these cases, the accident victim’s case must go further to demonstrate the owner’s failure to keep their premises safe in order for liability to be imposed upon the owner or occupant.
The Case of the Intellectually Challenged 6 Year Old Who Drowned in the Neighborhood Artificial Lake
Consider the tragic case of little David Askew. When he was six years old, David was outside in the front yard of his home with his dad. David had to be supervised at all times by an adult, because he suffered brain damage at birth and dealt with myoclonic seizure disorder and psychomotor retardation. As his father washed the family cars, David meandered off and somehow reached the artificial lake that was part of the landscape of their Saga Bay residential development.
The lake shore near David’s house was undeveloped. It had no fences, no warning signs, and no landscaping or trimmed shrubbery. Sadly, David drowned in this part of the lake.
His grief-stricken parents sued the owners of that artificial lake for David’s untimely death. However, they did not provide any evidence that the owner violated any duty of care for this “open and obvious” danger. The parents were considered to have primary responsibility for the care of their child. There was no evidence provided of an unusual danger not generally existing in similar bodies of water, or that the lake contained a dangerous condition constituting a trap.
The Florida courts held that the “… owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers. To shift the responsibility to the lake owner — by virtue of ownership alone — is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable.” Saga Bay Property Owners Ass’n v. Askew, 513 So. 2d 691, 693 (Fla. Dist. Ct. App. 1987).
Florida’s Attractive Nuisance Doctrine
Under the Florida Attractive Nuisance Doctrine, a business owner or property owner will be responsible to a young injury victim if there was something on the premises that could be tempting or attractive to the curiosity of the child. In this situation, the business owner or property owner has a duty to exercise reasonable care to protect the child against dangers of such attraction.
For more on the Florida Attractive Nuisance Doctrine, read: What Happens When Someone Is Injured at a Business or Commercial Location?
What Kind Of Compensation Can A Child Victim Recover?
A child victim may recover basic personal injury compensation including:
- Pain and suffering
- Scarring or disfigurement
- Loss of capacity for the enjoyment of life
Additionally, if a child is totally disabled, then the parents may be able to collect a loss of companionship. Also, parents or legal guardians may be able to recover their medical expenses for the child, until such time the child reaches maturity. A child victim may even recover compensation for lost wages (if the child was working at the time) and/or future wages if he or she suffers a permanent injury that prohibits them from working as he or she ages.
Florida Injury Lawyer Can Help With Your Child’s Accident Claim
If your child has been seriously injured or killed in an accident, then the owner and occupant of the property where the accident occurred may be legally liable for damages.
Their parents or legal guardians must act on their behalf, as children cannot file lawsuits for themselves. So, as the legal representative of the minor child, the parents or guardians can investigate the incident, hire an attorney, make a claim and demand, and file a lawsuit in order for the minor accident victim to get justice.
Premises liability claims will need specific investigation in order to determine the scenario at the time of the injuries and the actual or constructive knowledge of the owner or occupant. There will be special statute of limitations concerns when the accident victim is underage, as well.
A good piece of advice if your child has been seriously injured or killed due to the negligence of a third party, 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.
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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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