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03/27/14 It's the Law: Business Does Not Guarantee Safety for a Visitor

It's The Law

Business Does Not Guarantee Safety for a Visitor

(03/27/14)

Question:

I was on my way into a local store when I tripped over a tree root. I broke my hip and I have been out of work for three months. Store owner and his insurance company claim they have no liability. Can that be right?

Answer:

Duties owed by a property owner or occupant to a visitor depend on the status of the visitor. In order of level of duties owed, visitors are classified as invitees, licensees or trespassers. A property owner owes almost no duty to a trespasser other than to avoid willful and wanton injury. If the property owner is aware of the trespasser, an additional duty to warn of any unknown dangerous condition which would not be readily seen by the trespasser is imposed. A trespasser is someone on the property of another without permission.

Licensees are divided into two categories, invited and uninvited. A property owner owes an uninvited licensee about the same duty as to a trespasser. An uninvited licensee is someone who enters another's property for his own convenience, without an express or implied invitation. An invited licensee has an express or implied invitation and includes such people as firemen, policemen or building inspectors. They are on premises of the business with implied consent of the owner to provide services. To the invited licensee, an owner or occupant of property has a duty to refrain from wanton negligence or willful misconduct which will injure the licensee and to avoid intentionally exposing a licensee to danger. The licensee must also be warned of any defect or danger which would not be readily observable.

Invitees of a business are those who are on site with the express or implied invitation of the business owner. Since they are on site by invitation, they are owed higher duty than others. That duty includes use of ordinary or reasonable care to keep the premises safe and to warn of dangers that are known or should be known to the business owner of which the invitee is unaware and would not discover through the exercise of reasonable care. That means a business owner must undertake reasonable investigation and monitoring to discover any dangerous condition and take steps to eliminate it to protect invitees. That duty extends to places where it should expect invitees as well as places where an invitee would be allowed to go. Higher duty owed to invitees is not absolute. The invitee must also exercise reasonable care to protect himself.

Florida has adopted a concept known as comparative negligence. Under comparative negligence, when there is an injury caused by negligence, responsibility for the injury is apportioned between the parties based upon their respective negligence. The higher the degree of negligence by the injured party the lower the liability of the property owner.

Although the duty to an invitee is elevated, it is not absolute. Your case may be a good example, as it is parallel to the recent appellate decision of Wolf v. Sam's East, Inc. In that case, Mr. Wolf was visiting a Sam's Club. He parked his car in the Sam's Club parking lot. The parking lot had landscaped areas with dirt, trees, grass and mulch, which were traversed by concrete walkways. Wolf exited his car, walked toward Sam's Club on the landscaped area and tripped over tree roots.

Sam's Club admitted that two others had been injured tripping over tree roots in crossing landscaped areas in the three years before Wolf's accident. Wolf claimed Sam's Club owed him a duty to maintain safe premises and alleged failure to warn him of the latent danger posed by the tree roots.

The court noted Sam's Club had provided safe paved walking areas, but that Wolf elected not to use them. It confirmed that the business owner had no liability for falls which occur when an invitee walks on surfaces not designed for walking. The court also ruled that the tree roots in the landscaped areas were "so obvious and not inherently dangerous" as to constitute a non-dangerous condition as a matter of law.

Wolf could have easily and safely crossed the landscaped area using a concrete walkway, but chose not to use it. The court concluded that anyone walking on a landscaped area containing trees, grass and mulch is held to know that the landscaped area is a hazard to walking, particularly when there are sidewalks available. The court ruled Sam's Club had no duty to make the landscaped areas safe for pedestrians.

Claims for damages resulting from tripping over something in a business property almost always involve issues of comparative negligence. As the Wolf case demonstrates, they can also result in determination that no duty to the invitee was breached. These cases are fact intensive and you are well advised to discuss the facts of your particular case with an experienced attorney before proceeding to settlement or suit.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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