Premises Liability

Published on: November 28, 2017

Plaintiff’s Slip-and-Fall Accident in Doctor’s Examination Room Deemed Not To Be “Medical Malpractice” Lawsuit

Earlier this month, an appellate court issued a written opinion in a Florida premises liability lawsuit that arose after the plaintiff fell off an examination table in the defendant doctor’s office. The court was tasked with determining if the plaintiff’s lawsuit should be dismissed because she failed to comply with the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s lawsuit was not a “medical malpractice” lawsuit as defined by the statute and that her claim need not comply with the stricter statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The plaintiff was seeing the defendant doctor so that he could remove a catheter. When the doctor came into the examination room, he instructed the plaintiff to climb onto the examination table. He then pulled out a stool so that she could more easily get atop the table. The plaintiff safely climbed onto the table, and the doctor performed the procedure without any complications.

After the procedure, the doctor told the plaintiff to go to the front desk and make a follow-up appointment the following week. The doctor then left the examination room without pulling out the stool to help the plaintiff descend off the table. The plaintiff attempted to get off the table but fell as she did so.

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Published on: October 9, 2017

Florida Residents Who Engage in Recreational Activities on Another Party’s Land May Do So at Their Own Risk (With a Few Notable Exceptions)

By Cecere Santana, PA

The Florida state government wants to encourage people to be active and to enjoy the beautiful Florida weather by rollerblading, skateboarding, mountain biking, or engaging in other recreational activities. However, the government seemed to notice that there were becoming fewer and fewer places to partake in these activities because landowners were prohibiting people from engaging in these recreational activities on their land, due to the liability they may face if someone is injured.

The Florida Legislature’s solution was to pass Florida Statute 316.0085, which provides immunity to certain landowners who open up their property for the public’s use. While there are other recreational use statutes in Florida, this particular statute pertains to rollerblading, skateboarding, mountain biking, and paintballing.

The statute provides broad immunity to government landowners, stating that no government entity or public employee can be held liable for injuries sustained by someone who is rollerblading, skateboarding, mountain biking, or paintballing on government property. At first glance, it would seem that anyone who is injured while engaging in any of those activities would not be able to seek compensation for their injuries; however, that is not necessarily the case.

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Published on: July 7, 2017

Florida Children Exposed to Toxic Gas at Indoor Pool

By Cecere Santana, PA

Premises liability claims are lawsuits brought against a property owner who negligently fails to keep their property in a safe condition, violating a duty of care owed to the plaintiff. Premises liability describes a broad range of cases, extending from slip-and-fall accidents to chemical exposure cases.

Chlorine Gas Exposure

According to the Centers for Disease Control and Prevention (CDC), chlorine is an element used in industrial settings, as well as household products such as bleach. It is often used in swimming pools to kill bacteria. Chlorine is sometimes in the form of a poisonous gas, which can be recognized by its pungent, irritating odor, similar to bleach. It is yellow-green in color. When chlorine gas is released into the air, a person can be exposed through skin contract or eye contact, or through breathing air that contains chlorine.

People who are exposed to high levels of chlorine can experience coughing, nausea, vomiting, difficulty breathing, blurred vision, blisters, fluid in the lungs, wheezing, watery eyes, and a burning sensation in the nose, throat, and eyes. Breathing in high concentrations of chlorine can lead to long-term complications, such as fluid in the lungs following the exposure.

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Published on: June 7, 2017

Florida Court Discusses and Limits “Assumption of the Risk” Doctrine

By Cecere Santana, PA

Last month, Florida’s Fifth District Court of Appeals issued a written opinion in a premises liability case brought by a man who tripped and fell on an unsecured cord while rehearsing with a church band. The court had to determine if the plaintiff’s potential knowledge of the hazard – having been playing with the band for several years – resulted in his expressly assuming any risk of injury. Ultimately, the court concluded that under Florida law, the doctrine of express assumption of the risk applies only in certain limited situations, one of which was not present in the plaintiff’s case.

The Facts of the Case

The plaintiff joined the defendant church in 2008. In the next year, he started playing in the church band. For the next two years, there were no issues; however, in 2011, the plaintiff tripped and fell on the bass guitarist’s electrical cord. The plaintiff filed a premises liability lawsuit against the church, claiming that the church was negligent in failing to maintain the premises in a reasonably safe condition.

The church argued that it should not be held liable because the plaintiff knew or should have known about the dangerous condition and assumed the risk of injury by performing on stage for the past two years. The trial court agreed, finding that the plaintiff expressly assumed any risk of injury, and dismissed the case.

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Published on: May 11, 2017

Florida Appellate Court Determines Water Company May Be Liable for Condition of Pavement Surrounding In-Ground Valve

By Cecere Santana, PA

Earlier this month, a Florida appellate court issued a written opinion in a premises liability case brought by a woman who tripped on a water valve while walking on a public road. The appeal resulted from a lower court decision finding that the water company did not have a duty to maintain the asphalt area around the valve, which had become separated from the valve, resulting in the valve sticking up above ground level. However, the appellate court reversed the lower court’s decision, holding that the water company may still have a duty to maintain the valve, even if the accident was caused in part by the surrounding asphalt becoming separated from the valve.

The Facts of the Case

The plaintiff was walking on a public road when she tripped and fell on a water valve cover that was protruding from the street’s surface. As a result of her fall, the plaintiff sustained injuries and filed a personal injury lawsuit against both the water company as well as the city that owned the road. The plaintiff argued that the water company had a duty to keep the valve in safe condition and to prevent it from becoming a hazard to pedestrians, such as herself.

At trial, evidence was presented that showed the valve had separated from the surrounding asphalt, causing the valve to protrude above ground level. After the accident, the water company leveled the asphalt around the valve so that further injuries would not occur.

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Published on: April 10, 2017

Florida Appellate Court Reverses Lower Court’s Decision, Allowing Premises Liability Case To Proceed to Trial

By Cecere Santana, PA

The Second District Court of Appeals recently issued a written opinion in a premises liability case, reversing a lower court’s ruling that had dismissed the plaintiff’s lawsuit based on a lack of evidence that the defendant knew or should have known about the hazard that allegedly caused the plaintiff’s fall. Specifically, the appellate court held that the lower court was improper to base its decision on the credibility of the plaintiff’s expert witness.

The Facts of the Case

The plaintiff slipped and fell after he stepped in a puddle of oil that had formed near an elevator on the defendant’s property. The plaintiff explained that he did not see the puddle before he stepped in it, but after he got up, he noticed that it was coming from underneath the door to the elevator service closet.

The plaintiff’s fall was reported, and the defendant called an elevator technician to fix the leak. The technician determined that the leak was due to a faulty seal and that the oil was dripping at the rate of one drip every two seconds. The technician noted that the puddle was approximately four feet by five feet, and about a quarter of an inch deep. The technician did not know how long the puddle had been there; however, the elevator had been serviced three days before, and there was no leak at that time.

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Published on: March 9, 2017

Florida Appellate Court Permits Plaintiff’s Slip-and-Fall Lawsuit to Proceed Despite Obviousness of the Hazard that Caused Plaintiff’s Fall

By Cecere Santana, PA

Earlier this month, a Florida appellate court issued a written opinion in a slip-and-fall case, reversing the lower court’s decision to grant the defendant’s motion for summary judgment. The case required the court determine if a plaintiff can still recover for injuries under a premises liability theory where the hazard that caused the plaintiff’s fall was “obvious.” The court determined that in such cases, summary judgment in favor of the defense is not appropriate.

The Facts of the Case

The plaintiff was a customer of the defendant bank who visited the bank to make a deposit through the drive-thru window. When she arrived, the bank was closed, so she decided to make the deposit at the bank’s outdoor ATM. However, the area around the ATM was under construction. The plaintiff testified that there was a sign in front of the ATM with an arrow to go around the barricade. However, when she walked around the barricade she stepped into a “pot hole,” falling to the ground. As a result of her fall, the plaintiff fractured her foot and leg, and injured her neck and back.

The plaintiff filed a premises liability lawsuit against the bank, as well as the construction companies that were responsible for completing the work around the ATM. The plaintiff made two claims: first, that the bank was liable under a failure-to-warn theory, and second, that the bank was liable under a failure-to-maintain theory.

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Published on: February 22, 2017

Court Broadly Defines “Health Care Provider,” Subjecting Plaintiff’s Slip-and-Fall Case to Heightened Medical Malpractice Requirements

By Cecere Santana, PA

Earlier this month, a West Virginia appellate court issued a written opinion in a slip-and-fall case that occurred at a hospital. The issue the court had to decide was whether the plaintiff’s case was properly considered a medical malpractice case under state law, or whether it was a premises liability case. The significance of the distinction between the two types of cases is that medical malpractice cases are subject to additional procedural requirements.

The Facts of the Case

The plaintiff accompanied her husband to the defendant hospital for a medical check-up. The plaintiff’s husband checked in and was escorted to an examination room by a medical assistant. The medical assistant instructed the plaintiff’s husband to have a seat on the examination table and then left the room.

As the plaintiff’s husband attempted to climb onto the examination table, he fell back onto the plaintiff. Both the plaintiff and her husband sustained serious injuries, and the plaintiff’s husband died 90 days after the incident. The plaintiff filed a premises liability lawsuit against the hospital.

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Published on: February 2, 2017

Plaintiff’s Own Actions Deemed an “Intervening Cause” of His Injuries, Resulting in Summary Judgment for Defendant

By Cecere Santana, PA

Earlier this month, an appellate court in Georgia issued a written opinion in a negligence case brought by a man who was seriously injured when his apartment caught fire after a gas explosion. In the man’s case against the gas company, the court determined that while the gas company may have been negligent in failing to lock the meter after it detected a leak, the plaintiff’s own actions were deemed an intervening cause that severed the initial chain of causation. Thus, the court affirmed the lower court’s decision to grant the summary judgment in favor of the defendant.

The Facts of the Case

The plaintiff was moving into a new apartment. Before he moved in, the owner of the apartment arranged for the gas to be turned on. A technician from the gas company came to the property, turned on the gas, and noticed that the meter indicated there was a leak somewhere in the home’s gas system.

The technician filled out a warning card and left it with the girlfriend of the plaintiff’s son-in-law, who was the only one present at the time. The warning indicated that the gas meter was left in the off position because there was a leak that needed to be fixed. The card also explained that the system was left unlocked, so once the leak was fixed, a plumber could turn the system on. This was in direct violation of the gas company’s policy to always leave the meter off and locked when there was a gas leak detected.

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Published on: November 9, 2016

Appellate Court Explains a Landowner’s Duty to Prevent Slip-and-Fall Accidents

By Cecere Santana, PA

Earlier this month, an appellate court in Kentucky issued a written opinion outlining how lower courts should analyze premises liability claims. In the case, Goodwin v. Al J. Schneider Company, the highest court in the state held that the lower courts misapplied the relevant analysis in dismissing the plaintiff’s lawsuit.

The Facts of the Case

Goodwin and his wife were attending a convention in the defendant’s hotel. On his second day at the hotel, Goodwin slipped and fell as he attempted to enter the shower, injuring his knee. The shower had a grab bar to assist guests in entering the shower, but there was no shower mat. Other rooms in the hotel did have both a grab bar and a shower mat, and after Goodwin’s fall, the hotel provided him and his wife with a shower mat for the remainder of their stay.

Goodwin filed a premises liability lawsuit against the hotel, claiming that the hotel was negligent in failing to provide a shower mat. The hotel responded to the claim by asserting that it did not have a duty to provide both a shower mat and a grab bar, and that by providing a grab bar, the hotel’s duty was met. Furthermore, the hotel claimed that Goodwin’s fall was due to his own carelessness.

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