UNDERSTANDING AND DEFENDING AGAINST IMPROPERLY ASSERTED PREMISES LIABILITY CLAIMS
Whether done intentionally or not, plaintiffs frequently assert premises liability claims against defendants that are not actually subject to such claims. When this happens, these defendants are at risk of facing a heightened duty of care that can be tantamount to strict liability.
This article will discuss: (1) the differences between premises liability and general negligence claims; (2) why premises liability claims are more difficult to defend; (3) the appropriate standards to consider when determining whether defendants are subject to premises liability claims; and (4) strategies for defending improperly asserted premises liability claims. Ultimately, the goal of this article is to help defense counsels identify these types of claims and offer guidance for how to best defend them.
Comparing Premises Liability and General Negligence Claims
When a lawsuit arises from an injury that occurs as a result of a dangerous condition on another's property, this type of claim is called “premises liability.” While general negligence claims involve “active negligence” — meaning the defendant actually does something to harm the plaintiff – premises liability claims involve “passive negligence” — meaning the defendant's failure to do something to the property results in harm to the plaintiff.
Under Florida law, one in “possession or control” of a premises (hereinafter referred as a “possessor”) owes a non-delegable duty to individuals legally on the property to: (1) maintain the premises in a reasonably safe condition; and (2) warn of any dangerous conditions of which it knew or should have known about. However, there are additional elements that a plaintiff must establish to successfully prove a premises liability claim. Specifically, the plaintiff must prove that he/she was authorized to be on the premises, that the defendant possessed or controlled the premises, and in many cases, that the defendant knew or should have known about the dangerous condition.”
Nonetheless, the benefits afforded to a plaintiff in a premise's liability claim will oftentimes outweigh the burden of overcoming these additional elements or defenses. Even though a defendant's ultimate duty in any negligence claim is to exercise reasonable care, in many respects, the duty owed to a plaintiff under a theory of premises liability is higher than that owed to a plaintiff under at theory of general negligence. This concept is best illustrated by comparing the Florida Standard Jury Instructions between a premises liability and general negligence claim.
For a general negligence claim, the standard instructions for the element of breach is “whether the defendant was negligent in (describe alleged negligence).” This instruction puts the onus on the plaintiff to properly identify the defendant's specific conduct by which it failed to use reasonable care. For instance, if the basis for the alleged negligence is a violation of a contractual obligation, the plaintiff would most likely identify within the instruction the defendant's conduct that had been performed negligently under the contract.
Consider, for example, the following hypothetical which will be used throughout this article:
An invitee slips while walking up a wooden staircase at a commercial property. The property owner allowed its CGL insurance to lapse, and recently filed for bankruptcy. As a result, the plaintiff sued the contractor that constructed the staircase for negligently failing to install non-stick tape.
First, consider that there was a written contract that expressly memorialized the contractor's obligation to install the non-stick tape. Here, the jury instruction for the element of breach could be as straight-forward as “whether the defendant was negligent in failing to install non-slip tape on the staircase.” Regardless of the language used in the instruction (and notwithstanding a Slavin Doctrine defense), the plaintiff here would probably not have a difficult time proving that the defendant was obligated to install the non-stick tape.
Now consider that there was no written contract but evidence that all the other staircases on the property had non-stick tape already installed on them. Here, while the defendant's ultimate duty to the plaintiff would be the same, it may not be as clear to a jury whether the specific failure to install non-stick tape was a breach of that duty. As a result, it is likewise not clear how specific the plaintiff's ideal jury instruction would be. If the instruction is too specific to the defendant's conduct, this may allow the defense to make the case a referendum on the defendant's duty. Specifically, it may open the door to a favorable preliminary instruction and special verdict form as to whether the defendant had a duty to install the non-stick-tape.
For these reasons, the jury instruction here would probably be something broader, like “whether the defendant was negligent in constructing a staircase unsafe for pedestrian use.” However, while this may avoid the issues identified above, there is now a greater disconnect between the instruction and the defendant's allegedly negligent conduct. Regardless as to the language used in the instruction, the plaintiff here still must prove that that defendant was negligent for failing to install the non-stick tape. Ultimately, if the plaintiff must prove the element of breach through specific conduct, he/she will always have more difficulty doing this when there is not clear evidence that the defendant was obligated to perform such conduct in the first place.
Conversely, in premises liability claims, the Florida Standard Jury Instructions offer plaintiffs who are invitees or licensees the opportunity to choose up to three pre-determined instructions to prove the element of breach. Specifically, whether the defendant negligently failed to: (1) “maintain the premises in a reasonably safe condition.” (2) “correct a dangerous condition about which the defendant either knew or should have known, by the use of reasonable care”; and (3) “warn the [plaintiff] of a dangerous condition about which the defendant had, or should have had, knowledge greater than that of the [plaintiff.]”
Of the three omissions identified above, the one most often utilized by plaintiffs is the first one: that the defendant “negligently failed to maintain the premises in a reasonably safe condition.” Generally, this form of conduct is not limited in time or scope. The word “maintain” is defined by the Merriam Webster dictionary as “to keep in an existing state; preserve from failure or decline.” The word “safe” is defined as “free from harm or risk.” Thus, the instruction may reasonably be interpreted as: “whether the defendant negligently failed to keep the premises in an existing state free from harm or risk.”
Practically speaking, if a condition is capable of causing injury, it is “dangerous.” Logic dictates that anything “dangerous” is not “safe.” As one's “duty to maintain” is not restricted to any specific conduct, the existence of a dangerous condition would seem to in and of itself establish the element of breach. This is particularly true when the alleged dangerous condition is not a transitory foreign substance at a business establishment.
Moreover, because nearly every condition can, in some way or another, contribute to an injury, it is nearly impossible to disprove a claim that a particular condition was dangerous. A defendant may choose to argue that the alleged condition was reasonably safe; however, the simple fact that the plaintiff was injured seems to generally undermine this argument. As a result, premises liability cases are oftentimes more about proving the existence of a dangerous condition than proving the defendant's negligent conduct. In this regard, many premises liability claims are understandably seen as being tantamount to strict liability.
In the hypothetical with the staircase, it seems obvious that the contractor was not a possessor since it completed its work prior to the incident. However, consider that the incident happened after the contractor had constructed every aspect of the staircase, but before it finished painting the handrails. Here, assuming the contract did not require the installation of non-stick tape, if a plaintiff sues the contractor under a theory of general negligence, there is probably no specific conduct that he/she may reasonably argue was performed negligently by the contractor.
Alternatively, if the plaintiff sues under a theory of premises liability, then he/she would only have to prove that the contractor failed to maintain the staircase in a reasonably safe condition. Here, the plaintiff could potentially prove the element of breach in a multitude of ways, including prior incidents, weather conditions, and expert testimony. While the contractor could argue that it performed its work exactly as required under the contract, if held to the standard of a possessor, such defense may appear to be legally insufficient under the jury instructions. As such, if the plaintiff can establish that the lack of non-stick tape was in fact a dangerous condition, then it may be able to prove that the contractor breached its duty of care under a theory of premises liability.
Who Is Subject to A Premises Liability Claim?
Unfortunately, because premises liability claims can be more favorable to plaintiffs, defendants that are not possessors are oftentimes improperly subjected to these claims. Particularly, building contractors, landscapers, handymen, and maintenance companies are all disproportionately sued improperly under theories of premises liability. This, however, begs the question: what level of possession or control must one exercise over an area to be subject to a premises liability claim?
In Florida, “[p]remises liability is not predicated on ownership of the property; instead, the duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property.” “The crux of the cause of action for premises liability is not legal title or ownership, but the failure of the person who is in actual possession or control (be it an owner, agent, a lessee, a construction contractor, or other possessor with authority and control), 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.” More specifically, "[t]he duty to protect others from injury resulting from a dangerous condition on a premises rests on the party who has the right to control access by third parties to the premises, be it the owner, an agent, or a lessee of the property."
While expected that there would not be any hard-and-fast rules for establishing a possessor, it is surprising how little guidance Florida courts have provided in explaining what is meant by the phrase “the right to control access.” Moreover, of the few appellate decision that have applied this standard, nearly all have been in cases where a commercial landlord had contractually relinquished its own right of access to the premises.
Even more surprising, the Florida Standard Jury Instructions do not provide much means for rebutting a premises liability claim made against a Defendant who may not actually be a possessor. Notably, the only direct reference to such defense is contained in the notes for 401.20(b), which states that the court must “[g]ive preliminary instructions 401.16(b) and 401.17 before giving instruction 401.20(b) if there is a jury question of whether defendant owned or had possession of the land or premises.” Unfortunately, however, this appears to be an oversight; 401.16(b) is limited to when the plaintiff is a “discovered trespasser” or “uninvited licensee” and merely states that it applies to “[a] person who owns or has possession of land.” In fact, arguably nowhere in the Florida Standard Jury Instructions or its notes is there any specific direction for what an appropriate instruction would be for determining whether a defendant is in possession or control of a premises.
Recently however, the Third District in Bechtel Corporation v. Batchelor, provided some much needed guidance on the issue of who may be considered a possessor. There, the Plaintiff sued several Defendants alleging that he contracted mesothelioma from exposure to asbestos while working as an electrical technician at a nuclear power plant. One of his claims was brought under a theory of premises liability against Bechtel Corporation (“Bechtel Corp”), a third-party contractor that worked at the power plant. Although Plaintiff was employed by the property owner, he nonetheless argued that Bechtel Corp owed him a duty as a possessor because it was “in control of the operations and maintenance” of the powerplant. Specifically, Plaintiff argued that Betchel Corp had “control over the areas where it performed work” because of: (1) its operative service contracts with the property owner; and (2) its performance of maintenance work in the areas or “units” where Plaintiff alleges to have been exposed to asbestos.
Ultimately, the court found that Betchel Corp did not possess or control the premises because there was no direct evidence showing that the property owner surrendered, or otherwise offered to jointly possess, the area in question, or any part of the powerplant. Notably, the court made this decision notwithstanding the fact that Bechtel Corp provided more than one million service hours at the powerplant and had trailers on the premises which it used for office space and storage.
The court further held that because the service contracts were silent regarding the transfer of any possession or control of the premises, such contracts did not support an inference that the property owner shared its right to possess or control any part of the premises with Betchel Corp. The court noted that although the service contract included the word “possession,” when read in context, such word was expressly used to describe Betchel Corp's possession of its work, materials, and equipment; not the premises itself. The court did note, however, that had the service contracts required Betchel Corp to keep its worksite “safe and proper” (as provided in its earlier contracts), such language may have been sufficient to create a jury question as to whether Betchel Corp was a possessor of the premises.
Most importantly, however, the court found that even though Betchel Corp had performed maintenance work in the units where Plaintiff alleges the dangerous condition had existed, the performance of this work in and of itself did not support an inference that Betchel Corp actually possessed or controlled these areas. Specifically, the court found that because Betchel Corp never had the authority to exclude the property owner or other contractors from any area inside the units, the mere fact that it performed maintenance work there could not support a finding that it legally possessed or controlled any area of the premises. The court did note, however, that had there been some direct evidence of how or who controlled the worksite around the units, such evidence may have “tipped the evidentiary balance” to support a finding that Betchel Corp did have implied authority to exclude others from their worksite.
Under Betchel, “control of property for purposes of premises liability means control that rises to the level of the ability to control access or exclude others from the property.” More than anything else, the decision in Betchel supports the idea that one's “authority to exclude” may be the most probative factor in determining whether a defendant actually possessed or controlled a premises. Practically, this makes a lot of sense, as it is less ambiguous than “the right to control access,” which may be interpreted to include anyone who has the authority to invite another onto the property. For example, while a restaurant patron (who is obviously not a possessor) is free to invite whomever they want to the restaurant during business hours, such individual would clearly not have the same authority to exclude these people from the restaurant.
Consider again the last hypothetical with the staircase. If the plaintiff asserts a premises liability claim against the contractor, the contractor would argue that it should not be held to the standard of a possessor because it did not have possession or control of the staircase at the time of the incident. More specifically, under Bechtel, the contractor should defeat plaintiff's premises liability claim if it successfully establishes that it did not have the authority to prevent the plaintiff from walking up the stairs at the time of the incident. To prove that it did not have such authority, the defense could rely on the language in the contract, the defendant's course of performance, and testimony from the owner.
Now consider another hypothetical with a different set of facts:
While in a restaurant parking-lot, a patron walked across a grass median and stepped into an uncovered irrigation valve, causing her severe injuries. At the time of the incident, a landscaper performed lawn-care services at the property twice a month pursuant to an annual service contract with the property owner. The service contract includes the word "maintain," but has no reference to safety or control of access. There is no evidence that the landscaper removed or otherwise caused the removal of the valve's cover. The patron sued the landscaper under a theory of premises liability.
Here, because the service contract includes the word "maintain," it is tempting to concede that the landscaper has the same "duty to maintain" as that of a possessor. However, much like the court interpreted the contract in Bechtel, the word “maintain” should be applied in the appropriate context in which it was used. Since the operative contract does not include any reference to safety, the defense has a strong argument that it did not have any obligation to identify, discover or prevent any dangerous condition that it did not itself create.
Regardless, the landscaper should not be subject to a premises liability claim as it clearly did not have the authority to exclude patrons from walking on the grass median, or anywhere else in the parking lot. Absent direct evidence to the contrary, common sense tells us that the property owner did not implicitly authorize the landscaper to patrol the parking-lot and prevent individuals from using the grass. Not only would such conduct be outside the scope of the landscaper's services, it would probably get them fired.
Another factor to consider is the temporal proximity that one must be in possession or control of a premises with respect to the incident that caused the injury. In Betchel, the preliminary issue for the jury to decide was whether the plaintiff was on the premises in the possession or control of the defendant “at the time and place of the incident.” There, because the dangerous condition was the chronic exposure to a toxic substance, there was no issue as to whether the alleged possession or control would have occurred at the time of the alleged “incident.” (aka the plaintiff's exposure to asbestos).
Oftentimes, however, the incident in a premises liability claim is a single event. Notably, for claims that arise out of slip-and-falls, dog bites, and inadequate security, the event that caused the alleged injury can usually be narrowed down to a definitive time and place. While it is usually undisputed that a property owner possesses its premises at all times, it is not always clear under what circumstances a non-property owner would possess or control a premises if none of its employees were physically located on the property at the time of the incident.
For example, if a property management company is only contracted to work Monday through Friday, and the incident happens over the weekend, depending on the evidence presented, there may be an argument that the management company did not possess or control the premises at the time of the incident. If possible, the defendant may be able to establish that it was not a possessor by relying on the contract, its course of performance, and testimony from the property owner. Ultimately, however, if temporal proximity is the management company's only basis for not being considered a possessor, such issue would likely a question of fact for the jury.
Strategies for Defending an Improperly Filed Premises Liability Claim
Oftentimes it is not entirely clear from the initial pleading whether the plaintiff has asserted a premises liability claim. If the operative complaint is ambiguous in this regard, consider moving for a more definitive statement, if nothing else to elicit the plaintiff's position as to what theory of negligence his/her claim is based on.
Once you identify that a premises liability claim has been improperly asserted, it will be necessary to determine what evidence will best establish that your client was not a possessor. To the extent a written contract existed, it will likely be the strongest evidence in support of this defense. “In construing a contract, the intention of the parties is ascertained from the language used in the instrument and the objects to be accomplished…” Any argument that the owner “shared its right of possession and control of all or part of the premises” is negated by “the complete absence in the contracts of any discussion of [the defendant] assuming responsibility or control of any part of the premises.” Unfortunately, many clients will not have the benefit of a properly executed contract. In such cases, it will be necessary to identify additional evidence (e.g., communications or conduct) that will support the argument that your client did not have authority to control access to, or otherwise exclude others from, the area in question.
Next, it will be necessary to identify the facts which the plaintiff is relying on to support his/her claim that your client was a possessor. A good starting-point is to propound the plaintiff with targeted contention interrogatories asking for the factual basis to support his/her claim that the defendant possessed or controlled the premises at the time of the incident. Frequently, plaintiffs' responses will be vague and evasive or otherwise indicate that “discovery is ongoing.” These inadequate responses can and should be used in support a summary judgement motion and at trial. Thereafter, it will be necessary to “lock in” plaintiff's testimony as to any knowledge he/she has (or lack thereof) which supports his/her claim that your client possessed or controlled the premises at the time of the incident. Again, this testimony can and should be used in support of a summary judgment motion and at trial.
Next, if possible, it will be necessary to elicit testimony from the property owner that it did not surrender possession or control of the premises to your client. First try to get an affidavit from the property owner attesting to such. If the property owner is unwilling to do so, it will be necessary to depose its corporate representative. Specifically, you will need to designate narrowly tailored deposition topics regarding the property owner's knowledge, understanding and position about your client's authority to control access to, and exclude others from, the area in question. To transfer its own risk, a property owner may testify that your client was in possession of the property without providing any supporting facts. However, “[i]ssues of fact do not arise merely because a party disagrees with the facts established by competent evidence” When this happens, you must establish on the record that such opinion is purely speculative and not based on any material evidence. To do this successfully, you will need to identify and eliminate any potential basis the property owner could use to support its opinion, including the contract, specific communications between the parties, and personal knowledge of your client's conduct. Additionally, make sure that you serve the property owner with a Duces Tecum requesting all records and memorialized communications that supports any position that your client possessed or controlled the area in question.
If the contract language is clear enough, and/or you obtain supporting testimony from the property owner, you should move for summary judgement under Bechtel. However, if the court is unwilling to grant such relief, it is crucial that you request an appropriate preliminary instruction at trial. Unfortunately, the Florida Standard Jury Instructions do not offer an independent preliminary instruction for whether a defendant had exercised sufficient possession or control over the premises. Currently, the only instruction which may be used in this regard is a portion of 401.16(a), which states that “whether, at the time and place of the incident in this case claimant was invited on premises owned by or in the possession of defendant.” However, because this instruction does nothing to educate the jury about what legal possession entails, it is incumbent on you to move for a special set jury instruction and verdict form, citing the decision in Bechtel as support.
As a defense counsel, it is critical that you identify early in a case whether a premises liability claim has been improperly brought against your client. While the vast majority of civil lawsuits settle, it is always important to posture each case as if it will be proceeding to trial. By preventing the plaintiff from elevating your client's standard of care, it not only puts you in the best position to defend the case at trial, but ultimately, to favorably settle the case on behalf of your client.
 Bovis v. 7-Eleven, Inc., 505 So .2d 661, 662 (Fla. 5th DCA 1987); see Hix v. Billen, 284 So.2d 209, 210 (Fla.1973) ("There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises.")
 Fla. Std. Jury Instr. (Civ.) 401.18(a)
 See, Wilson-Green v. City of Miami, 208 So. 3d 1271 (Fla. 3rd DCA 2017); Maryland Maint. Serv., Inc. v. Palmieri, 559 So. 2d 74, 76 (Fla. 3d DCA 1990); (Where a contract exists, "a defendant's liability extends to persons foreseeably injured by his failure to use reasonable care in performance of a contractual promise.")
 Fla. Std. Jury Instr. (Civ.) 401.20(a)
 Maintain, Merriam-Webster's collegiate dictionary (11th ed. 2003)
 Safe, Merriam-Webster's collegiate dictionary (11th ed. 2003)
 See, § 768.0755, Fla. Stat. (2019)
 Welch v. Complete Care Corp., 818 So. 2d 645, 649 (Fla. 2d DCA 2002)
 Haynes v. Lloyd, 533 So. 2d 944, 946 (Fla. 5th DCA 1988)
 Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla. 5th DCA 1999) (emphasis added); See, Bovis v. 7-Eleven, Inc., 505 So. 2d at 664.
 See, e.g., Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077 (Fla. 5th DCA 1999); Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987).
 Fla. Std. Jury Instr. (Civ.) 401.20(a)
 Fla. Std. Jury Instr. (Civ.) 401.16(b)
 Bechtel Corp. v. Batchelor, 250 So. 3d at 190
 Bechtel, 250 So. 3d at 190
 250 So. 3d at 190
 Id. at 197-199
 Id. at 197
 Id. at 198
 Id. (emphasis added)
 Id. at 199
 Id. at 198 (emphasis added)
 Id. at 197
 Id. at 196
 Fla. R. Civ. P. 1.140(e)
 Rylander v. Sears Roebuck & Co., 302 So. 2d 478, 479 (Fla. 3d DCA 1974); See also, Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011) (In a contract, "the language itself is the best evidence of the parties' intent, and its plain meaning controls.")
 Betchel, 250 So. 3d at 197
 F & R Builders v. Lowell Dunn Co., 364 So. 2d 826, 828 (Fla. 3d DCA 1978)
 Fla. Std. Jury Instr. (Civ.) 401.16(a)
 See, Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001) (“In order to be entitled to a special jury instruction, [the defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.”)