Premises Liability FAQ’s

A premises liability case is one in which you are hurt on the property of another person or entity due to the negligence or fault of the other person or entity. Premises liability cases, for example, include slip and fall, trip & fall and negligent security/inadequate security/improper security cases.

No, in order to successfully pursue a premises liability case, your accident must be somebody else’s fault. In other words, if you accidentally get hurt on the property of another person or entity (for example, if you trip over your own shoes in Walmart), you will not automatically be able to successfully sue or successfully pursue a case. You will only be able to do so if the owner of the property was at fault in some way.

You can figure out who owned the property where your accident or fall occurred by visiting the Property Appraiser’s website in the County where your accident happened. For example, you can visit the property appraiser’s website in Broward County.

You can visit the property appraiser’s website in Miami-Dade County.

You can visit the property appraiser’s website in Palm Beach County.

Once you’ve figured out the owner of the property where your accident or fall occurred, you can get the correct corporate name of the owner (the name to be used in your lawsuit) on the Division of Corporations website.

In order to make a successful claim or file a successful lawsuit, you will need to prove that your fall was the fault of somebody else. Otherwise, you will not have a case. In order to prove that somebody else’s negligence caused your fall, you will need to prove how your accident occurred. You can do this either through your own testimony (i.e., if you remember how you fell) or through circumstantial evidence (e.g., there was dangerous condition, for example liquid on the floor, in the area right by where you fell).

So no, you don’t need to specifically remember your fall in order to make a successful claim, but you do have to have some way of proving what happened and whose fault it was.

Yes, you will be able to pursue a case against the homeowner as long as you are able to show that the accident was the fault of the homeowner. If that is the case, then you should be able to receive compensation from the homeowner’s insurance policy of the owner. If the owner doesn’t have a homeowner’s insurance policy (or if the insurance policy isn’t enough to cover you for your injuries), then you other option will be to pursue the personal assets of the owner - although you can’t take the home if the owner lives in it. This is due to Florida’s Homestead Law.

If you slip and fall on a substance on the property of another person or entity, you will need to prove that the other person or entity either 1) knew of the dangerous condition (i.e., had “Actual Knowledge” of the dangerous condition) or 2) should have known of the dangerous condition (had “Constructive Notice” of the dangerous condition).

In order to prove that the owner of the property had actual knowledge of the dangerous condition, you can show either that the property owner created the dangerous condition (for example, that an employee of a store spilled water on the ground) or that the property owner actually became aware of the dangerous condition sometime after it was created (i.e., an employee saw the water on the ground after it was spilt).

You can prove that the defendant in your case had constructive notice of the dangerous condition by proving that it had been there for long enough that the defendant should have known about it. There is no minimum amount of time required for constructive notice. It will be up to the Judge and Jury in your case to determine if the dangerous condition existed for a long enough period of time that the defendant had constructive notice of and should have been aware of it.

For a slip and fall on a substance on the floor of a property, there are various ways that you can prove that the dangerous condition/substance must have existed for long enough a period of time that the defendant had constructive notice of and should have known about it:

• One way is to show/demonstrate that the substance had dirt in it. Dirt in the substance would be proof that it must have existed for a while – otherwise, there wouldn’t be time for the dirt to develop.
• Another way would be to show/demonstrate that the substance had foot prints or track marks in it. After all, if the substance existed on the ground on the property for long enough for people to walk over it or push/drive a cart over it, then it must have been there long enough that the defendant should have been aware of it.
• If you slipped on liquid on the floor and the liquid appeared to be coming from somewhere (for example, if the liquid was leaking from a bottle or cooler), then this could be evidence that the liquid existed for a while (after all, liquid doesn’t leak out of a bottle or cooler instantaneously).
• If it was food that caused your slip & fall, you can prove constructive notice by showing/demonstrating that the food was rotting or contained mold. Mold, for example, takes a while to develop, and mold existing on food is evidence that the food must have been there for a while.
• If the substance existed in a place close to one or more of the defendant’s employees/within eyesight of one or more of the defendant’s employees, then you could easily argue that the substance was there long enough that the employees should have been aware of it. After all, if the employees are within eyesight of the substance, then it shouldn’t take very long for them to become aware of it – especially since they are tasked with/responsible for keeping a safe environment at the property.

If you tripped and fell on the property of another person or entity, who you can sue depends on the cause of your trip and fall accident. If you tripped on something “transitory” (i.e., an object that existed on the floor only temporarily), then you can bring a case against the tenant of the property but not the landlord. After all, if the object that caused your fall was only temporarily on the floor of the property, then there would be no way for the landlord to know about it. The only exception to this would be if you could somehow prove that the landlord knew of the presence of the object.

On the other hand, if you tripped over a “fixture” on the property (i.e., something permanent like a defective step on the property), then you can bring a case against the landlord but not the tenant. After all, it is the landlord that would have the right and ability to make changes to the fixture, so it is the landlord who will be responsible for not doing so. A tenant, on the other hand, will not be responsible unless you can somehow prove that the tenant had the right and ability to make changes to the fixture.

If your accident was caused by a defective fixture (such as a defective step on the property), then your attorney may hire a building code expert to evaluate the property where you fell and the defect and determine/give an opinion as to whether or not the property was built up to code (e.g., up to the “Florida Building Code” or the “Life Safety Code”). If it wasn’t, then you will have a case for negligence against the property owner. The Florida Building Code can be found here.

The Life Safety Code can be found here.

Yes, if surveillance videotape captured your accident, you should be able to obtain the footage. However, when the defense is required to give it to you is another story. Some judges force the defense to give you the surveillance videotape prior to your deposition, while others only require this after your deposition. Whether you get the footage before or after your deposition is up to your judge.

Many business’s surveillance cameras are on “loops.” This means that the surveillance video tapes over itself or “re-records,” meaning that the earlier footage can be lost. As such, if you’ve been in an accident in a place where there was surveillance footage, it will be important for you to get the surveillance video as soon as possible.

In the meantime, you attorney may send the defendant a letter called a “spoliation” or “preservation” letter. In this letter, your attorney will instruct the defendant to preserve the footage and not get rid of it. If the defendant gets rid of the footage in spite of the letter, your judge can grant you an “adverse inference” or “presumption.” With an adverse inference or presumption, your Jury will be instructed by your Judge to infer or presume that, if the surveillance videotaped footage was still available, it would be favorable to you and your case.

If you get hurt in a store, restaurant or other business establishment, you compensation will most likely come from an insurance company. This is because most business establishments carry commercial liability insurance. On the other hand, if the business where you were injured does not have insurance, then you will be forced to go after/pursue the business’s assets.

Yes absolutely. If you’ve had or experienced an accident or fall on the property of another person or entity, then you should definitely take pictures of the dangerous condition or substance that caused your accident or fall. Especially if the dangerous condition was a transitory/temporary substance, it will probably be cleaned up or fixed relatively quickly – and so you will want to take pictures/video so that, at a later date, you’ll be able to show or demonstrate what the dangerous condition looked like. Without this, it will be much harder to prove that a dangerous condition existed and that it caused your accident or fall.

No, if you’ve had an accident or fall in a business establishment, you are not required to fill out an incident report. In fact, it is recommended that you speak to an attorney before filling out any kind of incident report. If you fill one out, the business establishment where you fell may attempt to use it against you later in court.

No. When the defendant in your case repairs or fixes the dangerous condition that caused your accident, this is called a “subsequent remedial measure.” Subsequent remedial measures are not admissible in court. This is because of the public policy that the law wants to encourage defendants to fix their properties and keep them safe. If defendants knew that these repairs could be used against them in court, they might not make them – and society would be less safe. As such, the law prevents subsequent remedial measures from being used in court.

This rule is pursuant to Florida Statute 90.407.

Yes, if you filled out an incident report after your accident or fall, the business establishment where you accident occurred or where you fell must/has to give you the incident report.

However, if employees of the business establishment filled out/wrote out their own incident report, then they will not be forced to give it to you. In fact, they will only be required to give it to you if the defense intends on using it at trial.

If you were injured/hurt as the victim of a crime on the property of another person or entity (or if a loved one was the victim of crime and tragically passed away), you may have a negligent security case against the property owner if the owner didn’t provide proper security on the property to deter crime. You can pursue a negligent/inadequate security case if either 1) the property didn’t have any security (e.g. there were no security guards) or 2) the property didn’t have enough security (e.g., security was provided, but either there wasn’t enough security provided or the security that was provided wasn’t the proper or correct type).

Your negligent security case will be strongest if the crime occurred in a high crime area. This is because, in that case, it will be easier to make the argument that the business establishment should have known that proper security was necessary. After all, if the business existed in a high-crime area, then the business should have known it had to provide proper security to deter or defend against crime.

In order to determine if the crime that injured you or tragically killed/murdered a loved one happened in a high crime area, your attorney may request the “crime grid.” The crime grid is a document that shows all of the crimes that occurred in the area in recent history. If the crime grid shows that many crimes have recently occurred in the area, then you can make the argument that the business establishment should have known that proper security was required and that, since such security wasn’t provided, the business is responsible for your injuries.

Yes, if you are injured/hurt due a defect/defective condition on a roadway, you may be able to pursue a case against the owner of the roadway, the designer that designed the roadway or the contractor that constructed or built the roadway.

In this situation, a key question will be who is responsible for your injuries. The answer may lie in the question of whether the defective or hazardous condition was “patent” (i.e., obvious) or “latent” (i.e., hidden or not obvious). If the dangerous condition was patent, then it will be the owner of the roadway – such as the Florida Department of Transportation (FDOT), a City, or a County – that will be responsible/liable. After all, if the defective condition was obvious, the owner should have noticed it when the construction was completed and the roadway turned over to the owner.

On the other hand, if the dangerous condition was latent, then it will be the designer who designed the roadway or the contractor who built/constructed it who will be liable. After all, if the dangerous condition wasn’t obvious, then there would be no way for the owner to have perceived it or known about it. Rather, the designer or contractor should have notified the owner of the defect. This is known as the “Slavin Doctrine.” The case upon which it’s based, Slavin v. Kay, 108 So. 2d 462.

Yes, if you’re injured in a defective elevator, escalator or ladder, you may be able to pursue a case against the property owner where the accident or fall occurred. You may also be able to pursue a case against the designer or manufacturer of the elevator, escalator or ladder.

Whether your case will be against the property owner or the designer/manufacturer of the ladder will depend on the cause of the accident or fall. For example, if the equipment defect was created after the elevator, escalator or ladder was sold (i.e., while it was in the custody or control of the property owner), then it will probably be the property owner who will be responsible. On the other hand, if the defect existed at the time it was sold, then it will probably be the designer or manufacturer that will be responsible.

Yes, if your family member, relative or loved one was the tragic victim of drowning, you may be able to pursue a case. Who will be the defendant in your case will depend on the cause of the drowning. For example, property owners with pools are responsible for keeping/obligated to keep/must keep/have to keep their pools safe. If they don’t keep the pool secure (e.g., by putting a gate around the pool or adequately supervising the pool with a lifeguard) and a child drowns, the property owner may be liable/responsible.

If this is the case, the child’s loved ones will have a wrongful death case against the property owner. In a wrongful death case, an Estate will be set up on behalf of the child. A Personal Representative (usually a family member or loved one) will be appointed to act as the technical “Plaintiff” and carry on the case. And proceeds from the case will go to benefit the child’s parents/”survivors” – who will be the “beneficiaries” of the Estate.

Yes, if you’re injured/hurt on a cruise ship, you may be able to bring a case against the cruise line (Carnival, Norwegian, Royal Caribbean, Celebrity, Disney, etc.). One thing that makes a cruise ship case a little different than a typical premises liability case is that, in a cruise ship case, where you can bring your case will depend on your cruise ticket. Usually, your ticket will tell you where you need to file your lawsuit (for example, in federal court in Miami, etc.).

If you are injured/hurt in an accident or fall in a business establishment, you can pursue a case and fight to have the store, restaurant or business establishment where you were hurt compensate/reimburse you for your medical bills. The business establishment should be forced to do this if it was negligent/at fault for your accident. Additionally, the business where you were hurt may have, as part of its insurance policy, a “medical payments” (“med pay”) provision that may pay for a portion of your medical bills. For example, many businesses carry a $5,000 medical payments provision that will pay for the medical bills of people injured on the business premises.

Should you be injured in a premises liability accident anyplace in Fort Lauderdale or anyplace in the State of Florida, contact Mr. Quackenbush at 954-448-7288. He will gladly give you a free, no obligation consultation and talk to you about your case for free.

Should you hire Mr. Quackenbush to represent you in your case, he will do so on contingency - which means that there is no risk to you whatsoever because Mr. Quackenbush won’t get paid until you’ve made a recovery in your case.