Visitor Status in Florida Premises Liability Lawsuit

When serious injury or death occurs as a result of encountering a dangerous condition on someone else’s property, there is a possibility the incident could give rise to a premises liability lawsuit.

However, experienced property injury attorneys at Associates and Bruce L. Scheiner, Attorneys for the Injured, know the decision to pursue litigation shouldn’t be made without careful consideration. One of the first elements to weigh is the status of the injured visitor.

In other words: What were you doing there?

This is such an important factor because Florida courts assign varying degrees of responsibility to property owners, depending on the status of the injured visitor. Those statuses include: Public invitee, business invitee, licensee by invitation, uninvited licensee and trespasser. The law requires property owners to extend the highest duty of care to public invitees and business invitees, while virtually no duty is owed to trespassers (excluding children in some circumstances).

Visitors afforded the greatest degree of protection in Florida premises liability law are public invitees and business invitees.

The Florida Bar defines a “public invitee” as someone who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public. Examples of “public invitees” would be those who use public parks or hospital visitors. These are people who may have no specific business-related purpose on the land or property, but are welcome as it is open to members of the public.

“Business invitees,” meanwhile, are those who are invited to enter a property or remain on site for a specific purpose that is directly or indirectly connected with business dealings with the possessor of the land. It is in these cases the vast majority of premises liability claims arise. An example of a business invitee is a patron at a big box warehouse store or someone who visits a Florida theme park as part of a family vacation. Each serves to further the business interests of the property possessor.

Public invitees and business licensees are both afforded the greatest degree of protection from property owners. The law requires owners to correct or warn public and business invitees of dangers about which the owner knows or should know by reasonable use of care, and which the visitor can’t or shouldn’t know about in the course of using reasonable care. Further, property owners have a duty to maintain the premises in a reasonably safe condition. Courts have ruled that includes guarding against foreseeable third-party crimes.

It should be noted that public invitees who are hurt on public property (i.e., tripping on a crack in the sidewalk, being struck by a falling tree branch in a park, slipping in a wet parking lot outside of a school, etc.) may have to overcome an assertion of sovereign immunity, which protects government agencies and their employees from liability. However, F.S. §768.28 allows for the waiver of sovereign immunity in certain tort actions where injuries arise from the negligent acts or omissions of government employees acting within the scope of employment.

Premises liability cases against government agencies and employees can still be successful, but it requires the involvement of an experienced injury attorney who is dedicated to extensive research and knowledgeable in the special procedures required in such cases.

The next category of visitor status in premises liability law is “licensee.” There are two kinds of licensees: invited and uninvited. Each are owed a different duty of care by the property owner.

An invited licensee is someone who is on-site by invitation, most commonly as a social guest of the landowner or property possessor. These individuals are afforded the same protections as public or business invitees, in that the property owner is required to exercise reasonable care in maintaining the property in a safe condition.

If for some reason a property owner is unable to immediately address the dangerous condition, the guest is owed an adequate warning of the hazard.

Uninvited licensees are those who choose to come onto a property for his or her own personal convenience without invitation—express or reasonably implied—under the circumstances. An example might be a salesman who knocks on a door uninvited. Here, property owners are only required to refrain from willful or wanton injury. This might mean removing any concealed “traps” of which the owner has actual knowledge. There is no duty owed to uninvited licensees to guard against third-party crimes.

The lowest duty of care is owed to trespassers. A trespasser is someone who does not have permission to be on the site and yet enters anyway. This person has no license, invitation or other right to be on the property, but intrudes for his or her own purpose, convenience, curiosity or simply to idle.

Here again, property owners owe no real duty to protect trespassers from danger, except to refrain from willful or wanton injury. Usually, property owners aren’t required to anticipate or provide for the presence of trespassers, as he or she may rightfully assume people won’t enter the property uninvited.

The one exception is a child trespasser. If a property owner is unaware of a child trespasser and has no reason to suspect such a presence, ordinary rules regarding trespassers may apply. However, if a child trespasser is discovered or if the property owner has knowledge children are likely to trespass, property owners must exercise reasonable care, warn children of any known, existing dangers on site and prevent children from being exposed to dangerous conditions.

In some cases, property owners can hold a higher degree of care if there is active engagement with hazardous machinery or if an attractive nuisance exists on site that would draw young children who might not understand the consequences of contact with the hazard.

Given the complexity of determining visitor status alone, persons injured on someone else’s property should immediately seek the counsel of an experienced premises liability attorney.

If you or a loved one has suffered injury in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.