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Casualty Litigation

Landowner’s Duty of Care in Florida, and the Special Case of Contractors

Landowner’s Duty of Care in Florida, and the Special Case of Contractors

In a premises liability case, the landowner’s standard of care is determined by the category of entrant.  Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972).  See also ARP v. Waterway E. Assoc., Inc., 217 So. 3d 117, 120 (Fla. 4th DCA 2017); Byers v. Radiant Group, LLC, 966 So. 2d 506, 508 (Fla. 2d DCA 2007).  The three categories of entrants are invitee, licensee and trespasser.  Id

An invitee enters land at the express or implied invitation of the owner, either to conduct business with the owner, or for the purpose for which the land is held open to the public.  Wood v. Camp, 284 So. 2d 691, 694 (Fla. 1973); Charterhouse Assocs., Ltd., Inc. v. Valencia Reserve Homeowners Assoc., Inc., 262 So. 3d 761, 765(Fla. 4th DCA 2018).  A landowner must keep his property reasonably safe for an invitee, and protect the invitee from danger of which the owner should have been aware.  Post, 261 So. 2d at 147.

A licensee also enters land by invitation, but instead of a entering for a business purpose, he enters for his own convenience, pleasure or benefit. Post, 261 So. 2d at 147.  An uninvited licensee enters the land for the same purposes, but without express or implied invitation.  ARP, 217 So. 3d at 120-21 (citing Wood, 284 So. 2d at 695).  A landowner must not willfully or wantonly injure a licensee / uninvited licensee, or intentionally expose him to danger.  Post, 261 So. 2d at 147.  In addition, when an uninvited licensee is discovered, the landowner must warn of any known dangers that would not be open to ordinary observation.  ARP, 217 So. 3d at 120-21.

A “trespasser is a person who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.”  ARP, 217 So. 3d at 120 (quoting Wood, 284 So. 2d at 695).  A landowner must not willfully or wantonly injure a trespasser, or intentionally expose him to danger.  Post, 261 So. 2d at 147.  If the trespasser is discovered, the landowner must warn of any known dangers that would not be open to ordinary observation.  ARP, 217 So. 3d at 120-21.

The classification of an entrant is determined not upon initial entry to the land, but rather at the time of injury.  Byers, 966 So. 2d at 509.  As such, “[a]n invitee may lose his status and become a licensee or trespasser by going to a part of the premises that is beyond the scope of his or her invitation.”  Id.  In Denniser v. Columbia Hospital of South Broward, 162 So. 3d 26 (Fla. 4th DCA 2014), the plaintiff visited her mother at a hospital.  On one of the visits, the plaintiff entered the hospital kitchen through a closed, unlocked door.  She slipped and fell on the kitchen’s wet floor.  In the resulting personal injury lawsuit, the hospital filed a motion for summary judgment, arguing that the plaintiff lost her invitee status and became an uninvited licensee or trespasser upon entering the staff-only kitchen.  The hospital contended that based on the plaintiff’s status, it was required only to warn her of concealed dangers after her presence was discovered, and that the plaintiff was not discovered until after she fell. 

The trial court ruled that the plaintiff was an uninvited licensee or trespasser.  The appellate court affirmed, ruling that the plaintiff lost her invitee status by going into a part of the hospital beyond the scope of her invitation.  It also reiterated that “[a] duty to warn an uninvited licensee or trespasser of any known, concealed dangers arises only when the owner discovers their presence.”  Denniser, 162 So. 3d at 28.  See also Dougherty v. Hernando Cnty., 419 So. 2d 679, 681 (Fla. 5th DCA 1982) (affirming summary judgment for landowner where invitee left public walkway and entered non-public area, becoming either an uninvited licensee or trespasser); Dunlop v. Reynolds, 204 So. 2d 754, 755 (Fla. 2d DCA 1968) (affirming summary judgment for landowner when customer was injured after stepping into an area that was not for customers).

Contractors on the property present a special case.  Generally, a landowner is not responsible for injuries sustained by an independent contractor working on the owner’s property.  E.g. Fuentes v. Sandel, Inc., 189 So. 3d 928 (Fla. 3d DCA 2016); Strickland v. Timco, 66 So. 3d 1002 (Fla. 1st DCA 2011); Morales v. Weil, 44 So. 3d 173 (Fla. 4th DCA 2010).  This general rule has two exceptions.  A landowner can be responsible for a contractor’s injuries (1) where the owner controlled or actively participated in the work or (2) where the owner negligently created or approved a dangerous condition.  Id

Of the two exceptions, the second is more common.  But the second exception applies only where the contractor is injured by “dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care.”  Strickland, 66 So. 3d at 1007.  In Strickland v. Timco Aviation Systems, Inc., 66 So. 3d 1002 (Fla. 1st DCA 2011), the plaintiff contractor was hired to pressure wash the roof of an airplane hanger and repair the skylights.  While pressure washing, the plaintiff was blinded by the chemicals he was using.  He then stepped onto a skylight and fell through it, falling five stories.  The plaintiff sued the landowner, alleging the landowner was negligent because the skylights “were indistinguishable from the roof because of their color,” could not withstand the weight of a person and lacked guardrails; and because the landowner furnished inadequate safety equipment.  The landowner filed a motion for summary judgment, arguing that the plaintiff knew the roof had skylights, and also knew the danger of stepping on one. 

The trial court granted summary judgment for the owner.  The appellate court affirmed, and specifically rejected the argument that the skylight was dangerous because it was the same color as the roof.  It reasoned that the plaintiff was on notice of the skylights by way of the contract with the landowner:

[The plaintiff] contends that the skylights constituted a dangerous condition because they were difficult to locate and detect, even before they were exposed to the chlorine solution used by [the plaintiff] to pressure wash the roof.  However based on the terms of the contract with [the landowner] that required maintenance and repair of the skylights, [the plaintiff] was necessarily on notice of the existence of the skylights.  Further, because of the work contemplated under the contract, it was incumbent upon [the plaintiff] to ascertain the location of the skylights, to determine their condition in order to repair them, and to navigate around them when pressure washing the roof.  The danger of falling through the skylights was a recognized risk attendant to performance of work under the contract.

* * *

We, therefore, reject each of [the plaintiff’s] arguments that the appearance or condition of the skylights was a dangerous condition created or approved by [the landowner].  The danger of falling through the skylights was an obvious hazard in light of [the plaintiff’s] knowledge that the skylights existed and [the plaintiff’s employer’s] obligation under the contract to repair and maintain them.

Strickland, 66 So. 3d at 1009. (emphasis added) 

In addition, any duty to warn applies only to dangers that are not inherent in the contracted work.  Morales, 44 So. 3d at 179.  See also Fuentes, 189 So. 3d at 934 (landowner’s duty to warn applies to “concealed dangers not inherent in the work”); Strickland, 66 So. 3d at 1010 (landowner “plainly had no duty to warn [the contractor] of the obvious hazard or danger posed by the skylights since that hazard was an integral part of the work that [the contractor] was hired to perform.”); Frazer v. Freight Handlers, Inc., No. 3:11-CV-0015-HES-JRK, 2011 WL 13295725, at *6 (M.D. Fla. June 29, 2011) (“the owner has no duty to warn of dangers associated with the contracted work.”). 

Rather, a landowner is entitled to “assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly.”  Morales, 44 So. 3d at 179.  See also Johnson v. Boca Raton Comm. Hosp., 985 So. 2d 593, 596 (Fla. 4th DCA 2008) (“the supreme court noted that the independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies and is aware or presumed to be aware of the usual hazards incident to the performance of the contract.”); Parrish v. Matthews, 548 So. 2d 725, 725 (Fla. 3d DCA 1989) (“When, as here, the injury occurred as a result of a condition the plaintiff was engaged to correct, summary judgment was properly entered for defendants.”).

Lastly, a landowner has no duty to warn of a dangerous condition when the condition is readily ascertainable by the contractor.  Strickland, 66 So. 3d at 1007 (“But where the danger is open and apparent or readily ascertainable, the property owner is under no duty to warn and will not be held liable for injuries sustained by the employee of an independent contractor in performing work under the contract.”) (emphasis added); Morales, 44 So. 3d at 178 (landowner’s duty is “to warn the invitee of any concealed dangers that the owner knows or should know about, which are unknown to the invitee and cannot be discovered by the invitee through due care.”) (emphasis added); Frazer, 2011 WL 13295725, at *5 (quoting Florida Power & Light Co. v. Robinson, 68 So 2d 406, 411 (Fla. 1953)).

So, to determine the duty owed to a entrant, look first at why he was there in the first place.