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Own A Business? What You Need to Know About Premises Liability

On September 28, 2013, a 26-year-old man was shot and killed at the 45th Street Flea Market in Palm Beach County.  The mother of this man is now suing the owners of the market claiming it breached its duty to protect customers.  This lawsuit is based on the premises liability of an invitee to a business establishment.

Like all other states, Florida places a duty upon possessors or owners of land to those upon the premises. The degree of the duty owed depends on the legal “status” of those upon the land.  In Florida, there are three categories (with subcategories) of duties owed:

1.       Trespassers – one who comes onto the land without permission or privilege (such as police or firefighters).

a.       Undiscovered Trespassers – a person who enters the property without an invitation, either express or implied, and whose presence was not detected within 24 hours preceding the incident.  For a landowner to avoid liability to these undiscovered trespassers, the landowner must avoid intentional misconduct that causes injury but has no duty to warn of dangerous conditions.

b.      Discovered Trespassers – a person who enters the land without an invitation, either express or implied, and whose presence is detected within 24 hours preceding the incident.  For a landowner to avoid liability they must refrain from gross negligence or intentional misconduct that causes injury.  The landowner must also warn of any dangerous conditions that they know of, but are not readily observable by others.  However, in Florida, the landowner owes no duty to warn of dangerous conditions when a discovered trespasser is under the influence of alcohol or drugs (they still must refrain from gross negligence or intentional misconduct, however).

c.       Anticipated Trespassers – where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over their land and is treated as a discovered trespasser.  This situation may change if the landowner posts a “no trespassing” sign.  Then the trespasser may be converted into an undiscovered trespasser.

2.       Licensees–a person who enters on the land with the landowner’s permission, either express or implied, for their own purpose or business rather than for the landowner’s benefit.  Social guests are considered licensees.

a.       Licensee–In most states, the duty owed to the licensee is a duty to warn of any dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.  The landowner has no duty to a licensee to inspect for defects or to repair known defects.  However, Florida has an exception for this category.  Florida categorizes these people as licensees by invitation and is treated as invitees (they are owed a duty of reasonable care under the circumstances).

b.      Uninvited Licensee–Unlike the rest of the country, Florida has a category of licensees titled uninvited licensees.  These persons come onto the premises solely for their own convenience without invitation and are owed the same duty as discovered trespassers.

3.       Invitees–a person who enters onto the premises in response to an express or implied invitation of the landowner.  The landowner owes a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee.  This duty includes the duties owed to licensees and a duty to make reasonable inspections to discover dangerous conditions and make them safe.  The requirement to “make safe” a dangerous condition is usually satisfied if a reasonable warning has been given.  Also, the duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should have reasonably been aware of it (open and obvious).  A person may lose their status as an invitee if they exceed the scope of the invitation (e.g., a restaurant patron enters an area marked “employees only”).  There are three classes of invitees:

a.       Held Open to the Public – those who enter as members of the public for a purpose for which the land is held open to the public (e.g., churches, airports, museums, etc.)

b.      Business Invitee – those who enter for a purpose connected with the business or other interests of the landowner (e.g., store customers and people with them, employees, persons making deliveries, etc.).  In Florida, the owner or occupier of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees.

c.       Privileged Invitees–those who come onto the premises, not for their own purpose, but are still treated as invitees.

i.         Purpose of the Possessor – entrants serving some purpose of the possessor is generally treated as invitees (e.g., mail carriers, garbage collectors, etc.).

ii.    Government Entities – entrants who come under normal circumstances during working hours are generally regarded as invitees (e.g., census takers, health inspectors, etc.).

iii.   Police/Firefighters – in most states, the “firefighters rule” provides that police officers and firefighters are treated as licensees rather than invitees, and they cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.  However, in Florida, a firefighter or law enforcement officer who lawfully enters the premises of another while acting in their official capacity occupies the status of an invitee.

The 26-year-old man who was shot and killed was a business invitee of the 45th Street Flea Market.  The market owed a duty to this man and all other patrons to keep the premises reasonably safe for the benefit of the patrons.  Apparently, this market has had a history of violent incidents with no security or police on duty to protect patrons, and there are no warnings present putting patrons on notice of this violence. Once a dangerous condition, such as repeated violent acts, is known by the premises owner, they must take reasonable steps to make the condition safe.  The market in this situation seems to have not done that.  Time will tell if the legal system will hold this premises owner responsible for their lack of due care towards their invitee.

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