Saturday, September 21, 2019

Visitor Can be Trespasser, Licensee or Invitee

Law Matters

People seem to get hurt everywhere. Tripping, falling into holes, falling down stairs or something more painful. In many cases, the injured person’s first thought is who can I sue? The property owner might be liable, but that liability is partly dependent on the status of the injured person.

Under the Common Law inherited from England, persons on property are categorized as either a trespasser, licensee or invitee. Duty of a property owner for safety of a person of each of the foregoing categories, with the greatest duty owed to an invitee.

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A trespasser enters property without any right or authorization. At Common Law, a property owner had a minimal duty of avoiding willful and wanton harm to a trespasser and, once discovered, to warn a trespasser of known dangers which could not be discovered with ordinary observation. As in so many areas, the legislature decided to enter of this area, and in 1990 adopted a statute limiting liability of property owners for injuries of trespassers. The statute provides that a property owner is not liable for civil damages, for death or injury to a trespasser if the trespasser is under influence of alcohol or other chemical substances unless the property owner is guilty of gross negligence or intentional misconduct it is a cause of the lethal injury. Even when the trespasser is not under the influence of alcohol or otherwise impaired, the property owner is further insulated from liability to a trespasser whose presence was not detected within 24 hours preceding the accident and the property owner is not guilty of intentional misconduct as a cause of the injury. A property owner has no duty to warn of dangerous conditions unless the trespasser is discovered. The owner must warn a discovered trespasser of any dangerous condition that is not readily observable by others.

Common Law and Florida courts carved out one exception from danger for trespassers, known as the attractive nuisance doctrine. The attractive nuisance doctrine recognizes that there is a difference between the ability of children and adults to recognize and understand danger of certain conditions. An attractive nuisance is a condition which would be attractive to children and for which the children would not appreciate danger. An attractive nuisance could be an artificial lake, pile of sand, excavation or even construction. If the child is injured without recognizing the inherent danger of the attractive nuisance, the land owner is liable for failure to exercise reasonable care to eliminate the danger or otherwise to protect children.

Licensee is a rather ill-defined status. At least one Florida court has opined that the best definition of a licensee is a person who is neither an invitee nor a trespasser. Florida recognizes two categories of licensees: the invited and the uninvited. One is an invited licensee by expressed or implied invitation. Invited licensees are treated as invitees in Florida. In contrast, uninvited licensees are those who would go on someone’s property solely for their own convenience. Duty to an uninvited licensee is virtually identical to that owed to a trespasser. An invited licensee could be a social guest or family member. An uninvited licensee could be a door to door salesman.

As the title implies, an invitee is someone invited on to one’s property. Invitees are almost exclusively those invited to a business establishment. Florida courts define an invitee as someone entering another’s property for purposes connected with the business of the owner or occupant. Court supplied what is known as a “mutual benefit test,” sometimes referred to as “economic benefit test,” to determine status as an invitee.

The property owner and/or occupant have a duty to inspect the property to make sure it is safe and to eliminate any known dangers or provide protection by excluding invitees from the dangerous area and/or using appropriate protective devices or action. How often the property must be inspected depends upon the nature of the danger and circumstances, making it a factual determination in a case by case basis. If a defect should have been discovered by reasonable inspection, the property or business owner may be liable to business invitees injured by the dangerous condition.

The facts of each case will determine if there is actual liability. If a person slips and falls on a “transitory foreign substance” in a business establishment, Section 768.0755 Fla. Stat. requires the injured person prove that the business had an actual and constructive knowledge of the condition and should have taken action to remedy it or evident showing either the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of it or the condition occurred with regularity and was therefore foreseeable.

Standard of care is purportedly elevated when the business is a place of public amusement. In practice, the reasonable care standard is really not changed, but the facts warrant a somewhat higher degree of care when the public is invited to a place of amusement than other businesses. In amusement business, patrons are often distracted and less likely to notice a dangerous condition.

Police and firefighters are frequently addressed by the courts. Police and firefighters where historically determined to be licensees and not invitees. That was abolished by the legislature in 1990 by adopting Section 112.182 Fla. Stat. That section provides that firefighters and police officers entering premises in discharge of their personal duty occupy the status of an invitee. That ups the level of care from refraining from wanton negligence or wrongful conduct to (1) warning the firefighter or policeman once known of any dangerous condition if it is not open and obvious; (2) maintaining the premises in a reasonably safe condition; (3) correcting a dangerous condition known to the owner or should have been known; and (4) providing protection or other action to protect from the danger.

No property owner is a guarantor of safety, but the courts impose a higher duty to those invited by the owner or occupant. The facts of each case determine the category of the injured person, duty of the property owner or occupant and ultimate liability.

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