Florida/Georgia Personal Injury & Workers Compensation

...Its provisions include requiring mediation in certain types of actions and creating trial-resolution judges; amending chapter 90, relating to evidence of remedial measures; creating section 768.0705, pertaining to the limitation of liability if security measures are undertaken by convenience-store owners; amending section 768.075, restricting the liability of possessors of land to trespassers; placing caps on punitive damages; amending section 768.075, concerning trespassers' liability; amending chapter 95, regarding computation of time under statutes of limitation; apportioning damages under comparative fault; and imposing sanctions for unsupported claims or defenses....

...(2001) (duty owed by insurance companies that disclose false information in cancellation letter); § 713.31(2)(a), Fla. Stat. (2001) (liability for improper construction lien); § 725.06(1)(c), Fla. Stat. (2001) (prohibition for indemnity for such conduct in construction contracts); § 768.075(1), Fla....

...Because the accident occurred before October 1, 1999, the 1999 amendments to the statute concerning immunity from liability for injury to trespassers on real property are not pertinent to the issue in this case. See ch. 99-225, § 19, at 1413-15; § 36, at 1428, Laws of Fla. (amending section 768.075)....

...Leroy's contention that section 316.613(3) is, in essence, a grant of immunity, we disagree. If the Legislature intends to grant immunity from civil suit, it certainly knows how to explicitly do so. See, e.g., § 335.141(2)(a), Fla. Stat. (2007) (utilizing the language, "not liable for any action or omission"); § 768.075(1), Fla....

...Camp, 284 So.2d 691, 695 (Fla. 1973). An “invitation” means that “the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” § 768.075(3)(a)l., Fla....

...erely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.” Post, 261 So.2d at 147 (quoting 23 Fla. Jur. Negligence § 54 (1959)). A trespasser may be a “discovered trespasser” or an “undiscovered trespasser.” § 768.075(3)(a)2....

...An “undiscovered trespasser” is “a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property.” § 768.075(3)(a)3., Fla....

...The trial court did not address W.E. Association’s alternative argument for summary judgment—namely, that it owed no duly to the plaintiff because the accident occurred on a utility easement that was maintained by the City. We likewise decline to reach that issue. . Section 768.075(3), Florida Statutes (2011), which in certain circumstances provides tort immunity to owners of real property for injuries to trespassers on the property, divides the status of entrants into slightly different categories: invitees, discovered trespassers, and undiscovered trespassers....

...y of the evidence matters. The jury’s findings are irrelevant.” Connelly v. Metropolitan Atlanta Rapid Transit Authority, 764 F.3d 1358, 1363 (11th Cir.2014) (quoting Hubbard, 688 F.3d at 716 ). II. Steak N’ Shake’s Knowledge Florida Statute 768.0755 provides, in relevant part, that: (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the danger...

...no apparent purpose, other than perhaps to satisfy his curiosity.” Post, 261 So.2d at 147 . The Florida legislature has also defined a trespasser as “a -person who enters real property without invitation, either express or implied.” Fla. Stat, § 768.075....

...rty,” further defines ah “invitation” as “the visitor entering the premises .has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” Fla. Stat. § 768.075 (e)(a)l....

...Estate of Morton, 687 So.2d 53, 54 (Fla. 3d DCA 1997). The lowest level of care applies to trespassers. A property owner “must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser.” Fla. Stat. § 768.075 (3)(a)3.(b)....

...he transitory substance was not a required element of proof); and (c) the failure to exercise reasonable care was the legal cause of the injury. On July 1, 2010, the Florida Legislature repealed Fla. Stat. § 768.0710 and replaced it with Fla. Stat. § 768.0755 , entitled “Premises liability for transitory foreign substances in a business establishment.” This new statute is no longer limited to business invitees, but rather applies to “a person” who slips and falls on a transitory foreign substance in a business establishment and suffers injury....

...The statute added a new element to the injured person’s burden of proof — the injured person must now also prove that the business establishment “had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Fla. Stat. § 768.0755 (1)....

...Worley, 157 So.3d 552 (Fla 1st DCA 2015); Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418, 424 (Fla. 4th DCA 2014); Kelso v. Big Lots Stores, Inc., 2010 WL 2889882 (M.D.Fla. July 21, 2010), Mills v. Target Corp., 2010 WL 4646701 (M.D.Fla. Nov. 9, 2010) (all holding that Fla. Stat. § 768.0755 is a substantive rule of law which creates a new element of proof in a premises liability negligence action). 4 However, the stat *1301 ute “does not affect any common-law duty of care owed by a person or entity in possession or control of a business.premises.” § 768.0755(2). At trial, the Court held that the law of Florida1 with respect to determining a claimant’s legal status in premises liability cases is now governed exclusively by Fla. Stat. § 768.075 (the trespasser statute) and Fla. Stat.- § 768.0755 (the premises liability statute)....

...That is to say, it does not seem to me that .there’s anyplace in the law of Florida anymore for the concept or the term.of a licensee. You’re either — if you’re not the owner, you’re either a trespasser or an invitee, the latter being governed with respect to business establishments by 768.0755. And one of the things that impels me ' to that result is the fact that 768.0755 is a statute, as I’ve already mentioned, passed as recently as 2010, which seems to me would trump any prior decisional law that would in any way be inconsistent with the provisions of that statute. (Doc. 54, pp. 124-25). The Court further held that the provision in Fla. Stat. § 768.0755 (2) that the statute “does not affect any common-law duty of care owed by a person or entity in possession or control of. a-business premises” had to be read in pari materia with the remaining portions of that statute as well as Fla. Stat. §, 768.075 and, as such, applied to the duty of care afforded to business invitees and trespassers....

...129, 134). In other words, the Court concluded that the “uninvited licensee” category had been subsumed by these two statutes and no longer existed. , Steak N’'Shake disagrees, arguing that two federal district court decisions interpreting Fla. Stat. § 768.0755 establish that the uninvited licensee legal status continues to exist....

...Big Lots Stores, Inc., 2010 WL 2889882 (M.D.Fla. July 21, 2010)), and Mills v. Target Corp., 2010 WL 4646701 (M.D.Fla. Nov. 9, 2010). Neither of these unpublished decisions even mention the.term uninvited licensee, and do not discuss in any way how Fla. Stat. § 768.0755 impacts this,common law legal status. Rather, both of these cases simply hold that Fla. .Stat, § 768.0755 creates a new element of proof, and therefore is a substantive rule of law that cannot apply retroactively. Moreover, the Court has been unable to locate any decisions from any state or federal' court holding under Florida law, after the enactment of Fla. Stat. § 768.0755 , that the “uninvited licensee” legal status remains viable. Rather, the one decision that mentions “uninvited licensees” — Denniser v. Columbia Hospital Corp of South Broward, 162 So. 3d 26 (Fla. 4th DCA 2014) — does not discuss Fla. Stat. § 768.0755 , and uses the terms “uninvited licensee”- and “trespasser” interchangeably....

...at 148 . And an “invitation” exists when “the visitor entering the piremises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real-property where injury occurs.”- Fla: Stat. § 768.075(e)(a)l.Ms Seaberg’s presence in the Steak N’ Shake store clearly met these definitional elements of the term “business invitee.” First, evidence, was presented at trial that Heather Seaberg, Ms....

...Seaberg’s fall, and two witnesses (Deborah Cole and Heather Seaberg) testified that a substance was on the floor immediately before and after Ms. Seaberg’s fall. . , . . But see Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d DCA 2013) (holding that Fla. Stat. § 768.0755 is a procedural statute that does not create a new element of proof in a premises liability cause of action, but merely codifies a means and method by which a plaintiff shows that the defendant-business establishment has breached its duly of care) and Vallot v. Logan's Roadhouse, Inc., 567 Fed.Appx. 723 (11th Cir.2014) (noting that the Florida Supreme Court has not yet decided whether Fla. Stat. § 768.0755 is a substantive or procedural rule of law). . Fla. Stat. § 768.0755 refers to "a person” who is injured. It is clear, however, .when this statute is read together with § 768.075, that "person” refers to invitees to whom a business owner owes a legal duty and therefore the "injured person” must prove actual or constructive knowledge. . Steak N’ Shake’s argument is further weakened by its own words in its trial brief. See Doc. 39, p. 4 ("In other words, a discovered trespasser under [ Fla. Stat. § 768.075 ] is essentially a common law uninvited licensee; a ■ person whose presence is tolerated, but who is not invited to pursue those purposes for which such person enters.”) ....

...However, if a jury ultimately determines that a plaintiff in this action intentionally chose to remain on the property to engage in a public brawl, not as a matter of self-defense but simply to use violence to resolve a private disagreement, the jury should receive an instruction based on section 768.075(4), Florida Statutes (2003)....

...Ministries, Inc. v. Plante, 719 So.2d 368, 370 (Fla. 4th DCA 1998). Florida case law, however, has not extensively discussed the types of conduct within an area of invitation that can transform an invitee into a trespasser. The legislature, however, has enacted section 768.075(4), which prevents a property owner from being held liable under a negligence theory to an individual who is injured *513 while committing or attempting to commit a felony....

...bly use force against another in defense of others). But see § 776.041 (restricting the circumstances in which an individual, who was the aggressor, can justify the use of force as self-defense or defense of others). Accordingly, the application of section 768.075(4) to Mr....

...-vis the business owner's duty to invitees, but a circumstance that transforms the invitee into an uninvited licensee or trespasser to whom the business owner owes a substantially reduced duty. In Florida this tort law is partially incorporated into section 768.075(4), which prevents proprietors from being held liable to an individual who is injured while committing or attempting to commit a felony....

...duty of care owed to a visitor to the property resulting from the applicable category, see Wood v. Camp, 284 So.2d 691 (Fla.1973); Post v. Lunney, 261 So.2d 146 (Fla.1972); and Lukancich v. City of Tampa, 583 So.2d 1070 (Fla. 2d DCA 1991). See also § 768.075, Fla....

...2d DCA 1992). Accordingly, the question of whether Steven's status on the store's premises changed from that of an invitee to that of an uninvited licensee or trespasser is not material to a determination of the issue under review. [5] We have not overlooked section 768.075(4), which provides: A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to...

...tempting to commit a felony or who is engaged in the commission of a felony on the property. Notably, the circuit court did not rule that either Patricia or Todd had attempted to commit or had committed a felony on the store's premises. Accordingly, section 768.075(4) does not provide support for the circuit court's decision. [6] In circumstances where section 768.075(4) is applicable, the visitor's status as an invitee, licensee, or trespasser on the property appears to be immaterial.

...endant and plaintiff. See Fla. E. Coast Ry. Co. v. Southeast Bank, N.A., 585 So. 2d 314, 316 (Fla. 4th DCA 1991). However, in premises liability cases, the defendant’s duty to the plaintiff is dependent on the plaintiff’s status to the land. Id. Section 768.075 of the Florida Statutes provides that “[a] person or organization owning or controlling an interest in real property . . . is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser . . . .” § 768.075(2), Fla....

...injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others. § 768.075(3)(b), Fla....

WOLF, J. In this appeal of a final summary judgment order, appellant (Personal Representative of the Estate of Freddie Smith, III) challenges the trial court’s finding that section 768.075(4), Florida Statute (2007), shields property owners from liability in a negligence action for injury to a person who is committing a felony on the property without requiring any “causal nexus” between the felony and the injury....

...failed to provide adequate security measures and that those failures were a direct and proximate cause of Mr. Smith’s death. After a hearing, the trial court granted Appellees’ motion for summary judgment and dismissed the action on the basis of section 768.075(4), Florida Statutes, which provides: A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injur...

...re the person’s injury arose out of the commission of the felony despite the plain language of the statute itself. For support, Appellant points to the title of the enacting general law which describes the provision in relevant part as “amending s. 768.075, F.S.; ......

PER CURIAM. Affirmed. § 768.075, Fla....

...Teaira Nicole Reed (“Plaintiff”) as the personal representative of the estate of Tanya Renee Oliver (“the Decedent”). We affirm the final judgment in all respects and write only to address the Lodge’s argument that the trial court erred in denying its request for a section 768.075(4), Florida Statutes (2016), “felony defense” instruction. By way of background, Plaintiff filed a negligent security action against the Lodge after her mother was fatally shot in a parking lot owned and operated by the Lodge....

...Before the Decedent’s group could leave the parking lot, the shooters’ group returned and opened fire on their vehicle, fatally striking the Decedent who was seated in the front passenger seat. During the charge conference, the Lodge sought an instruction pursuant to section 768.075(4), Florida Statutes, which provides: A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property. § 768.075(4), Fla....

...intiff sustains in the commission or attempted commission of a felony. See id.; see also Byers v. Radiant Grp., L.L.C., 966 So. 2d 506, 512–13 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (reiterating that “[t]he legislature . . . has enacted section 768.075(4), which prevents a property owner from being held liable under 1 One of the bases of Plaintiff’s negligent security claim was that the Lodge’s security guards removed both groups to the parking lot without ensuring that the first group had left the property....

...initially refused to give the instruction on the basis that the Lodge waived the defense by failing to sufficiently plead the defense in its answer. However, the trial court later added to its previous ruling and concluded that, in addition to not being sufficiently pled, the section 768.075(4) defense did not apply because the Decedent was not engaged in the commission of a felony when she was shot. 2 a negligence theory to an individual who is injured while committing or attempti...

...by knowingly hitting a pregnant woman, see § 784.045(1)(b), (2), Fla. Stat. (2016), it is undisputed that the Decedent was sitting in a vehicle and no longer allegedly engaged in the commission of a felony when she was shot. Accordingly, as correctly found by the trial court, the section 768.075(4) defense does not apply in this case....

...“defense is applicable only to injuries the plaintiff sustains in the ‘commission or attempted commission’ of a forcible felony” (quoting § 776.085(1), Fla. Stat. (2000))). The Lodge nonetheless maintains that such a temporal limitation does not apply to a section 768.075(4) defense and cites Kuria v....

...operty owner for failure to provide adequate security measures. Id. After finding that the decedent was engaged in the commission of a felony when he was killed, the trial court entered summary judgement in favor of the apartment complex pursuant to section 768.075(4), Florida Statutes. Id. The estate thereafter appealed, arguing that the trial court erred in finding that section 768.075(4) “shields property owners from liability in a negligence action for injury to a person who is committing a felony on the property without requiring any ‘causal nexus’ between the felony and the 3 injury.” Id....

...at 426 n.1 (emphasis added). As illustrated above, the Kuria decision merely stands for the proposition that the injury giving rise to the negligence action need not have been caused by, or arise out of, the commission of the felony in order for the section 768.075(4) defense to apply....

...according to a visitor’s status.” (quoting Barrio v. City of Miami Beach, 698 So. 2d 1241, 1243 (Fla. 3d DCA 1997))). Indeed, the trial court cast Schramm as an undiscovered trespasser in determining that Adams was insulated from liability. See § 768.075(2), Fla....

...2 Even if Schramm’s fall occurred on his own property, this does not necessarily foreclose the finding of a duty. The unabated expanding hole by the property line—born on Adams’s property— 4 trespasser. Id. § 768.075(3)(a)3....

...(“‘Undiscovered trespasser’ means a person who enters property without invitation[.]” (emphasis added)). As the location of the incident here is genuinely disputed, and can frame, among other things, the duties owed and the applicability of section 768.075(3)(a)3.—it is a material fact, and the trial court erred in resolving this dispute against Schramm on summary judgment....

...ractor-trailer so as to avoid striking a pedestrian in the vicinity,” causing him to run over Collins, resulting in his death. *1003 NMMA and Beguiristain moved for summary judgment, asserting they were not liable for Collins’ death, pursuant to section 768.075(1), Florida Statutes (2009), which provides: a person or organization owning or controlling an interest in real 'property, or an agent of such person or organization, shall not be held liable for any civil damages for death of or injury or damage to a trespasser upon the property when such trespasser was under the influence of alcoholic beverages with a blood-alcohol level of 0.08 percent or higher.... 2 (Emphasis added). Ryan argued section 768.075 did not apply because NMMA and Beguiristain were licensees and did not control an interest in the property....

...In addition, whether a defendant in a negligence action owes a duty to the plaintiff is a question of law. Williams v. Davis, 974 So.2d 1052 (Fla.2007). The sole question we must determine is whether, as a matter of law, NMMA and Beguiristain are entitled to the immunity provided by section 768.075, Florida Statutes....

...There are certain exceptions, such as gross negligence or intentional misconduct on the part of the person or organization, but those exceptions do not apply here. . Although Ryan made additional arguments, we find they are without merit, and address only the applicability of section 768.075....

...plaintiff’s status to the land.” 10 Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490, 492 (Fla. Dist. Ct. App. 2015). And, under Flor- ida law, property owners owe a lower duty of care to a trespasser than they do an invitee. See Fla. Stat. § 768.075(2), (3)(b) (2015). With respect to invitees, businesses “owe a duty of reasonable care 10 Negligent security cases “fall under the auspices of premises liability as op- posed to ordinary negligence.” Nicholson, 154 So....

...wn trespasser,” the only duty owed “is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observ- able by others.” Nicholson, 154 So. 3d at 492; see Fla. Stat. § 768.075(3)(b) (2015). Additionally, the “status of a visitor to land possessed by an- other may change from one of the three categories to another” and is determined “as of the time that the visitor is injured.” Byers v. Radiant Grp., L.L.C., 966 So....