Wednesday, March 18, 2015

I Was Injured By a Dangerous Condition, What Are My Rights?

Often times we represent clients who have suffered an injury on someone else’s property and they want to know whether they can successfully pursue a claim for negligence against the owner or occupier of the property. Questions also arise regarding what type of condition on the property caused our client’s injuries and whether the owner or occupier of the property had the responsibility, or “duty,” to warn our clients of that danger. To answer these questions and determine whether the claim would be successful, an overview and understanding of how Florida law views and defines “dangerous condition” and to what standard owners or occupiers of land are held is imperative.

Was the Danger that Caused the Injury “Obvious?”

As a general matter in Florida, an owner or occupier of land is not required to warn invitees (those individuals who are on the property for the benefit of the owner/occupier, such as a customer shopping in a store) of obvious dangers. This is because the law encourages people to take responsibility for their own safety and keep a look out for obvious dangers and take action to prevent injury accordingly. However, the law will require an owner/occupier of land to warn its invitees of an obvious danger if the owner should anticipate that the obvious danger could be harmful despite the fact that it is obvious. See, Moultrie v. Consolidated Store Int’l Corp., 764 So. 2d 637 (Fla. 1st DCA 2000).

When going through this type of analysis, it is important to consider who will ultimately be making the determination of whether a defendant should anticipate that an obvious danger could be harmful and cause injury. That decision resides with the jury as a fact finder during a trial, or a judge if there is a bench trial. Most of the inquiries are fact intensive and will hinge on the specifics of a given case. By way of example, in Houk v. Monsanto Co., although the plaintiff knew that there were drains that carried hot water, it was not obvious to the plaintiff that some of those drains may not have been properly covered and thus could cause injury. 609 So. 2d 757.

Was the Injury Suffered by the Plaintiff Foreseeable?

In order to find that the owner or occupier of the property should have warned its invitees of an obvious danger, there must be foreseeable harm. If there was foreseeable harm, then the owner/occupier of property can be required to provide warning of the harm if the type of injury was foreseeable based on the surrounding circumstances. This concept is best illustrated by way of example.

In Weir v. Krystal Co., the plaintiff tripped and fell over indentations in a restaurant parking lot. Although the indentations where the plaintiff tripped were obvious and visible, there were other factors at play that helped the plaintiff’s argument that the owner/occupier of the property should still have anticipated harm. The factors that the plaintiff utilized in supporting that argument were that the indentations were located close to the curb and restaurant front door in an area where there were cars and often times traffic. Thus, the plaintiff argued that one could be easily distracted by the traffic and other circumstances and should not be expected to be looking down at that ground to see whether the parking lot contained conditions that might be dangerous. Therefore, the court found that it would be up to the jury to determine whether the defendants should have anticipated the harm and thus should have implemented sufficient warnings. 612 So. 2d 665 (Fla. 1st DCA 1993).

Call Dolman Law Group for More Information

If you've been injured on someone else’s property as the result of a dangerous condition, speak with the attorneys at Dolman Law Group. A thorough examination of your claim does not end after our investigator is sent to the scene to gather evidence; rather, a thorough analysis of Florida law as it relates to premise liability and the facts and circumstances surrounding your fall are crucial in establishing liability and successfully pursuing your claim. For more information call 727-451-6900.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765

Monday, March 2, 2015

I Was Injured By an Employee: Is The Employer Responsible?

Often times our clients are injured as the result of the negligence—or even the intentional tortious act—committed by an employee. The question always becomes whether or not the employer can be held responsible for the negligence and/or intentional acts of its employee. The answer to that question is significant in that if answered in the affirmative, it provides an avenue to pursue the insurance policy of the employer for our client’s injuries.

The Doctrine of “Respondeat Superior”

Under the doctrine of Respondeat Superior, an employer can be found liable for the negligence and in certain circumstances the intentional acts of its employees if it is shown that the employee was acting within the course of scope of employment and in furtherance of the interests of the employer’s business purpose. See e.g., Iglesia Cristiana La Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001).

So what does it mean for an employee to be acting within the course and scope of employment? In making that determination, Florida courts generally look at whether:

  • The service being performed was the kind the employee was employed to actually perform,
  • The conduct committed by the employee (whether the negligent act or intentional tort), occurred substantially within the hours of work and at the place of business, and whether
  • The action was intended, at least in part, to serve the interests of the employer.
The last prong is important, and an employer can be held vicariously liable for the actions of its employees if the employee is furthering the employer’s interests, even if the employee himself is gaining some benefit as well.

Intentional Torts

Difficulty often arises when trying to determine whether an employer can be held responsible for the actions of his/her employee after the employee commits a battery on someone. At first glance, it would seem that inflicting physical harm on someone would not be acting within the course and scope of one’s employment. There are, however, instances where Florida courts have found employers liable for the intentional torts committed by their employees.

For instance, in Colombia by the Sea, Inc. v. Petty, the Second District Court of Appeals found that a restaurant could be held vicariously liable for its employee assaulting a customer. The court looked at the circumstances surrounding the assault and found that the waiter had assaulted the customer in attempts to secure payment for an unpaid bill. Thus, even though the assault may have occurred out of the employee’s own personal aggression and anger, the assault was also precipitated in part by the employee’s desire to protect the interest of his employer by ensuring payment for the bill. 157 So. 2d 190 (Fla. 2d DCA1963). What this case illustrates is that if you are able to show that at least part of the employee’s motivation in committing the assault/battery furthered the interests of the employee, vicarious liability may be established.

In contrast, if the conduct of the employee is perpetrated for the sole purpose of fulfilling the employee’s personal desire to conduct a practical joke or the like, an employer will not be held vicariously liable. Such a scenario occurred in Bryant v. CSX Transp. Inc., where an employee threw a cherry bomb and injured a co-employee. The court found that such an act did not further the interests of the employer and therefore the employer could not be found vicariously liable. 577 So. 2d 613 (1st DCA 1991).

When you are injured by someone’s employee, it is imperative to know under what circumstances you may successfully pursue the employer for your damages. Whether you are injured as the result of someone’s negligence, or you’ve suffered an assault, speaking with an attorney who understands the intricacies involved in litigating your claim is critical. The attorneys at Dolman Law Group are well versed in litigating claims involving vicarious liability and the doctrine of respondeat superior. For more information call 727-451-6900.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765