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ELEMENTS OF A CLAIM

ELEMENTS OF A CLAIM

Most premise liability claims are based on a claim of negligence. The elements of a negligence claim require the injured party to establish:

  1. Duty (the property owner/possessor owed him/her a duty)
  2. Breach (the property owner/possessor breached that duty)
  3. Ijuries Proximately Caused by Breach
  4. Damages

In order to determine the duty owed by the property owner/ possessor, it is necessary to establish the injured party's status on the land. Florida classifies entrants onto the land of another into the following three categories:

  1. trespassers,
  2. uninvited licensees, and
  3. invited licensees and invitees.

The status of the entrant onto land of another and corresponding duty owed by the landowner must be gleaned from the relationship between the two. It is this relationship which is the criterion for the duty owed.

1. Trespasser

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, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity

Duty Owed: The duty owed to a trespasser is broken into two parts:

  1. To avoid willful or wanton harm to him (often described as a "negative duty"). This negative duty would include the duty not to create pitfalls or booby traps designed to intentionally injure a trespasser.
  2. Upon discovery of his presence to warn him of any known dangers which would not be open to his open observation.

2. Uninvited Licensee

An uninvited licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit. An uninvited licensee is neither an invitee nor a trespasser, but rather, a legal status in between whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner.

Duty Owed: The duty owed to an uninvited licensee is nearly identical to that of a trespasser. In fact Florida courts have noted that where the alleged negligence relates to a condition of the premises, a landowner owes the same duty to a trespasser or uninvited licensee. It includes the duty to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.

A landowner must exercise reasonable care to warn of all hidden perils which are unknown to the licensee but are known to the landowner. A hidden danger or peril is nothing more than an unreasonably dangerous condition that an uninvited licensee could not reasonably be expected to discover or appreciate. The landowner, however, has no duty to warn of conditions which a reasonable person would observe and avoid through the ordinary use of their senses. In short, superior knowledge of the danger is essential before there is a duty to warn.

3. Invitee

An invitee is either a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Florida has expanded the invitee category to include "those who are 'licensees by invitation' of the property owner, either by express or reasonably implied invitation.

Duty Owed: A possessor of a premises owes two legal duties to an invitee:

  1. to use reasonable care to maintain the premises in a safe condition, which duty includes a duty to use reasonable care to learn of the existence of any dangerous conditions on the premises, and
  2. to give the invitee warning of concealed perils which are or should be known to the landowner, but are unknown to the invitee and could not be discovered by him through the exercise of due care.