For foodies like myself, the cuisine du jour/hipster thing to do is to go to a random pop-up market of high end food trucks. In Florida, there is a weekly food truck market called “Roaming Hunger.” There you can sample a wide range of cuisines from around the world. From Peking Duck Tacos to Grilled Cheese Sandwiches with Macaroni & Cheese and Bacon filling, this high end “street food” is the “in” thing to do in Miami and the surrounding areas. Usually these markets take place on County or City property and the food trucks are granted a permit for temporary use.
But what happens when a person slips and falls at an event like this? And what if the slip and fall occurs on government property? Who is liable-the food truck vendor or the City and/or County?
What Constitutes Premises Liability?
A premises liability claim is the liability for a landowner of certain torts that occur on the owner’s real property. When one thinks of premises liability, the first thought that comes to mind is a “slip and fall.” However, premises liability claims can also include injuries caused by hazardous conditions including open excavations, uneven pavement, standing water, crumbling curbs, wet floors, uncleared snow, icy walks, falling objects, inadequate security, insufficient lighting, concealed holes, improperly secured mats, or defects in chairs or benches.
In order for plaintiff to assert a premises liability argument, plaintiff must show: 1) the defendant possessed the land or “premises,” 2) the plaintiff must been an invitee, or a licensee and 3) there must be negligence (a breach of the duty of care) or some other wrongful act. At common law, in the case of landowners, the extent of their duty of care to those who came on their premises varied depending on whether a person was classified as a trespasser, licensee, or invitee. However, these old classifications were abolished in the 1968 landmark case of Rowland v. Christian, a California case which stated landowners owed a duty of care to all persons on one’s land, regardless of status ((1968) 69 Cal.2d 108). Since Rowland v. Christian, states have adopted their own version of Rowland v. Christian as it pertains to premises liability actions. In Florida, the state appellate court has found that “all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” (Owens v. Publix Supermarkets, Inc. (2001) 802 So.2d 315, 320).
What Constitutes a “Dangerous Condition”?
A common theory for recovery in a premises liability action is for a plaintiff to claim that he or she was injured as a result of a dangerous condition on the owner’s property. In order for a plaintiff to succeed in a premises liability action for a “dangerous condition,” the plaintiff must show 1) the condition exposes a person on the property to an unreasonable risk of harm and 2) the possessor/owner has no reasonable basis for believing that the entrant (person visiting the property, either invited or uninvited) will discover the condition or realize the risks involved.
The Miami-Dade County v. Jones Matter
The Third District Court of Appeal ruled on the matter of Miami-Dade County v. Wanda Jones on November 8, 2017. Jones claims she slipped and fell on a greasy sidewalk which was owned by Miami-Dade County while visiting a barbeque stand located on private property which was operated by V-II Sports Club, Inc. Jones contended that a faulty grease disposal system underneath the barbeque stand caused grease to spill out onto the sidewalk. She alleged she suffered injuries from her fall and sued the County and Sports Club. Her complaint argued the Sports Club was responsible for creating the dangerous condition on the sidewalk and the County negligently maintained the sidewalk by allowing the dangerous condition to remain on the sidewalk.
The jury found the Sports Club 50% liability, the County 50% liable and Jones 0% liable. The County then filed a motion for a directed verdict, judgment notwithstanding the verdict and a new trial on the grounds there was no evidence the County had notice of the dangerous condition on the sidewalk and the trial court erred by permitting Jones to introduce County ordinances and other irrelevant and prejudicial evidence in an attempt to the prove the County had notice. The trial court denied the County’s post-trial motions and the County appealed.
The crux of the County’s argument was while there may have been a grease spill on a sidewalk, which is County property, the grease spill did not constitute a dangerous condition because the County was not put on notice about this alleged “condition.” In fact, Jones conceded at trial that the County did not cause the grease to spill onto its sidewalk. Furthermore, Jones also conceded at trial the County did not have actual knowledge of the grease on the sidewalk. There was also no evidence in the record which indicated how long the grease was present on the sidewalk on the day Jones fell. In fact, Jones admitted during trial she did not know how long the grease was on the ground, but that it appeared “fresh.” Also, Jones could not say for certain if a grease spill was what caused the discoloration of the sidewalk near the area where she fell. Lastly, there was no evidence introduced at trial which showed anyone had ever complained about or noticed a grease spill on the sidewalk before. Simply put, Jones failed to present any evidence that a grease spill occurred on the discolored sidewalk even once before her fall, let alone with such frequency that the County should have known about it.
Jones also did not present any evidence at trial which indicated the County had any notice of the alleged grease spill. Jones did introduce evidence at trial that County inspectors and employees were present in the area numerous times over a course of years. However, she did not introduce at trial any evidence to suggest that there was grease on the sidewalk during any of these inspections which could have put the County on notice that the grease collection system employed by the Sports Club was insufficient. Furthermore, Jones did not introduce evidence that suggested the inspections were conducted in response to a call relating to a grease spill or that anyone had ever reported or otherwise witnessed a grease spill in the area prior to Jones’ fall.
Despite the lack of evidence introduced at trial, Jones claimed the County was liable for her injuries because the County did not adhere to its own ordinances pertaining to inspections and permits for public food establishments, which she claimed was evidence of the County being on constructive notice of the grease spill. However, the Third District Court of Appeal found that while an ordinance may cover the subject of inspecting food establishments, it does not imply the County had constructive notice of a dangerous condition created by a food establishment. Furthermore, the Court found the ordinances would only be relevant in the case if they were introduced to show the County should have, but failed, to comply with its duty to inspect the barbeque stand. Also, the County has sovereign immunity from liability for enforcing or failing to enforce its laws. (Trianon Park Condo. Ass’n, Inc. v. City of Hialeah (1985) 468 So.2d 912, 922). Given the introduction of these ordinances, the Third District Court found it created an unfair prejudice and confusion to the jury.
Given the lack of evidence and the jury confusion pertaining to the County’s sovereign immunity, the Third District Court reversed the final judgment and the trial court’s order denying the County’s post-trial motion and remand for entry of a judgment in favor of the County.
The moral of the story is this: if you are a government entity that is being sued via a premises liability theory, it is important to understand the complexities of the allegations that are being made and defenses which can be asserted on your behalf. A government entity and a private business may have different defenses available. It is important to retain counsel who understands this difference. If you have been served, it is important to notify your insurance carrier immediately so a timely response can be made asserting all applicable defenses.