Premise liability claims are a concern to persons engaging a contractor (a business invitee) to perform renovation, maintenance, or repair work on property they own or lease. These are claims where a person injures himself / herself on another’s premises and sues the owner (and/or tenant) under theories grounded in negligence. “The crux of a cause of action for premises liability is not the ownership of the premises, but the negligence of the possessor in permitting [business] licensees and invitees to come unwarned to an area where they could foreseeably be injured by a dangerous condition which is not readily apparent.” Phillips v. Erican Manufacturing & Machine, Inc., 40 Fla. L. Weekly D103a (Fla. 5^th DCA 2014) quoting Houssami v. Nofal, 578 So. 2d 495, 496 (Fla. 5th DCA 1991).

In a negligence case, a plaintiff needs to prove the following four elements:

the defendant owes the plaintiff a duty of care;
the defendant breached that duty;
the defendant’s breach of that duty proximately caused damage / injury to the plaintiff; and
the plaintiff suffered damage / injury.

In premise liability claims, an issue oftentimes turns to the very first element, that being whether the defendant (e.g., property owner or tenant) owed the plaintiff (e.g., injured person) a duty of care. If the defendant did NOT owe the plaintiff a duty of care, there can be no negligence claim.

The Duty of Care in a Premise Liability Claim

In Phillips, a company was hired to clean and paint a warehouse’s corrugated metal roof that included cleaning and caulking skylights on the roof. As a worker was working on the roof, he fell through a skylight that had been concealed as it was painted the same color as the roof. While the skylight at-issue was visible from inside the warehouse, it was not visible from the exterior due to the paint. The injured worker sued the owner (amongst others) in a premise liability claim.

As reflected in a prior posting also dealing with an injury from a skylight, an owner that hires an independent contractor is typically not liable for injuries to the contractor’s employees unless: a) the owner was actively participating in the construction in that the owner directly influenced the manner in which the work was performed or b) the owner failed to warn the independent contractor of latent defects / perils that were either known or should have been known to the owner and which were not known by the independent contractor and could not have been discovered by the contractor through the exercise of due care.

This goes to the duty (first element in a negligence action) that an owner owes an independent contractor or any business invitee that an owner invites on his/her premises.

Because the painted skylight was not visible from walking on the roof, the issue was whether locating skylights solely from the roof was a reasonable inspection or whether the contractor should have also located skylights from inside the warehouse. If the contractor should have located skylights from inside the warehouse, then the contractor could have discovered the concealed peril (painted skylight) with due care, thereby defeating his premise liability claim. The Fifth District found that this was an issue for the jury.

What about this twist. The warehouse was leased to a company the owner was an officer of. Could the tenant be liable for premise liability claims? How about the owner if the tenant is the one utilizing the property and invited the contractor on the property? This is important because if a party does NOT possess or have control over the premises, and specifically the requirement to perform maintenance and repairs to the premises, then that party owed no duty of care and should not be liable for a premise liability claim. The Fifth District explained:

“In cases like this, where the facts involve a leased premises, the extent of responsibility for injuries occurring on the leased premises during the term of the lease depends on the extent the owner of the property maintains control over the premises. When the landlord and tenant have a lease that expressly sets forth which party has the power to possess and control the property during the term of the lease, the issue of control is a matter of law.”

Phillips, supra (quotations and internal citations omitted).

Notably, if a lease allows the tenant to make improvements or repairs subject to the owner’s approval, the owner will be deemed to have sufficient possessory interest or control over the leased property to owe a duty to a business invitee. See Russ v Wollheim, 915 So.2d 1285 (Fla. 2d DCA 2005).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.