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Florida Fourth DCA reverses trial verdict for premises liability plaintiff, finds insufficient evidence of dangerous condition and of failure to protect invitees

On July 19, 2017, in The Las Olas Holding Company v. Demella, No. 4D16-231, the Florida Fourth DCA reversed a jury verdict in favor of the plaintiff in a premises liability action and remanded the case for the trial court to grant the defendant’s motion for a directed verdict. The case involved the alleged wrongful death of a guest at the defendant’s hotel who was killed when a drunk driver veered off of a roadway and struck a pool cabana which collapsed on the decedent. The decedent’s personal representative sued both the drunk driver and the hotel, alleging that the latter was negligent in the placement of the cabana near a curve in the roadway and in the construction of the cabana. The defendant presented evidence at trial that the cabana complied with all building codes and that there had never been an accident at the road’s curve in the more than 49 years of the road’s existence.

On review, the Fourth DCA noted that in a premises liability case, a property owner is ordinarily under no duty to exercise any care to warn or guard against the harmful acts of a third party unless the third party’s harmful behavior is reasonably foreseeable. Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010). The Court concluded that evidence that the defendant was aware of the road’s slight curve was legally insufficient to establish that the defendant “knew or should have known” of a dangerous condition on its own premises. In addition, the Court concluded that even if the defendant knew or should have known about a dangerous condition, thus creating an affirmative duty to protect its guests from the danger, the defendant did not breach that duty. The Court noted that the defendant protects its guess from the roadway by a street curb, a palm tree, various hedges and concrete cabana enforced with steel.

Finally, the Court additionally concluded that the evidence with respect to proximate causation was sufficiently unequivocal to take this matter from the fact-finder. The Court cited McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992) for the proposition that “[t]he law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.” The Court also relied upon and quoted from Bosket v. Broward Cty. Hous. Auth., 676 So. 2d 72, 74 (Fla. 4th DCA 1996): “[a]n intervening cause may relieve the defendant . . . from liability if the intervening cause is completely independent of the defendant’s negligence, was not set in motion by the defendant’s negligence, and was not foreseeable by the defendant.”

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