Melvin B. Wright
Colling Gilbert Wright & Carter
801 N. Orange Avenue
Orlando, Florida 32801
Automobile accidents are a fact of life in America, and people accept the fact that other drivers make mistakes, cause accidents and cause injuries. Sometimes, the injuries are debilitating, permanent, and life altering for the victims. An often ignored and sad fact is that most drivers carry woefully inadequate liability insurance to cover the full measure of injuries and damages of the most severely injured automobile accident victims. The typical automobile liability insurance coverage for a Florida driver is $ 100,000 or less, and many people drive legally everyday with no liability coverage at all. Liability coverage is not legally required for private passenger cars in Florida. Families also neglect far too often to purchase uninsured motorist coverage to “stand in the shoes” of the absent liability coverage or low limit liability insurance policy.
In cases of serious injuries, lawyers predictably resort to analyzing the accident for other potential causes, most often automobile or tire defects, negligent maintenance, and the like. An often-overlooked contributing cause of accidents is a dangerous condition on property at or near the accident site. This article is intended to outline Florida law on landowner responsibility for automobile accidents. The rules can be different for private and commercial landowners, so the responsibilities of both landowners are addressed.
Commercial Landowner Liability:
The current status of landowner liability law in Florida imposes a duty squarely upon commercial landowners to maintain their premises to permit safe ingress, egress and use of surrounding sidewalks and roadways. This duty also clearly encompasses a duty to maintain both artificial and natural conditions to satisfy this obligation to the general public.
The so-called “agrarian rule” of landowner liability provides that a landowner owes no duty to persons who are not on the landowner’s property and therefore a landowner is not responsible for any harm caused to them by natural conditions on the land. See Restatement (Second) of Torts § 363(a) (1965); 5 Fowler V. Harper et al., The Law of Torts § 27.19, at 308-309 (2d ed. 1986 & Supp.1991); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 57, at 390 (5th ed. 1984 & Supp.1988). Commentators trace the ancient origins of this rule to times when much land was unsettled or uncultivated, and the burden of inspecting it and putting it in a safe condition by the owner would have been unduly onerous and out of all proportion to any harm likely to result. See Keeton et al., supra, § 57, at 390; see also Evans v. Southern Holding Corp., 391 So.2d 231, 233 (Fla. 3d DCA 1980) (Schwartz, J., dissenting) (citing Roberts v. Harrison, 101 Ga. 773, 28 S.E. 995 (1897)). The rule was predicated upon a perceived public policy that a landowner has a right to use and enjoy his property in any manner he sees fit.” Morales v. Costa, 427 So.2d 297, 298 (Fla. 3d DCA 1983). Early supporters of the rule also reasoned that because a natural condition is by definition one which no human being created, a landowner was free from any duty to change or maintain it in order to prevent harm. See Spreche v. Adamson Companies, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, 1125 (1981).
Despite its dated origins, many courts have continued to apply the agrarian rule to bar actions in changed conditions, including those based on claims that natural or artificial conditions on a landowner’s private property constituted an unsafe condition and obstructed the view of motorists. Not surprisingly, the rapidly developing State of Florida, with its growing population and busy commercial thoroughfares, is no longer one of those jurisdictions that applies this outdated concept of landowner liability.
In 2001, the Supreme Court of Florida abandoned any adherence to the “agrarian” rule, in favor of the concepts of foreseeability. The Supreme Court of Florida, in upholding and elaborating upon the “zone of foreseeability” analysis outlined in McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), held that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. Justice Anstead wrote specifically, as those concepts apply to a commercial landowner, that conditions on a landowner’s property resulting in injuries or damages to a plaintiff off the landowner’s premises should be evaluated by the established principles of negligence law, even if the conditions on the landowner’s property are natural ones, such as foliage. Whitt v. Silverman, 788 So.2d 210 (Fla. 2001).1
In Whitt, the Supreme Court found that a service station owner owed a duty of care to pedestrians who were injured on adjacent property when struck by a motorist whose vision upon departing the station was allegedly obscured by foliage on the service station’s premises, as the owner’s conduct in permitting foliage to grow created a foreseeable zone of risk. By its very nature, the Court held, the service station involved a continuous flow of traffic entering and exiting the premises for the owner’s commercial benefit, the owner had exclusive control over foliage and landscaping on its premises, and it apparently would not have been unduly burdensome for landowners to have maintained foliage consistent with safe egress and ingress of vehicles attracted to the business and persons affected thereby.
Residential Landowner Liability:
The Supreme Court of Florida recently distinguished the potential liability and duties owed by commercial landowners from those of residential landowners in Williams v. Davis, 974 So.2d 1052 (Fla. 2007). In Williams, the Supreme Court of Florida limited residential landowner liability. Writing for the Court, Justice Anstead stated the following:
We conclude that these prior decisions can best be reconciled by a recognition that ordinarily a private residential landowner should be held accountable under the zone of risk analysis principles of McCain only when it can be determined that the landowner has permitted conditions on the land to extend into the public right-of-way so as to create a foreseeable hazard to traffic on the adjacent streets. In Hardin, we talked in terms of a landowner being free of responsibility “unless the owner has done or permitted something to occur on his lands which he realizes or should realize involves an unreasonable risk of harm to others outside his land.” 175 So. at 228. This, of course, is very similar to the foreseeable zone of risk analysis we established in McCain to determine the existence of a legal duty. Applying that test here, we can see little basis for imposing liability on the owner of a wooded residential lot for passively permitting the property to remain in its natural condition so long as the growth does not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein we concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, we find it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.
In short, while we conclude that McCain’s principles of duty should be extended in appropriate circumstances to owners or occupiers of commercial property and to other property owners who permit conditions on their property to extend into the public right-of-way, we do not believe McCain’s principles lead to a finding of duty here. While all property owners must remain alert to the potential that conditions on their land could have an adverse impact on adjacent motorists or others, we are not convinced the existing rules of liability established by our case law that distinguish conditions having an extra-territorial effect from those limited to the property’s boundaries should be abandoned.
Residential landowners, therefore, generally can avoid liability so long as they do not allow some dangerous condition on their property to extend into the public right-of-way.
The “Undertaker Doctrine” is still a potential avenue of liability upon a residential, or a commercial property owner, depending upon the facts at issue. Citing The Restatement of Torts, Section 324A, the Supreme Court of Florida has stated:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Union Park Memorial Chapel v. Hutt, 670 So.2d 64 (Fla., 1996).
As noted by the Supreme Court of Florida in Whitt, the imposition of a duty upon the landowner does not relieve the motorists of their duties of care, and the jury will, of course, be required to apportion the fault of the motorists and the landlord together with their landscape maintenance company in assessing liability in this case.
Section 768.81, Fla. Stat. contains the provisions of Florida’s Comparative Fault Statute and provides as follows:
(3) APPORTIONMENT OF DAMAGES.—In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.
(a)1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.
2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.
(b) In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.
Obviously, the comparative fault of drivers will be an issue for the jury, as will the comparative fault, if any, of the injured plaintiff, in determining how to apportion responsibility for an accident and resulting injuries. Nonetheless, Florida clearly recognizes the reality that there are often multiple factors contributing causally to motor vehicle accidents, including conditions on abutting properties.
Victims of serious motor vehicle collisions in Florida need a thorough analysis of all potential contributing causes of an accident in order to assure they have explored the liability of all legally accountable entities. This includes landowners when dangerous conditions on property or other acts attendant to property ownership contribute to a motor vehicle accident.
1 – In Davis v. Dollar Rent-A-Car Systems, Inc., 909 So.2d 297 (Fla. 5th DCA 2004), the Fifth District Court of Appeal extended this holding to non-commercial landowners, holding that the absence of similar accidents at or near the premises does not render an accident unforeseeable as a matter of law, further affirming the duty of landowners to motorists in Florida.