Commercial property owners are at a constant risk of claims arising out
injuries by invitees, customers, patrons and others visiting their property.
Tripping over uneven sidewalks and slipping on foreign substances on the
floor of a building are common causes of injuries resulting in liability.
But what happens when someone is injured when they cut across the lawn
in front of a building and fall in a hole or they trip over roots from
a tree or bush in the landscaping?
The good news, commercial property owners in Florida have less exposure
now than ever to claims arising out of injuries suffered by patrons injured
by property landscaping. But they are not entirely out of the woods.
Sherwin Wolf v. Sam's East, Inc. dba Sunrise Sam's Club, the Fourth District Court of Appeal recently held that a patron who cut
across landscaping area located between his parking spot and the Sam's
Club entrance and tripped on a tree root injuring himself could not sue
Sam's Club for his injuries. The Court held that while a landowner
or occupier owes an invitee two independent duties: (1) to maintain the
premises in a reasonably safe condition, and (2) to give warning of concealed
perils, an owner or possessor of land is not liable for injuries to an
invitee caused by a dangerous condition on the premises when the danger
is known or obvious to the injured party, unless the owner or possessor
should anticipate the harm despite the fact that the dangerous condition
is open and obvious.
The Court went on to hold that the existence of a concrete walkway available
for the patron to gain access from the parking lot to the store entrance
excused the landowner from liability since the patron is deemed to have
knowledge of the potential hazard of walking in the landscape area even
if he did not know of the precise hazard. However, the court recognized
the possibility that if the area was "apparently intended for walking"
then the outcome could be very different.
This raises a very important consideration for commercial property owners.
It is not uncommon for commercial properties to have a barrier of shrubs
or ground cover between a parking area and a building entrance. Often,
over time, customers or tenants create their own path of travel through
and over the shrubs or groundcover sometimes even placing their own stepping
stones or cutting away a portion of the shrubs. Once this occurs, even
if not by the landlord or directly authorized by the landlord, the unauthorized
path of travel becomes a potentially "intended" path for walking.
Property owners should be vigilant in removing and closing off any and
all unauthorized and unintended paths of travel on their property so as
to avoid litigation. The cost to remove the stepping stones and replace
a plant or two on the property will be far less expensive than the cost
of defense, settlement or judgment if a claim for injuries is asserted.
Alex P. Rosenthal, Esq.
Rosenthal Law Group
2115 North Commerce Parkway
Weston, FL 33326