.

Defense Digest

A Recent and Thorough Discussion of Negligence and Premises Liability in Florida by the Second District of Florida

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Robert Ely Williams

Key Points:

  • Property owner is not, by that status alone, responsible for injuries caused solely by a tenant or lessee’s activities on the property.
  • Property owner’s right to enter leased premises is not sufficient to constitute control over property so as to impose duty on landlord to protect third parties, even where property owner may have been able to generally instruct people not to do certain activities.

It happens all the time. A complaint comes in, there are several counts with several theories of liability seeking damages for personal injuries, seemingly based on the simple fact that the named defendant(s) own the property. In a lengthy discussion on the theories commonly (and sometimes uncommonly seen), the Second District Court of Appeal in the case of Ruiz v. Wendy’s Trucking, LLC, et al., 2022 WL 4389879 (Fla. Dist. Ct. App., Sept. 23, 2022), affirmed a summary judgment in favor of the defendant property owner faced with such theories.

The plaintiff, Antonio Ruiz, was severely injured while performing maintenance on a commercial truck owned by a third party, Wendy Carbrera, in a parking lot owned by the defendants, Roberto and Jesus Garcia. The Garcias hired a third party, Eglisbel Ginarte, to find truck owners to enter into leases for parking spots on a portion of the lot. At the time of the accident, there was no written lease agreement between Carbera and the Garcias.

The plaintiff’s operable complaint alleged that the Garcias, as the lot owners, had a non-delegable duty to maintain their premises in a reasonably safe condition and to prevent unreasonable and dangerous activities on the lot. After several depositions, with varied testimony regarding the repair work on the property, the Garcias filed a motion for summary judgment, arguing there was no evidence that the condition on the property caused the accident. They also argued the plaintiff was a licensee on the property (such that the duty of reasonable care did not apply).

The plaintiff responded to the motion for summary judgment, arguing that there was a disputed material fact as to whether the Garcias created a foreseeable zone of risk by permitting the repairs on their lot without proper safety measures. They also argued that the Garcias owed the plaintiff a duty of reasonable care under the ordinary negligence standard because the accident, based on testimony and evidence, was a result of their active or passive negligence rather than a defective condition of the lot.

The trial court ruled that there was no duty owed to the plaintiff based on the facts of the case, which involved a truck that had been permitted to be parked on the lot. The plaintiff appealed to the Second District Court of Appeal, which affirmed that the Garcias, as property owners, did not owe a duty to the plaintiff.

In its discussion of the plaintiff’s ordinary negligence liability/premises liability theories, the court addressed the plaintiff’s “active” negligence theory by finding that there was no active negligence by the Garcias as property owners because the accident (the truck breaking loose from whatever was holding it in place and running over a person) could have happened anywhere. Had it happened off the Garcias’ property, then the plaintiff would have had no basis to sue the defendants. There was no evidence that this was a case where the property owner or one of his/her agents operated equipment on the property and created a dangerous condition.

The court then turned to the plaintiff’s allegation that the Garcias failed to prohibit mechanical repairs on the lot or implement safeguards regarding same, which it considered to be an allegation of “passive” negligence under both the ordinary negligence theory and premises liability theory. Even if the plaintiff was considered an invitee, the same standard of reasonable care applied under both of these theories.

The court distilled the plaintiff’s argument as follows: that the Garcias owed the plaintiff a duty to prevent mechanical work from being performed on the lot by its lessees or invitees without having safeguards in place. The court ruled that there was no known dangerous condition because it was undisputed the lot was being used for parking, and the Garcias did not create a dangerous condition by owning the lot and allowing trucks to park there. The court specifically indicated that, if a dangerous condition was created by the mechanical work on the lot, the Garcias had no involvement in it because the condition was created by truck owners (lessees), who had requested such work to be done on the lot or by truck mechanics (the plaintiff), who had opted to perform work on the lot themselves.

The plaintiff further argued that the right to control the property by the Garcias (the right to enter the property and stop people from working on the trucks) was a factual issue to be determined by the jury, such that a genuine material issue of fact prohibited entry of summary judgment. The court found that even though the Garcias may have been able to generally instruct people to stop performing mechanical work on the lot, this did not render them in control of their lessees’ (i.e., owners of the trucks who lease parking space from the Garcias on the lot) operations and activities.

Defending these type of cases necessarily involves navigating a response to all attempts by plaintiffs’ attorneys to establish a duty of care on the part of a property owner under Florida case law. The Second District Court of Appeal’s analysis and holding in Ruiz provides a roadmap for evaluation of the heavily fact-dependent question of property owner liability.

Firm Highlights

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.