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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

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Delaware Superior Court Clarifies Pleading Standard for Legal Malpractice Claims

In the matter of Edelstein v. Kirschner, No. N25C-09-018 FJJ, 2026 Del. Super. LEXIS 45, at *1 (Super. Ct. Jan. 29, 2026), the plaintiff law firm sued its former client for unpaid legal fees in the amount of $4,399.35. The former client asserted a counterclaim alleging legal malpractice. More, specifically, the former client claimed that his lawyer committed malpractice be recommending that he settle an underlying lawsuit by entering into a stipulated judgment for an excessive amount with interest that was accruing at “an outlandish” interest rate. The law firm moved to dismiss the counterclaim on the basis that its former client had not alleged facts reflecting that he could prove the case within the case. That is, facts reflecting that his attorneys caused him to lose the underlying case. The Superior Court held that while a legal malpractice plaintiff in cases arising from underlying litigation must prove the case within the case to survive a summary judgment motion, he does not need to plead facts reflecting as much in order to survive a motion to dismiss. While this case addresses the pleading requirements of a legal malpractice case in Delaware, it also serves as reminder that chasing unpaid legal fees from a former client can often give rise to a legal malpractice counterclaim. Attorneys seeking to collect unpaid legal fees should ensure that the fees they seek are for a significant amount, which would be recoverable if a judgment is obtained. Otherwise, the effort could backfire.

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.