Multifamily Florida - Summer 2011 - (Page 19)

FEATURE Injuries on Your Property Defending against Res Ipsa Loquitur in Premises Liability Lawsuits by Michael Forte, Rumberger, Kirk & Caldwell, P.A. es ipsa loquitur is a Latin phrase meaning “the thing speaks for itself.”It is also the name of a rule of evidence loved by personal injury plaintiffs. Essentially, a person injured at an apartment community can try to use this rule as a shortcut to proving the community was negligent. Under this rule, a jury is permitted to “infer” negligence if the plaintiff can prove three elements: (1) The injury-producing item was within the exclusive control of the community at the time of the accident; (2) The injury was not the result of any voluntary action or contribution on the part of the injured plaintiff; and (3) The accident would not have occurred had the community used reasonable care (i) During settlement discussions, it is not unusual for premises liability plaintiffs to allude to this doctrine. For example, counsel may say, “Surely this accident would not have happened had property management been doing its job. I mean, really, the thing speaks for itself.” But as explained below, this doctrine rarely is appropriate for premises liability lawsuits. The injured plaintiff can almost never satisfy all three elements of the doctrine. R also are accessible to everyone else who comes onto the property. Florida courts frequently have analyzed res ipsa loquitur in the context of retail stores. The courts have ruled stores do not have exclusive control over items such as chairs, radios, and boxes, because each of those items on the sales floor are accessible to members of the shopping public. ELEMENT NO. 2: NO CONTRIBUTION ON THE PART OF THE INJURED PLAINTIFF Many injured plaintiffs are responsible, either in large part or small part, for causing their own injuries. In Ugaz v. American Airlines, Inc., a plaintiff was injured at an airport while walking up a non-moving escalator. She sued the county and an airline for the escalator’s negligent maintenance. The court granted summary judgment for both defendants. The court concluded res ipsa loquitur did not apply because the accident was due to the plaintiff’s decision to climb an immobilized escalator in the first place. In Hall v. Kmart Corp., a shopper who weighed between 335 and 360 pounds sat on a decorative garden bistro chair on display in the garden department. The chair collapsed, and the shopper sued Kmart. The shopper argued res ipsa loquitur applied, but the court disagreed. The court found the shopper’s injuries were the result of her sitting on a chair too small for her weight. as “but-for causation.” The question is: but for the negligence of the community, would the injury have occurred? A favorite example of this concept is the injured plaintiff who sued a driver for backing over him. The plaintiff alleged the driver was negligent in failing to look out the rear window while backing out of a parking space. But the court ruled in favor of the defendant driver because the plaintiff could not prove but-for causation. At the time of the accident, the plaintiff was squatting down behind the car, tying his shoe. So even if the driver had looked out his rear window while backing-up, he would not have seen the plaintiff anyway. At an apartment community, perhaps the maintenance crew was negligent for not painting arrows on the parking lot to indicate one-way traffic. A tenant then drives the wrong way in the parking lot and hits an oncoming vehicle. There likely would be no but-for causation if the accident happened at night and the tenant’s headlights were not turned-on. Even if the maintenance crew had painted arrows on the parking lot, the tenant likely would not have been able to see them without headlights. So the next time a claimant uses a phrase like “the thing speaks for itself,” think of res ipsa loquitur and remember how rarely it actually applies. ● Michael L. Forte is an attorney at the Tampa office of Rumberger, Kirk & Caldwell, P.A. He defends apartment owners in lawsuits throughout Florida. (i) Otis Elevator Co. v. Chambliss, 511 So. 2d 412, 413-14 (Fla. 1st DCA 1987). ELEMENT NO. 1: EXCLUSIVE CONTROL Perhaps the strongest argument against the application of this doctrine is that the community did not have exclusive control of the injury-producing item. Assume someone trips over a broken piece of sidewalk. Or falls down a flight of stairs when the handrail gives way. Or is hit by a falling tree branch. None of these items—the sidewalk, the stairs or the tree—are in the community’s exclusive control. Rather, these items ELEMENT NO. 3: ACCIDENT WOULD NOT HAVE OCCURRED IF COMMUNITY USED REASONABLE CARE Even if the injury-producing item was within the community’s exclusive control and the injured plaintiff had no role in causing the accident, could the community have done anything to prevent the accident? The concept embodied in this element is known MultifamilyFLORIDA l SUMMER 2011 l 19

Table of Contents for the Digital Edition of Multifamily Florida - Summer 2011

President Message
Legislative Update
Market Report
In the News
HUD’s Office of Healthcare Programs Making Progress in Delivering Senior Housing and Healthcare Loans More Efficiently
Is It Just Me, Or Does Everyone Seem Angry These Days?
Smart Marketing by Partnering With Corporate Housing Companies
Injuries on Your Property
Product/Service Council Directory

Multifamily Florida - Summer 2011