Injury on Premises or Property

As discussed within the automobile coverage section of this site, there are “third party” (liability) claims, brought or made by someone not an insured against someone insured under the particular insurance policy, and “first party” (coverage) claims, brought by an insured against his, her own insurance company.

For property owners, liability coverage (“Coverage E” on the typical homeowners policy) protects them for their negligent acts both on and off the insured premises which cause loss or injury to another person. (There are, as with all insurance coverages, definitions, exclusions and conditions which limit the scope of coverage.) Common liability claims are falls or other injuries suffered on the insured premises.

The owner or person in possession (usually a tenant) of real property (land or building) must keep such premises in a reasonablysafe condition. If a person is injured on or by a condition of the property of another, whether through the action or lack of action of the property owner or a tenant, the injured person may recover damages from the property owner and/or tenant. The typical claim of this type involves a “slip and fall” in a store or other business. Recently, the law in Florida changed with regard to the proof necessary to recover from abusinessowner for a “slip and fall” injury. Effective July 1, 2010 house bill no. 689, which is Florida Statute, section 768.0755, requires that an injured person prove that the business establishment had actual or constructive knowledge of the dangerous condition (e.g., substance on the floor), and therefore should have taken action to remedy it. No longer will it be enough for the plaintiff to merely prove that he or she slipped on a transitory substance, and then see if the defendant property owner can establish that it exercised reasonable care under the circumstances. If the plaintiff is unable to prove that the business had actual or constructive knowledge (should have known) of the transitory substance, the claim will fail.

It is not only businesses which harbor dangerous conditions that can cause injury to a guest or visitor. Many private homes contain dangerous conditions or hazards that cause injury, including differences in floor levels which are not easily seen or observed, loose rugs or carpets which slide or bunch up, slippery tile or other floor surfaces, glass doors that are not readily visible, dogs or other pets that bite, guns or other weapons which are not secured properly, swimming pools that are not fenced (or inadequately fenced).

NOTE: In addition to liability coverage, most property insurance policies provide a limited amount of Medical Payments Coverage (“Coverage F” on the typical homeowner’s policy) which, without regard to any finding of fault, pays for the reasonable medical expense of a person (other than an insured or regular household member) injured on the insured premises. The coverage amount is generally $5,000, but may be increased. Property policies generally also provide “first aid expense” coverage, to reimburse the reasonable expenses in administering first aid to someone injured on the insured premises other than a named insured.

NEGLIGENT SECURITY - Another common property liability claim premised on the property owner having been negligent in providing security (e.g. patrolling personnel, adequate lighting, working locks), which failure causes or contributes to injuries suffered as a result of an attack or assault on a person who is a lawful visitor or guest of the business or privately owned property. To be successful in negligent security litigation, evidence typically includes documentation of past attacks on the premises, documentation of the level of criminal activity in the area, as well as security expert testimony concerning the inadequate security on the property.

DOG BITES - Many property insurance claims are for injuries suffered when a dog owned or cared for by the property owner bites a guest, or an individual lawfully on the premises. Florida has a “dog bite statute” which imposes strict liability on the owner of a dog “that bites any person while such person is on or in a public place, or lawfully on or in a private place …” There is no requirement that the owner or keeper of the dog know of the dog’s biting nature or propensity. A property owner is protected, however, if a “bad dog” sign is posted on the property which is easily readable. Also, if the person bitten provokes or causes the attack, that person may be found by a jury wholly or partially at fault, unless the person bitten is a child age 6 or under, who may not be found negligent. The person having care or custody of the dog is considered the owner for purposes of the statute, and the parents of a child under age 18 are responsible for injury caused by a dog owned or cared for by their child.

Many property insurance claims are for injuries suffered when a dog owned or cared for by the property owner bites a guest, or an individual lawfully on the premises.  Florida has a “dog bite statute” which imposes strict liability on the owner of a dog “that bites any person while such person is on or in a public place, or lawfully on or in a private place …”  There is no requirement that the owner or keeper of the dog know of the dog’s biting nature or propensity.  A property owner is protected, however, if a “bad dog” sign is posted on the property which is easily readable.  Also, if the person bitten provokes or causes the attack, that person may be found by a jury wholly or partially at fault, unless the person bitten is a child age 6 or under, who may not be found negligent.  The person having care or custody of the dog is considered the owner for purposes of the statute, and the parents of a child under age 18 are responsible for injury caused by a dog owned or cared for by their child.

LIBEL AND SLANDER - Although not a physical injury, damage to reputation, personal or business, is commonly insured by endorsement to a standard property policy. Many property insurance policies cover, by endorsement, “personal and advertising injury”, which protects an insured from claims for alleged defamation, whether written (libel) or verbal (slander). This coverage, if purchased, applies as well to claims of false imprisonment against an insured. In Florida, as in most states, to establish a cause of action for defamation (libel or slander) requires proof of the following elements:

1. The publication of the defamatory statements, whether verbal or written;
2. The falsity of the statements;
3. That the statements were made knowing they were false, or with “reckless disregard” to whether they were false if regarding a public official, or negligently if they are made as to a private person;
4. That actual damages, not speculative, are suffered as a result of the published false statements;
5. That the statements are defamatory, and not true.

Under Florida and Federal law, “pure expressions of opinion” are not defamatory, and are protected free speech under the First Amendment. Determining whether statements constitute pure opinion or “mixed opinion”, which is actionable, is not an easy matter however, and the the totality of the statements and the context in which the statements are used. Of course, some statements may not be defended as pure opinion, if their malicious nature is evident, and the statement(s) are false.