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Denise Nicholson v. Stonybrook Apartments, LLC, Case No. 4D12-4462 (4th DCA)

In Nicholson, the plaintiff appealed a judgment following an adverse jury verdict. The plaintiff was shot in the leg by a third-party while attending a party at the defendant apartment complex's common area. The plaintiff sued the apartment complex for negligence arguing the complex failed to maintain its premises in a safe condition and failed to provide adequate security. The apartment complex argued that its duties to the plaintiff were limited because the plaintiff was a trespasser at the time she was shot. The plaintiff asserted that her status on the land was irrelevant because her lawsuit was founded on ordinary negligence and not premises liability. The trial court agreed with the defendant, and permitted the jury to consider the plaintiff's status as a discovered trespasser in rendering its verdict.

The Fourth District began by distinguishing ordinary negligence from premises liability. In ordinary negligence cases, "the defendant owes the plaintiff a duty of reasonable care, regardless of the relationship between the defendant and plaintiff." In premises liability cases, "the defendant's duty to the plaintiff is dependent on the plaintiff's status to the land." Under Fla. Stat. 768.075, "in a premises liability case, the only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, and the only duty it owes to a discovered or 'known' trespasser is to refrain from gross negligence/intentional harm and to warn of known conditions that are not readily observable by others."

The Fourth District further noted that there are instances where a landowner may be liable under ordinary negligence, in which case the injured party's status on the land is irrelevant. Such scenarios result when the trespasser is injured as a result of the landowner's active conduct as opposed to a condition of the premises. The Fourth District explained that no Florida court had considered whether negligent security cases are governed under standards of premises liability or ordinary negligence. First, the court identified several cases support the conclusion that negligent security cases fall under the umbrella of premises liability. Second, the court found that negligent security cases logically should fall under the umbrella of premises liability. Ordinary negligence involves active negligence (tortfeaser does something to cause harm) whereas premises liability involves passive negligence (the tort easer's failure to do something causes harm). Negligent security cases concern the landowner's failure to keep the premises safe and secure from foreseeable criminal activity; thus, it sounds in premises liability and not ordinary negligence. Accordingly, the Fourth District ruled that negligent security cases are governed by premises liability and not ordinary negligence.

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