Can an uncommon design or mode of construction that creates an “optical illusion” on property create an issue of fact for a premise liability claim?  According to the Third District Court of Appeal in Echevarria v. Lennar Homes, LLC, 45 Fla. L. Weekly D1567a (Fla. 3d DCA 2020), the answer is yes.

When it comes to a premise liability claim: “‘A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.’”  Echevarria, supra, quoting Racamonde v. Marshalls of Ma., Inc, 56 So.3d 863, 865 (Fla. 3d DCA 2011).

In this case, the plaintiff was visiting a model home from a homebuilder.  As she was exiting the home, she could not see the step down from the raised front porch to the adjacent walkway.  The plaintiff claimed this created a dangerous condition that she should have been warned about because it created an optical illusion  as “the [adjacent] walkway and [raised] porch were both ‘covered by the same colored brick pavers’ and the porch ‘blended in perfectly with the adjacent walkway, making the step invisible to the naked eye as you exited the home.’”   Both the plaintiff and homebuilder provided expert reports as to the condition.  One of the plaintiff’s experts opined that the landing of the adjacent walkway at the stair was not compliant with Florida’s building code and, as such, this concealed the step’s presence, i.e., created the optical illusion.  Notwithstanding, the trial court granted summary judgment against the plaintiff finding that the condition was open and obvious and not inherently dangerous.

The Third District Court of Appeal reversed finding there was a question of fact for the jury whether the homebuilder “through an uncommon design or mode of construction, created a hidden danger on its property [i.e., an optical illusion] that a prudent invitee would not anticipate.”  Echevarria supra.   The reason being is that “‘an uncommon design or mode of construction creating a hidden danger that a prudent invitee would not anticipate may transform multiple floor levels into an inherently dangerous condition.’”  Id. quoting Rice v. Whitehurst, 778 So.2d 1027, 1028 (Fla. 4th DCA 2001).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.



UnknownPremise liability claims are a concern to persons engaging a contractor (a business invitee) to perform renovation, maintenance, or repair work on property they own or lease.  These are claims where a person injures himself / herself on another’s premises and sues the owner (and/or tenant) under theories grounded in negligence.  “The crux of a cause of action for premises liability is not the ownership of the premises, but the negligence of the possessor in permitting [business] licensees and invitees to come unwarned to an area where they could foreseeably be injured by a dangerous condition which is not readily apparent.” Phillips v. Erican Manufacturing & Machine, Inc., 40 Fla. L. Weekly D103a (Fla. 5th DCA 2014) quoting Houssami v. Nofal, 578 So. 2d 495, 496 (Fla. 5th DCA 1991).


In a negligence case, a plaintiff needs to prove the following four elements:


  1. the defendant owes the plaintiff a duty of care;
  2. the defendant breached that duty;
  3. the defendant’s breach of that duty proximately caused damage / injury to the plaintiff; and
  4. the plaintiff suffered damage / injury.

In premise liability claims, an issue oftentimes turns to the very first element, that being whether the defendant (e.g., property owner or tenant) owed the plaintiff (e.g., injured person) a duty of care.  If the defendant did NOT owe the plaintiff a duty of care, there can be no negligence claim.


The Duty of Care in a Premise Liability Claim


In Phillips, a company was hired to clean and paint a warehouse’s corrugated metal roof that included cleaning and caulking skylights on the roof. As a worker was working on the roof, he fell through a skylight that had been concealed as it was painted the same color as the roof.  While the skylight at-issue was visible from inside the warehouse, it was not visible from the exterior due to the paint.  The injured worker sued the owner (amongst others) in a premise liability claim.


As reflected in a prior posting also dealing with an injury from a skylight, an owner that hires an independent contractor is typically not liable for injuries to the contractor’s employees unless: a) the owner was actively participating in the construction in that the owner directly influenced the manner in which the work was performed or b) the owner failed to warn the independent contractor of latent defects / perils that were either known or should have been known to the owner and which were not known by the independent contractor and could not have been discovered by the contractor through the exercise of due care


This goes to the duty (first element in a negligence action) that an owner owes an independent contractor or any business invitee that an owner invites on his/her premises.


Because the painted skylight was not visible from walking on the roof, the issue was whether locating skylights solely from the roof was a reasonable inspection or whether the contractor should have also located skylights from inside the warehouse.  If the contractor should have located skylights from inside the warehouse, then the contractor could have discovered the concealed peril (painted skylight) with due care, thereby defeating his premise liability claim.  The Fifth District found that this was an issue for the jury.


What about this twist.  The warehouse was leased to a company the owner was an officer of.  Could the tenant be liable for premise liability claims?  How about the owner if the tenant is the one utilizing the property and invited the contractor on the property?  This is important because if a party does NOT possess or have control over the premises, and specifically the requirement to perform maintenance and repairs to the premises, then that party owed no duty of care and should not be liable for a premise liability claim.  The Fifth District explained:


In cases like this, where the facts involve a leased premises, the extent of responsibility for injuries occurring on the leased premises during the term of the lease depends on the extent the owner of the property maintains control over the premises. When the landlord and tenant have a lease that expressly sets forth which party has the power to possess and control the property during the term of the lease, the issue of control is a matter of law.”

Phillips, supra (quotations and internal citations omitted).


Notably, if a lease allows the tenant to make improvements or repairs subject to the owner’s approval, the owner will be deemed to have sufficient possessory interest or control over the leased property to owe a duty to a business invitee. See Russ v Wollheim, 915 So.2d 1285 (Fla. 2d DCA 2005).


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.



Unknown-1Injuries are always a concern on construction projects due to the inherent risks associated with performing work on a project.  Owners, in particular, should be concerned with injuries on their project because they are sometimes sued for negligence under theories of premises liability when injuries are sustained on their project.


In order to best allocate the risk of injuries, owners should, among other things, contractually (i) specify that the contractor is performing work as an independent contractor, (ii) specify that the contractor is solely responsible for its means and methods of construction, (iii) specify the contractor’s scope of work, especially if the scope is unrelated to new construction, but involves a remediation, renovation, repair, or maintenance scope, and (iv) include other provisions concerning the contractor’s responsibility for safety.  This is beside the owner ensuring that the contractor has sufficient liability insurance and workers compensation insurance prior to the contractor performing any work.


The case of Strickland v. Timco Aviation Services, Inc., 36 Fla. L. Weekly D1420a (Fla. 1st DCA 2011), discusses an owner’s potential liability for injuries sustained to its contractor’s employee.  In this case, an owner hired a contractor to pressure wash the roof of an airplane hangar and perform maintenance to the skylights on the roof.  While the contractor’s employee was pressure washing the roof, he accidentally got chemical in his eyes causing him to step on a skylight and fall five stories to the ground.  The employee sued his employer (the contractor) in addition to the owner alleging that the owner was negligent because, among other reasons, the skylights could not withstand 200 pounds of pressure and were indistinguishable from the roof.


The First District Court of Appeal, in examining an owner’s liability for injuries, maintained:


Generally, a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of the work.  However, there are two exceptions to the general rule.  An owner can be held liable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition.  Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors. See Timco (internal citations omitted).


Under the first exception, an owner can be liable if it imposes “such right of supervision or direction that the contractor is not entirely free to do the work his own way.”  See Timco quoting City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).


Under the second exception, an owner can be held liable if the owner negligently creates or negligently approves the dangerous condition causing the injurySee Timco quoting City of Miami, 509 So.2d at 346.  However, even under this exception, an owner “will be held liable for negligence only with regard to those dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care.”  See Timco citing Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla. 1953).


In Timco, the First District affirmed summary judgment in favor of the owner holding the owner not liable for the contractor’s employee’s injuries.  The Court held that the danger of falling through the skylights was an obvious risk considering the contractor was hired to perform maintenance and repair work to the skylights.  The owner did not have any duty to notify the contractor  of the risks posed by performing work on the skylights since this was an integral part of the contractor’s scope of work.  Further, the Court held that the owner had no liability due to the employee’s argument that the skylights could not withstand 200 pounds of pressure because there was nothing to suggest the owner knew or should have known of this alleged design defect.


The risk of injuries is one of the many risks that owners consider when hiring a contractor to perform work — any scope of work — on their project. Ensuring that such risks are contemplated and best allocated is vital and a chief reason why attorneys should be utilized in the drafting of construction contracts.  If an owner has knowledge of a dangerous condition on their property, they should warn and notify the contractor they are hiring as well as their attorney so that this risk can be addressed in the contract.  Notwithstanding, an owner should certainly not engage in any specific act during construction or immediately prior to construction that can cause or increase the risk of injury on their project.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.