In Premise Liability cases in Florida, residential property owners have a responsibility to ensure that safety hazards on their land do not cause harm to guests. Homeowners with pools, for example, must take steps to protect visiting children from danger. If a danger is present, it must be clearly marked to prevent harm. Accidental drownings and other injuries related to pools are unfortunately very common in South Florida. Especially during the summertime when many children are home from school.
In the experience of the Injury and Accident lawyers at the South Florida Law Firm of Berman & Tsombanakis, LLC, you may be able to recover damages if you are injured on someone else’s property. The property owner has a duty to keep their property in a safe condition. There are many accidents that may occur when visiting someone’s home but this discussion will be focused on swimming pool accidents and the duty that the homeowners owes to both visiting children, as well as children who may trespass upon their property.
In 2009, the Florida Legislature enacted a new law designed to protect children from accidental drownings. TheResidential Swimming Pool Safety Act to reduce the number of drowning fatalities in the state. Accidental drowning was the leading cause of death in many age groups of children. Under the Act, all outdoor swimming pools must have a 4-foot fence or other barrier around the outer perimeter of the pool, with no gaps in coverage. The barrier must also be sufficiently away from the pool’s edge so a child who penetrates the barrier or fence does not immediately fall into the pool.
Many homeowners have lawsuits filed against them for pool related injuries and deaths. Not only will an individual be liable in civil court if a child is injured on their property and they are not in compliance with this law, but they may also face criminal charges. Failure to erect a safety barrier or enact other approved safety devices is a second-degree misdemeanor under Florida law.
In Florida and other states, swimming pools are viewed as attractive nuisances to small children. The Attractive Nuisance Doctrine is defined as a legal doctrine which makes a person negligent for leaving a piece of equipment or other condition on property which would be both attractive and dangerous to curious children. These have included tractors, unguarded swimming pools, open pits, and abandoned refrigerators. There have been many cases over the years involving attractive nuisances. In these cases a homeowner is still liable if a child trespasses upon their property.
The court looks for the following criteria to determine the full applicability of the Attractive Nuisance Doctrine:
- Whether the dangerous instrumentality was located in a place where the property owner knew or should have known that children are likely to trespass
- That the danger must have attracted the child onto the property
- That the property owner knew or should have known that the property poses an unreasonable risk of death or serious bodily harm to children
- That the children, because of their age, do not realize the danger of the dangerous instrumentality.
- That the dangerous instrumentality’s benefit to the property owner is small compared to the risk to young children
- That the property owner did not take reasonable steps to remove the danger or protect the child (Martinello v. B&P USA, Inc., 566 So.2d 761 [Fla. 1990]; 41 Florida Jurisprudence 2d Premises Liability section 70).