Property owners and managers owe a duty of care to guests (and, in some cases, youthful trespassers) to ensure the site is reasonably safe for those who enter. Any dangerous conditions need to be either resolved or else those who enter should be warned.
But these requirements can be a bit complicated when we’re talking about government-owned property. There are a few statutes that may impede one’s effort to obtain compensation through a Florida personal injury lawsuit.
The first is the Federal Tort Claims Act, which holds that government entities are generally immune from injury litigation unless the entity has waived that protection (per 28 U.S. 1346(b)). In Florida, there is also F.S. 768.28, which waives sovereign immunity in tort actions in certain circumstances. Beyond that, there is F.S. 375.251, which limits a person’s ability to pursue legal action against land owners (including government entities) that open their property to public use for free recreational purposes.
This is not to say that recovery is impossible. However, it is difficult, and you must carefully choose a Florida personal injury attorney who is prepared for the extra preparation and work it will take to successfully pursue a case like this.
That brings us to the case of Alana M. v. State of California, which tragically involves traumatic brain injury of a 3-year-old girl, who was hurt while camping in a state park. A large tree fell onto her tent when she was inside.
A guardian ad litem representing her interests filed a lawsuit on her behalf, alleging premises liability and dangerous condition on public property. Specifically, plaintiff argued the state was negligent in failing to warn of the danger of falling trees and also in addressing the danger of this specific tree, which was rotting and displayed other indications it was unsafe (i.e., a hatchet wound, a cavity and poor taper). Plaintiffs argued the state knew or should have known of the structural defects of the tree that fell and injured her.
State moved for summary judgment on grounds it was immune from liability under a California law that limits liability for injury caused by a natural condition of any unimproved public property. Many states have laws on the books like this, though Florida is not one.
In opposing this motion, plaintiff argued there was a dispute of genuine material fact as to whether the tree was on improved or unimproved public property. There was a picnic table nearby, and it was part of an area that the state had designated for camp sites, which involved the set up of various amenities in and around the existing trees. Additionally, plaintiff pointed to a Tree Hazard Program established by that involved biannual inspection of trees within developed areas of the park – and which included the tree that fell on plaintiff.
Trial court granted summary judgment to defense.
In its review on appeal, the California appellate court took note of prior case law that indicated in order for public property to be considered “improved,” it had to have incurred some form of physical change to the condition of the property at the location of the injury. The court found unavailing plaintiff’s argument that the presence of amenities made it more likely humans would be present when the tree fell. The court found that case law is clear that amenities do not undo the “natural condition” immunity for areas that aren’t improved – and there was nothing the state did to alter the condition of the tree in question.
If plaintiff’s argument were to prevail, appellate court ruled, it would “seriously thwart accessibility and enjoyment of public lands by discouraging construction of restrooms, fire rings, camp sites, entrance gates, parking areas and maintenance buildings.
If you have been injured in Fort Lauderdale, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Alana M. v. State of California, March 29, 2016, California Court of Appeal, First Appellate District, Division Three
More Blog Entries:
Injury Lawyer in Bike Accident Seeks Compensation, Jan. 17, 2016, Fort Lauderdale Personal Injury Attorney Blog