Injury on the Home Front

Money disputes are a quick way to lose a friend. So what happens in the nightmare scenario in which someone slips and falls at your home? In a perfect world, your homeowners insurance pays and all is well. 

But the insurance company might blame your friend instead—and it could be right. The party liable under Florida law depends on three things: 

• Why the guest was there.

• Whether the homeowner was reasonably careful.

• Whether the friend was using common sense.

Let’s look at the homeowner’s responsibilities first. Jeannete Lewis, a plaintiff’s personal injury lawyer at Lewis Legal Group in Fort Lauderdale, recalls the case of a young guest at a pool party. To lift herself out of the water, she grabbed a brick just above her. It was loose and fell, lacerating her face. The case settled, but the homeowner is deemed at fault in such situations. 

“A homeowner has an absolute duty to fix an unsafe condition about which they know or should know,” Lewis says, “or—if they don’t fix it—to warn others about it.” 

It’s a duty that cannot be delegated away. So, even if your plumber did a poor job fixing a leak and a visitor slips and falls two days later, you are still liable, says plaintiff’s personal injury lawyer Matthew K. Schwencke at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach.

“It really is a good law, because it ensures people who own homes do what’s reasonable to ensure it’s safe,” he says. 

It doesn’t matter if the unsafe condition is indoors or outdoors. What does matter is why the injured person was there, says Liah Catanese, a plaintiff’s personal injury lawyer at Warrior Law in Miami. 

If someone is visiting your home as a social guest, you need to warn them of anything unsafe. If they are there for a business reason—for example, a real estate agent showing your home—you must not only warn them but also inspect the property for dangers of which you might be unaware. 

On the other hand, if someone is trespassing, you don’t have a duty to take care of dangers or to give any warning. Your only duty is to prevent an intentional injury, like rigging up a device to intentionally harm a trespasser. 

The legal standard changes once again, though, if the trespasser is a child. Then, you have an obligation to secure anything that could be an “attractive nuisance.”  

“The number one situation where this is cited is with pools,” says Catanese. “Anything shiny or attractive to children that’s not covered, protected or fenced in—the owner is going to be responsible for that.” 

Though homeowners are normally at fault within these guidelines, there’s a caveat for visitors: They must be reasonably careful, too. 

If the danger is open and obvious and the injured person is competent, then they bear some blame. If there’s a sign warning you about a guard dog, don’t pet it. If there’s a bonfire in the backyard, don’t put your hands too close. 

A plaintiff’s case is also weakened if the “danger” is something they’ve avoided before, or if it could be deemed “open and obvious.” You come into someone’s home and step into a sunken living room area without a problem. Then you go to your car to get a casserole. You come back, forget about the step-down, and fall. 

“Everybody has an obligation to be aware of their surroundings,” Lewis says. “If it’s open and obvious, you should see it and appreciate the danger. So if you’ve experienced going up and down that stair, it’s not on the homeowner to warn you.” 

Todd Michaels, a plaintiff’s personal injury lawyer at The Haggard Law Firm in Coral Gables, recommends not reacting defensively if the worst happens and someone is injured at your home.

 “People should be less concerned with litigation and more concerned with doing the right thing,” he says. “Recognize this is the reason why you have insurance and let the company know you want the person taken care of.” 

If you are…

The injured party:

• Ask for the homeowner’s insurance information

• Take photos showing how you were hurt

• Identify any witnesses

• Get treatment; be honest about the severity of your injuries, but don’t speculate about the cause

• Save evidence like clothes and shoes 

• Consult an attorney before speaking with an insurance company

The homeowner:

• Read your property insurance policy; check for exclusions like dog bites

• Document the scene; don’t destroy evidence

• Alert your insurance company that a claim may be coming 

• If you’re at fault, take responsibility

*Sources: Jeannete Lewis, Matthew Schwencke, Liah Catanese, Todd Michaels