Not all personal injury plaintiffs are created equal, particularly in premises liability cases. It is the plaintiff’s burden to establish a duty owed by the landowner. West’s Florida Practice Series, 6 FLPRAC § 10:8 (2008-2009 ed.). The duty owed by the landowner is dependent upon the visitor’s status as an invitee, licensee, or trespasser. Byers v. Radiant Group L.L.C., 966 So.2d 506 (Dist Ct. of Appeal 2nd Dist. 2007).
An invitee is a person who has an express or implied invitation to enter or use another’s premises, such as a business visitor or a member of the public to whom the premises are held open. The occupier has a duty to inspect the premises and to warn the invitee of dangerous conditions. Cf. LICENSEE (2); TRESPASSER. A public invitee is an invitee who is invited to enter and remain on property for a purpose for which the property is held open to the public. Black’s Law Dictionary Third Pocket Edition, 2006. The landowner owes the same duty as to an invitee. A licensee is 1. One to whom a license is granted, or 2. one who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit. The landowner owes a duty to warn of hidden dangers. A trespasser is one who commits a trespass; one who intentionally and without consent or privilege enters another’s property. In tort law, a landholder owes no duty to unforeseeable trespassers.
The duty of care owed changes if the person’s status changes; a licensee becomes an invitee when the purpose changes to a business or financially oriented one. Id. Additionally, an invitee may lose status and bec ome a licensee or trespasser by going to a part of the premises beyond the scope of the initial invitation, or overstays the purpose of the initial visitation. Id. An altercation in a parking lot after some members of the visiting group does not degrade the status from invitee (see Byers v. Radiant Group, L.L.C., 966 So.2d 506 (Fla. App. 2d Dist. 2007) in which plaintiffs engaged in altercation in gas station parking lot). A sufficient change from the initial intent of the visitation may cause such a change, such as a spur of the moment change in intent from shopping to armed robbery may degrade status from invitee to trespasser. Id. A traveler whom mistakingly enters private land which appears to be a continuation of a public highway is not held as a trespasser, but is owed a duty by the owner of due care to keep the property in safe conditions for travel. Poe v. IMC Phosphates MP, Inc., 885 So.2d 397 (Fla. App. 2d Dist 2004). A reasonable mistake as to the nature of the property or the reason of the person’s presence may excuse trespass.
An invitee is a licensee on the premises by invitation, either express or reasonably implied, from the owner of the property. Breaux v. City of Miami Beach, 899 so.2d 1059 (Fla. 2005). The duty owed to an invitee by a government agency is that to keep the premises in a reasonably safe condition, warning the public of any dangerous conditions of which the government entity knew or should have known. Id. A business invitee is permitted entry for reasons connected to business dealings with the possessor of the land either directly or indirectly. Moultrie v. Consolidated Stores Intern. Corp., 764 So.2d 637 (Fla. App. 1st Dist. 2000). The duty owed to a business invitee is that of reasonable care in maintaining premises in a reasonably safe condition, and to give timely notice or warning of latent and concealed perils. Id. Concealed perils are those which or under the reasonable exercise of due care would be known to the owner, but would not be known by the invitee under the exercise of due care. Id. There is no duty to provide notice or warning of an open and obvious danger. Id. Whether or not a danger is open and obvious is often a question of fact for the jury (In Moultrie a jury question remained as to if an empty wooden pallet in an isle of a Big Lots store constituted an open and obvious hazard or if due to the limited height and the fact that the average adult shopper may not be paying attention to the ground it was not open and obvious). Id. A duty is owed by the landowner for the creation of a foreseeable risk. 6 FLPRAC § 10:8. If the risk is foreseeable may be a question of law for the judge. Moultrie v. Consolidated Stores Intern. Corp.
While a public invitee is a licensee on the premises by virtue of invitation of the owner, an uninvited licensee enters the property solely for his or her own convenience without permission either expressed or implied. Barrior v. City of Miami Beach, 698 So.2d 1241 (Fla. App. 3d Dist. 1997). Likewise, a trespasser enters without license or permission of the owner for his or her own purpose or convenience, or loiters without an apparent purpose other then the satisfaction of his or her own curiosity. Id. Entering a public place outside of the hours of operation renders the person an uninvited licensee. Id. The duty owed to an uninvited licensee is that to refrain from wanton negligence or willful misconduct which would bring injury to the uninvited. Id. The landowner owes a duty to not intentionally expose the uninvited to danger and, if the person’s presence is to become known to the owner, to warn of dangers which are not open to ordinary observation by a licensee. Id. That the court in Barrior stated the dangers must not be open to ordinary observation by a licensee suggests that if the reason such was not observable by the uninvited is related to the reason the person is an uninvited licensee as opposed to a licensee (such as the darkness of night concealing a hole which would have been easily observed during the day) that there is no duty to disclose.
A licensee is upon the land by permission of the owner, but not for the (often financial) benefit of the owner such as a friendly visit. The duty owed to a licensee is that of reasonable care to warn of dangers of which the owner knows or should know. Improved Benec. And Protected Order of Elks of World Inc. v. Delano. 308 So.2d 615 (Fla. App. 3d Dist. 1975). The owner owes a duty to a licensee to maintain grounds. Id.
A landowner owes to a trespasser the same duty as to an uninvited licensee. Dyals v. Hodges 659 So.2d 482 (Fla. App. 1st Dist 1995). The duty owed to a trespasser is that to avoid wanton injury to trespassers. Id. If the trespasser’s presence becomes known to the landowner a duty to give warning of any known dangerous conditions not open to ordinary observation arises. Id. Though knowledge of a trespasser’s presence negates their status as a trespasser, a landowner owes no duty to search for trespassers. Lynch v. Florida Cent. R. Co., Inc., 683 So.2d 557 (Fla. App 5th Dist. 1996).
The general rule is that a landowner is not liable for injuries caused away from the premises or by the acts of intervening third parties. 6 FLPRAC § 10:8. Liability may be established for off premises incidents or by injuries caused by intervening third parties when such injury is reasonably foreseeable to the owner or possessor of the land as determined by the particular facts and circumstances of the case. 6 FLPRAC § 10:8. Foreseeability is key to determining the scope of duty placed upon a landowner. McCain v. Florida Power Corporation, 593 so.2d 500 (Fla. 1992). A legal duty exists when an actor creates a generalized and foreseeable risk to others. Id. The duty established by the creation of a foreseeable risk is that to take sufficient precautions to protect others from harm. Id.
Generally, no duty is owed to persons off the premises of the landowner; the duty does not extend from the land to adjacent highways. Id. However, if the owner has either taken action or permitted action off of his or her land to be taken that he or she does or should realize involves an unreasonable risk of harm, a duty exists. Id. If a landowner exercises control over property he or she does not own, such as an adjacent lot, or invites the use of property he or she does not own, the landowner’s duty extends to the unowned land. Duty also extends if the landowner has created a foreseeable zone of risk to those not on the owned property.
In Holiday Inns, Inc. v. Shelburne (576 So.2d 322 Fla. App. 4th Dist. 1991) two patrons of a bar within the hotel were involved in a shooting in an adjacent parking lot (not owned by the bar or the hotel) that harmed a third party victim; duty was not denied because the evidence supported the shooting was foreseeable, that due to the insufficient parking provided external parking was necessary, a jury could find the franchisor liable for failure to provide adequate security, and a jury could find apparent authority of the franchisee to act for the franchisor. 6 FLPRAC § 10:8.
If control or apparent ownership is exercised over the land, by inviting others to utilize the land in a particular manner, the duty of a landowner extends. 6 FLPRAC § 10:8. Thus the operations of a business may extend beyond the physical boundaries of the owned property. 6 FLPRAC § 10:8. A duty of reasonable care may be extended beyond the physical boundaries of a business when it is reasonable for the invitees to believe the invitor controls the adjacent premises or where the invitor knows the invitees customarily use the adjacent premises in connection with the purposes of the invitation.
A night club may owe a duty to a patron killed while crossing the street from off site parking to patron the club when the club offered “woefully insufficient parking.” Johnson v. Howard Mark Productions, Inc., 608 So.2d 937 (Fla. App. 2d Dist 1992). The reason in the above for use of parking across a busy highway was that there was insufficient parking offered by the night club.
A duty also extends to the ingress and egress of a property, in Thunderbird Drive-In-Theater v. Reed by and Through Reed case remanded for injury outside of the premises in which a motorcyclist was struck by a pickup truck exiting defendant’s facility; jury questions remained as to if the theater possessed a duty to provide for traffic directing personnel to alleviate end of show congestion and if such a failure was the cause of the injury. 6 FLPRAC § 10:8; Theater v. Reed by and Through Reed, 571 so.2d 1341 (Fla. App. 4th Dist. 1990).
As a general rule, no duty is extended from the land owner for maintenance of sidewalks adjacent to owned property. 6 FLPRAC § 10:8; Woods v. City of Palatka, 63 So.2d 636 (Fla. 1953); Jones v. Charles, 518 So.2d 445 (Fla. App. 4th Dist 1988). Maintenance of sidewalks is that of the city. 6 FLPRAC § 10:8; Woods v. City of Palatka, 63 So.2d 636 (Fla. 1953); Jones v. Charles, 518 So.2d 445 (Fla. App. 4th Dist 1988). No duty is owed by a landowner to retard root growth of plants adjacent to the street. Sullivan v. Silver Palm Propert ies Inc., 558 So.2d 409 (Fla. 1990) (Plaintiff passenger in vehicle alleged driver lost control due to bump in road caused by tree root).

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