Latest News

Unauthorized Occupants: What Status Do They Hold in Premises Liability Claims?

(NOVEMBER 30, 2020) - When a lawsuit arises from an injury that occurs as a result of a dangerous condition on another’s property, this type of claim is called “premises liability.”1 Normally, those in possession or control of real property (aka a “possessor”) owe a duty of care to individuals who access such property. In all but a handful of states, this duty is ultimately dependent on the plaintiff's status on the land. In these jurisdictions, generally the only duty possessors owe to undiscovered trespassers is to refrain from “willful and wanton conduct”2 or “intentional misconduct.”3 Absent specific evidence, this is a very difficult standard for plaintiffs to overcome. 

Oftentimes, however, it is not always clear under what circumstances an injured party may be considered a trespasser; particularly when the injury occurs at an apartment complex. Notably, it is unclear what status a plaintiff holds when he/she is injured while living at – or otherwise occupying – an apartment without authorization from the landlord. Individuals who fall into this category are frequently referred to as “unauthorized occupants.”

The U.S. Department of Housing and Urban Development defines an “Unauthorized Occupant” as “a person who, with the consent of a tenant, is staying in the unit, but is not listed on the lease documents or approved by the owner to dwell in the unit.”4 An example of an unauthorized occupant would be a tenant’s significant-other who moves into the apartment without the consent of the landlord. Another example would be a person paying or otherwise compensating a tenant to “rent out” all or part of an apartment without the landlord’s knowledge or permission.

Conversely, the U.S. Department of Housing and Urban Development defines a “guest” as “a person temporarily staying in a unit with the consent of the tenant or another member of the household who has express or implied authority to consent on behalf of the tenant.”5 Although landlords do not expressly invite guests onto their property, it is generally accepted that guests receive an “implicit” invitation as it should reasonably be expected that tenants may invite people to visit or temporarily stay at their apartment.6 As a result, in nearly all jurisdictions, social guests are afforded the same duty as tenants and other invitees.

However, logic dictates under most circumstances that an unauthorized occupant cannot reasonably be said to have received an implied invitation from the landlord. This is particularly true in cases where the unauthorized occupant fails to benefit the landlord or where his or her occupancy violates a law. Nonetheless, because an unauthorized occupant receives an express invitation from the tenant, these individuals do not always meet the threshold for most state’s common law and statutory definitions of a trespasser.   

Consider the state of Florida for example. There, the standard jury instruction defines an “invitee or invited licensee” as “[a] person [who] is invited on land or premises of another when he enters or remains there at the invitation of the owner or possessor.”7 Here, because the invitation must come from the possessor, an unauthorized occupant should not be held to this status. However, Florida Statute also defines an “undiscovered trespasser” in pertinent part as “a person who enters property without invitation, either express or implied…”8 Further, the statute defines the term “invitation” as meaning “that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” Notably, as the statute is silent as to whom the invitation must come from, the unauthorized occupant’s status arguably fails to meet the legal standard for a trespasser. While it is tempting to merely dismiss this ambiguity as “an issue of fact” (and issues of fact may indeed exist), it is clear that the ultimate determination as to whom the invitation must come from does not “depend on the probative value of any evidence,” and thus is a pure question of law that should be determined by the court.9

However, while this question of law has arguably never been directly answered by the courts, there are nonetheless strong arguments that can be made to both the judge and jury for why an unauthorized occupant must be held to the status of a trespasser. The first and most important argument is that the plaintiff’s presence was a direct violation of the express terms of the lawful occupant’s lease agreement. Most residential lease agreements have terms that forbid unidentified individuals from occupying the apartment absent written consent from the landlord. Additionally, many lease agreements have restrictions or required disclosures regarding the tenant’s criminal record. To the extent the plaintiff has a criminal record – even a misdemeanor – the defense may argue that such conviction(s) disqualify him or her as a lawful occupant.

Next, it should be determined if the plaintiff’s presence violated any local, state or federal laws. Most notably, when tenants are receiving federally subsidized rental assistance – which is oftentimes calculated by household income - there are additional laws and regulations that are triggered.  Most notably, an unauthorized occupant’s presence appears to be a clear violation of Section 42 of the Internal Revenue Code, as well as the occupancy guidelines for The Low-Income Housing Tax Credit (“LIHTC”)  and United States Department of Housing and Urban Development (“HUD”) programs. Additionally, to the extent the unauthorized occupant is employed or receiving independent subsidies, this unreported household income could easily disqualify the tenant from his or her rental assistance, potentially making the tenant and unauthorized occupant guilty of fraud.

Finally, it should be determined if the unauthorized occupant’s presence on the property would be detrimental to the landlord by exposing it to financial or administrative liability. For example, if the property is an affordable housing project, the defense may argue that the unauthorized occupant’s presence made the landlord noncompliant with federal law, potentially resulting in fines, loss of tax credits or an inability to participate in future affordable projects.

In cases where there is no issue of fact that the plaintiff was an unauthorized occupant, defense counsel can and should move for summary judgement. In doing so, rather than focusing on the unauthorized occupant being a per se trespasser, it is probably easier to establish that he/she cannot reasonably be held to the status of an invitee or licensee. Specifically, it will be necessary to provide authority that makes it clear that any implied invitation must come from the possessor and not the tenant. Depending on the circumstances of the case, as well as the available case law in your state, defense counsel may consider citing section 52 of The Restatement (Third) of Torts: Liability for Physical and Emotional Harm. Notably, the Restatement sets forth a unique standard referred to as “flagrant” trespassers. While the Restatement does not attempt to fully define a flagrant trespasser, it explains that the "core distinction between trespassers is the extent to which the trespass is offensive to the rights of the land possessor."10 Depending on how inflammatory the unauthorized occupancy is, the Restatement may be enough to convince the court that he/she is a trespasser as a matter of law.

Whether the issue is ultimately determined dispositively by a judge, or at trial by a jury, if a possessor can establish that the plaintiff was an unauthorized occupant of the premises, it has a good chance of substantially reducing the duty of care owed to such individual. - (Brooks A. Saible, Baumann, Gant & Keeley, P.A.)


 1 Bovis v. 7-Eleven, Inc., 505 So .2d 661, 662 (Fla. 5th DCA 1987); see also, Hix v. Billen, 284 So.2d 209, 210 (Fla.1973) ("There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises.").

3 See § 768.075(3)(a)(3), Florida Statutes

4 U.S. Department of Housing and Urban Development Handbook 4350.3: Occupancy Requirement of Subsidized Multifamily Housing Programs.

5 Id.

6 Wood v. Camp, 284 So.2d 691 (Fla. 1973). 

7 Fla. Std. Jury Instr. (Civ.) 401.16(a).

8 § 768.075(3)(a)(3), Florida Statutes

 

 

Tort Reform Louisiana House Bill 57

(JANUARY 19, 2021) - On January 1, 2021, Louisiana’s Tort Reform legislation which was signed into law by Governor John Bell Edwards, went into effect and applies to causes of action arising after that date. The new laws cover the following topics:

1) Lowering the jury verdict threshold to $10,000

2) Excluding the existence of insurance coverage from the jury

3) Limiting medical expenses to the amount actually paid with the court awarding the claimant 40% of the difference between the amount billed and the amount paid provided the award is not unreasonable

4) Repealing the statute that prevented evidence of plaintiff’s failure to wear a seat belt to prove comparative fault

Jury Trials:

Previously a jury trial was only authorized when the amount in controversy exceeded $50,000. The new law reduces the threshold for a jury trial to $10,000. Under the new law if a plaintiff stipulates or otherwise judicially admits that the amount in controversy exceeds $10,000 but is less than $50,000, a party requesting a jury trial must provide a cash deposit in the amount of $5,000. Previously the jury bond was fixed by the court and due no later than 60 days prior to trial. Exceptions may need to be filed prior to answering to determine the amount in controversy where the petition does not specify that the amount in controversy exceeds $10,000 but is less than $50,000.

Evidence of Liability Insurance:

The new law provides that the existence of insurance coverage shall not be communicated to the jury. The law retains the prior language that although a policy of insurance may be admissible, the amount of coverage under the policy is not communicated to the jury unless the amount of coverage is a disputed issue for the jury to decide. There are three exceptions to the new law prohibiting evidence of the existence of a liability insurance policy: 1) if there is a factual dispute related to coverage for the jury to decide; 2) if the existence of insurance coverage would be admissible to attack witness credibility; or 3) if the cause of action is brought against the insurer alone under the direct action statue or bad faith is alleged. However, even under the new law, in all cases brought against an insurer the court shall read instructions to the jury that there is insurance coverage for the damages claimed by the plaintiff at the opening and closing of the trial.

Past medical expenses (collateral source):

The new law provides that where a claimant’s medical expenses have been paid, in whole or in part, by a health insurer or Medicare, the claimant’s recovery of medical expenses is limited to the amount actually paid or owed by the claimant and not the amount billed. However, the court must award 40% of the difference between the amount billed and the amount actually paid, unless the defendant proves this would make the award unreasonable.

The limitation to the amounts paid includes any amounts remaining owed to a medical provider, including medical expenses secured by a contractual or statutory privilege, lien, or guarantee.

In a jury trial, the plaintiff can still present evidence of the amounts billed and only after a verdict is rendered can a defendant present evidence to limit the recovery pursuant to the new law. During the trial the jury is only informed of the amount billed. Whether any person, health insurer, or Medicare has paid or agreed to pay in whole or in part any of the medical expenses is not disclosed to the jury.

The new law codifies the Louisiana Supreme Court’s decision in Bozeman v. State, 879 So.2d 69 (La. 7/2/04) and states that in cases where medical expenses were paid by Medicaid, recovery is limited to the amount actually paid to the provider by

Medicaid.

The new law also codifies the Louisiana Supreme Court’s decision in Simmons v. Cornerstone Investments, LLC, 252 So.3d 491 (La. 5/8/19) and states that in cases where medical expenses were paid pursuant to Louisiana Worker’s Compensation Law, recover is limited to the amount paid under the medical payment fee schedule.

Seat Belt:

Prior law provided that the failure to wear a seat belt was not admissible to mitigate damages. This section has been repealed and allows for the admission of evidence of the failure to wear a seat belt.

Our firm participated in meetings with state Senators, presented topics at the Property and Casualty Insurance Committee meetings in Baton Rouge, LA, and drafted some of the proposed legislation. This is a positive step forward in a lengthy and ongoing process of tort reform measures in Louisiana which we hope to continue to progress through our efforts. – (Perrier Lacoste Attorneys at Law) 

 

Righi Fitch Law Group Is Excited To Announce The Addition Of Shawn Cummings To Our Trial Lawyer Team

(JANUARY 20, 2021) - Righi Fitch Law Group is excited to announce the addition of Shawn Cummings to our trial lawyer team. Shawn will be working at our New Mexico location. Shawn's New Mexico roots run deep, with a family history in New Mexico over several generations, well before New Mexico was even a state.

Righi Fitch Law Group is excited to announce the addition of Shawn Cummings to our trial lawyer team. Shawn will be working at our New Mexico location. Shawn's New Mexico roots run deep, with a family history in New Mexico over several generations, well before New Mexico was even a state.

In Shawn's spare time, he enjoys spending time with his two sons at their collective sporting events and is also an avid runner. He has participated in both marathons and ultra-marathons throughout the country in places such as Boston, Seattle, Phoenix, El Paso, San Francisco, Las Vegas, Salt Lake City, Valles Caldera, and Albuquerque.

Shawn is excited to join the firm and its ranks of seasoned trial lawyers.  He joined the Righi Fitch team because of the firm's strong reputation for trial work and their innovative approach to resolving cases. 

We are excited to have Shawn on board with our team and we look forward to watching excel with our firm.

Please contact Beth Fitch at 602) 385-6782 or Rick Righi at (602) 385-6780, Founding Partners for Righi Fitch Law Group, if you have any questions or concerns. – (Righi Fitch Law Group)

 

New Associate Gary D. Baker, Jr. Joins Gallagher Sharp LLP

(JANUARY 20, 2021) - The law firm of Gallagher Sharp LLP is pleased to announce that Gary D. Baker, Jr., has joined the firm as an Associate.

Mr. Baker is a member of firm’s Business & Employment and Product Liability Practice Groups. He focuses on representing state fund and self-insured employers before the Industrial Commission of Ohio in workers’ compensation matters. He also defends manufacturers against claims alleging product liability. Gary is a former Law Clerk with the Cleveland Metropolitan Bar Association’s Certified Grievance Committee.

Mr. Baker received his law degree, cum laude, from Cleveland-Marshall College of Law in 2020, where he participated on the Mock Trial Team and served as Corresponding Secretary for the Black Law Student Association.  He received his undergraduate degree from Case Western Reserve University in 2017. Mr. Baker is a member of the Ohio State and Cleveland Metropolitan Bar Associations. 

Gallagher Sharp is a trial and business practice firm focused on the defense of civil claims and lawsuits for corporations, insurance companies and their policyholders. The firm's areas of experience include general litigation, business and employment, insurance, transportation, professional liability, product liability, mass torts, and appellate law.  Founded in 1912, the firm’s main office is located at 1215 Superior Avenue, 7th Floor, and has offices in Columbus, Toledo, and Detroit, Michigan. 

For further information, please contact Jeanne Kostelnik, Director of Client Services, at 216-522-1082. – (Gallagher Sharp LLP)

 

New Associate Randa E. Payne Joins Gallagher Sharp LLP

(JANUARY 20, 2021) - The law firm of Gallagher Sharp LLP is pleased to announce that Randa E. Payne has joined the firm as an Associate.

Ms. Payne is a member of Gallagher Sharp’s Business & Employment, Professional Liability, and Transportation Practice Groups.  She defends employers in management liability suits and lawyers against malpractice claims.  She also represents members of the trucking industry in personal injury, property damage, as well as wrongful death claims arising from commercial motor vehicle accidents.

Ms. Payne received her law degree, cum laude, from Case Western Reserve University School of Law in 2020. She received her undergraduate degree, summa cum laude, from Ursuline College in 2017, where she participated in NCAA Division II Basketball.  Ms Payne was a Judicial Extern for the Hon. Eileen T. Gallagher, Court of Appeals, Eighth Appellate District, a Senior Research Assistant/Writer for Baldwin’s Ohio Practice: Tort Law, and a Student Practitioner for the Milton A. Kramer Criminal Defense Clinic. She is a member of the Ohio State and Cleveland Metropolitan Bar Associations. 

Gallagher Sharp is a trial and business practice firm focused on the defense of civil claims and lawsuits for corporations, insurance companies and their policyholders. The firm's areas of experience include general litigation, business and employment, insurance, transportation, professional liability, product liability, mass torts, and appellate law.  Founded in 1912, the firm’s main office is located at 1215 Superior Avenue, 7th Floor, and has offices in Columbus, Toledo, and Detroit, Michigan.

For further information, please contact Jeanne Kostelnik, Director of Client Services, at 216-522-1082. – (Gallagher Sharp LLP)

 
<< first < Prev 11 12 13 14 15 16 17 Next > last >>

Page 14 of 17