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Woman Shot in Apartment Complex Loses Premises Liability Case

The Florida Court of Appeals recently reached a decision regarding a woman who sued under the theory of negligent security in a premises liability case when she was shot in the common area of an apartment complex. The court made a point in this case to differentiate between the different categories of people under the state’s premises liability law as well as the varying levels of care that are required for each.

Facts of the Case

In the case of Denise Nicholson v. Stonybrook Apartments, LLC, Ms. Nicholson was shot in the leg by a third party while attending a party in the apartment complex’s common area. She had been told by the apartment complex’s former manager and police officers that she was not allowed at the complex, but she went despite the warnings.

She sued the apartment complex for negligence, claiming that “it failed to maintain its premises in a safe condition and [failed] to provide adequate security on the property, at and during the time of [the] injury.” The apartment complex argued that its duties towards Ms. Nicholson were limited because she was a trespasser at the time that she was shot.

At the trial court level, Ms. Nicholson attempted to argue that the case was one of ordinary negligence and not a premises liability case. Therefore, she argued, whether or not she was a trespasser or invitee is irrelevant to the proceedings. The trial court disagreed with her argument and ruled that the case should be treated like a case for premises liability.

The trial court instructed the jury that it must decide whether she was an invitee or a trespasser at the time that she was shot, and whether the apartment complex used the proper level of care for that type of person. The jury found that she was a trespasser at the time of the incident and found on behalf of the apartment complex in the case. Ms. Nicholson appealed the verdict to the Florida Court of Appeals.

Ruling of the Court

The appellate court first made the distinction between ordinary negligence cases and premises liability cases. For ordinary negligence, the defendant owes the plaintiff a duty of reasonable care, regardless of their relationship. For premises liability cases, the duty of care is dependent on the plaintiff’s status as an invitee, discovered trespasser, or undiscovered trespasser.


Florida Statutes Section 768.075 states that “[a] person or organization owning or controlling an interest in real property . . . is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser.” However, the same section also states that “To avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions.”

Furthermore, the law provides that “to avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others.”

Negligent Security Cases

The appellate court also discussed whether cases of negligent security, which was claimed by Ms. Nicholson, falls under the umbrella of ordinary negligence or premises liability cases. The court found that multiple cases point to the situation being considered a premises liability case. In the case of Lane v. Estate of Morton, the plaintiff was attacked by an unknown third party while riding an ATV on private property. The court in that case found that the plaintiff was a known trespasser and thus was owed a very limited duty of care.

The cases of Medina v. 187th Street Apartments, Ltd. and Barrio v. City of Miami Beach also determined that the level of requisite care on the part of the landowner is determined by the category of person in a premises liability case when the plaintiff was involved in a matter of negligent security on the property. The case of Byers v. Radiant Group went further by explaining that a person’s relationship in a negligent security case can change from an invitee to a trespasser, and the according level of care in those cases will also adjust.

The Court of Appeals went further by saying that not only does the case law supporting this type of claim falling under premises liability, but it also makes logical sense. They juxtaposed ordinary negligence, which requires active negligence, to premises liability, which requires passive negligence like a failure to warn. Not only is the type of negligence different, but ordinary negligence cases can take place anywhere, whereas negligent security cases must take place on a specific piece of property.

Applicability to Nicholson Case

As a result of their findings, the Florida Court of Appeals ruled that Ms. Nicholson qualified as a known trespasser in this case because she was told to stay off of the property but she entered despite the warnings and was subsequently shot. Furthermore, her case was not one of ordinary negligence but of premises liability because she claimed negligent security as the proximate cause of her injuries. Therefore, the ruling of the trial court should stand, and the apartment complex is not liable for her injuries.

Call a Florida Premises Liability Attorney Now

If you or a loved one has been injured on someone else’s property, or if you have questions regarding how the outcome of this case may affect your claim in Orlando, Fort Myers, Jacksonville, Tampa, or West Palm Beach, let the experienced premises liability attorneys at The Pendas Law Firm help. Call the office or contact us today for a private and free review of your case.

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