House Bill 3875e2

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                                     HB 3875, Second Engrossed/ntc



  1                      A bill to be entitled

  2         An act relating to negligence; creating s.

  3         768.0705, F.S.; providing limitations on

  4         premises liability for a person or organization

  5         owning or controlling an interest in commercial

  6         real property; providing for a presumption

  7         against liability; providing conditions for the

  8         presumption; amending s. 768.075, F.S.;

  9         delineating the duty owed to trespassers by a

10         person or organization owning or controlling an

11         interest in real property; providing

12         definitions; providing for the avoidance of

13         liability to discovered and undiscovered

14         trespassers under described circumstances;

15         providing for the application of the act with

16         respect to the common law; providing an

17         effective date.

18

19  Be It Enacted by the Legislature of the State of Florida:

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21         Section 1.  Section 768.0705, Florida Statutes, is

22  created to read:

23         768.0705  Limitation on premises liability.--

24         (1)  If at least six of the following eight provisions

25  of this section are met, there shall be a presumption that a

26  person or organization owning or controlling an interest in

27  commercial real property, other than a convenience store, has

28  fulfilled any duty to provide adequate security for invitees,

29  guests, and other members of the public, against criminal acts

30  which occur in common areas, parking areas, and on portions of

31  the premises not occupied by buildings or structures and which


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                                     HB 3875, Second Engrossed/ntc



  1  are committed by third parties who are not employees or agents

  2  of the person or organization owning or controlling the

  3  interest in commercial real property.

  4         (a)  Signs shall be prominently posted in the parking

  5  area and other public access points on the premises indicating

  6  the hours of normal business operations and the general

  7  security measures provided.

  8         (b)  The parking area, public walkways, public building

  9  entrances and exits, shall be illuminated at an intensity of

10  at least 2 foot-candles per square foot at 18 inches above the

11  surface of the ground, pavement, or walkway.

12         (c)  Crime prevention training, with a curriculum

13  approved by the local law enforcement agency or the Department

14  of Legal Affairs, shall be provided to all nonmanagement

15  on-site employees.  To meet the requirements of this

16  paragraph, existing employees shall receive training within 12

17  months of the effective date of this section and new employees

18  shall receive training within 120 days of hiring.  No person

19  shall be liable for ordinary negligence due to implementing

20  the approved curriculum so long as the training was actually

21  provided.  Under no circumstances shall the state or the local

22  law enforcement agency be held liable for the contents of the

23  approved curriculum.

24         (d)  Security cameras shall be installed and

25  maintained, and shall be monitored or recorded, covering

26  public entrances and exits to buildings and at least half the

27  parking lot.  Cameras shall operate during business hours and

28  for at least 30 minutes after closing.

29         (e)  An emergency call box, or an alarm system linked

30  to law enforcement, a private security agency, or a security

31  guard or other agent on the premises, shall be maintained and


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                                     HB 3875, Second Engrossed/ntc



  1  available within 150 feet of any location in the parking lot

  2  or other public place on the premises.

  3         (f)  A licensed security guard or law enforcement

  4  officer is on duty at the time of the criminal occurrence and

  5  is either monitoring surveillance cameras or patrolling the

  6  premises with such frequency that the parking area and common

  7  areas are observed by the guard at no more than 15 minute

  8  intervals.

  9         (g)  Perimeter fencing shall be installed and

10  maintained, which surrounds parking areas and structures, and

11  which directs pedestrian entry onto the premises.

12         (h)  Landscaping shall be maintained so as to provide

13  no hiding place or obstruct the view of security personnel or

14  cameras.

15         (2)  The owner or operator of a convenience business,

16  that substantially implements the applicable security measures

17  listed in ss. 812.173 and 812.174 shall gain a presumption

18  against liability in connection with criminal acts which occur

19  on the premises and which are committed by third parties who

20  are not employees or agents of the owner or operator of the

21  convenience business.

22         (3)  Failure to implement a sufficient number of the

23  measures listed in subsection (1) or subsection (2) shall not

24  create a presumption of liability.

25         Section 2.  Section 768.075, Florida Statutes, is

26  amended to read:

27         768.075  Immunity from liability for injury to

28  trespassers on real property; definitions; duty to

29  trespassers.--

30         (1)  A person or organization owning or controlling an

31  interest in real property, or an agent of such person or


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                                     HB 3875, Second Engrossed/ntc



  1  organization, shall not be held liable for any civil damages

  2  for death of or injury or damage to a trespasser upon the

  3  property resulting from or arising by reason of the

  4  trespasser's commission of the offense of trespass as

  5  described in s. 810.08 or s. 810.09, when such trespasser was

  6  under the influence of alcoholic beverages with a

  7  blood-alcohol level of 0.08 0.10 percent or higher, when such

  8  trespasser was under the influence of any chemical substance

  9  set forth in s. 877.111, when such trespasser was illegally

10  under the influence of any substance controlled under chapter

11  893, or if the trespasser is affected by any of the aforesaid

12  substances to the extent that her or his normal faculties are

13  impaired.  For the purposes of this section, voluntary

14  intoxication or impediment of faculties by use of alcohol or

15  any of the aforementioned substances shall not excuse a party

16  bringing an action or on whose behalf an action is brought

17  from proving the elements of trespass as described in

18  paragraph (3)(a). However, the person or organization owning

19  or controlling the interest in real property shall not be

20  immune from liability if gross negligence or intentional

21  willful and wanton misconduct on the part of such person or

22  organization or agent thereof is a proximate cause of the

23  death of or injury or damage to the trespasser.

24         (2)  A person or organization owning or controlling an

25  interest in real property, or an agent of such person or

26  organization, shall not be held liable for any civil damages

27  for death of or injury or damage to any discovered or

28  undiscovered trespasser, except as provided in paragraphs

29  (3)(a), (b), and (c), and regardless of whether the trespasser

30  was intoxicated or otherwise impaired.

31         (3)(a)  As used in this subsection:


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                                     HB 3875, Second Engrossed/ntc



  1         1.  "Implied invitation" means that the visitor

  2  entering the premises has an objectively reasonable belief

  3  that he or she has been invited or is otherwise welcome on

  4  that portion of the real property where injury occurs.

  5         2.  "Discovered trespasser" means a person who enters

  6  real property without invitation, either express or implied,

  7  and whose actual physical presence was detected within 24

  8  hours preceding the accident, by the person or organization

  9  owning or controlling an interest in real property, or to

10  whose actual physical presence the person or organization

11  owning or controlling an interest in real property was alerted

12  by a reliable source within 24 hours preceding the accident.

13  The status of a person who enters real property shall not be

14  elevated to that of an invitee, unless the person or

15  organization owning or controlling an interest in real

16  property has issued an express invitation to enter the

17  property or has manifested a clear intent to hold the property

18  open to use by persons pursuing purposes such as those pursued

19  by the person whose status is at issue.

20         3.  "Undiscovered trespasser" means a person who enters

21  property without invitation, either express or implied, and

22  whose actual physical presence was not detected within 24

23  hours preceding the accident, by the person or organization

24  owning or controlling an interest in real property.

25         (b)  To avoid liability to undiscovered trespassers, a

26  person or organization owning or controlling an interest in

27  real property must refrain from intentional misconduct, but

28  has no duty to warn of dangerous conditions. To avoid

29  liability to discovered trespassers, a person or organization

30  owning or controlling an interest in real property must

31  refrain from gross negligence or intentional misconduct, and


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                                     HB 3875, Second Engrossed/ntc



  1  must warn the trespasser of dangerous conditions, known to the

  2  person or organization owning or controlling an interest in

  3  real property, but which are not readily observable by others.

  4         (c)  This subsection shall not be interpreted or

  5  construed to alter the common law as it pertains to the

  6  attractive nuisance doctrine.

  7         Section 3.  This act shall take effect October 1 of the

  8  year in which enacted.

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