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Perspectives on Florida Law
When You Need Help - September, 2012

Premises Liability - Part 1- Paul R. Cavonis, Esq.

"Premises liability" is a general term used to describe a variety of incidents involving an injury occurring on property. These incidents can be anything from a criminal attack to the more common "slip and fall". Broadly speaking, a property/business owner owes two primary duties to those who are legally on the property.

First, there is a duty to maintain the property in a reasonably safe condition ("duty to maintain"). Second, there is a duty to warn of any latent or concealed hazards that the owner knew about or should have known about ("duty to warn"). Contrary to what many think, the mere fact that someone is injured on another's property does not make the owner liable. The person claiming an injury must prove the owner breached one of the above duties.

Duty to maintain

The duty to maintain a property in a reasonable safe condition is a general duty owed to all those who are legally on the property. The owner can satisfy this duty by using ordinary care to maintain the property. An owner who acts prudently by timely correcting potentially dangerous conditions like tripping and slipping hazards has fulfilled this duty. An owner who fails to correct these potentially hazardous conditions is liable to those who are injured by them. Common conditions requiring correction include broken and uneven walking surfaces (tiles, sidewalk, etc.), poor lighting, dangerous animals and criminal activity.

Duty to warn

The duty to warn of a latent or concealed hazard arises when an owner actually knows the hazard exists or should have known the hazard exists. The hazard is considered latent and/or concealed if it is not readily observable to a reasonable person under similar circumstances. For example, a clear, slick liquid on a tile floor may not be "readily observable". An owner who should have known about a hazard is deemed to have "constructive knowledge" of the hazard. An owner has constructive knowledge when a hazard has existed for a sufficient amount of time or occurs with sufficient regularity. For example, if the clear, slick liquid from our earlier example remains on the floor for 20 minutes, the owner may be deemed to have constructive knowledge of it since it was on the floor long enough for the owner to have discovered it. For an additional example consider the owner who sells a product that is commonly dropped on the floor by customers (unpackaged fruit, items sold in bulk, etc.). If this occurs with enough frequency, the owner is deemed to have constructive knowledge regardless of how long the items are on the floor.

Keep in mind that the physical abilities of those who regularly enter the property have an impact on the above duties. For example, if an owner has a business that regularly attracts elderly customers, the owner may need to take additional precautions to keep the property safe for those with problems with vision and/or mobility. Those who operate a business involving children (daycare center, arcade, etc.) must take into consideration the immaturity of those children.

In the final analysis, a little common sense goes a long way in keeping a property reasonably safe. Using good judgment and applying the "golden rule" makes for a safe property. For those other properties that cause injury, give me call. Next month we will discuss the attractive nuisance doctrine and other special rules applicable to a premises liability claim.

Ready to Buy? - by Peter Hofstra, Esq.

You've finally decided to buy your next home. Problem is, while you were making up your mind, other buyers jumped into the home market too. Now you are facing competition for the best properties. To be successful in today's real estate market, you're going to need help.

The following eight tested tips will increase your market savvy and sharpen your competitive position.  You'll then be ready to act quickly the minute you see the perfect home.

1.  Get Pre-Approved - Getting pre-approved for a mortgage loan is your best first step.  You will go through what amounts to a mini-appliction process (paperwork, credit check, etc.) prior to shopping for a home.  Pre-approval is more effective than pre-qualification, which only gives you a rough idea of the amount a lender might lend you - not factoring in some of the details that could affect the loan amount. Even better, pre-approval makes you a very desireable "cash" buyer, a real advantage over other buyers with uncertain financing.

2.  Be First Getting to New Listings - Once you know your specific price range and tastes, you can regularly do a computerized market sweep for new listings. With this hot list of newly listed properties, you'll get the jump on other buyers. Timing can be everything.

3.  Do Your Homework - Make yourself a "value expert" by investigating local properties to get an idea of price points, listing-to-sales-price ratios, hottest areas and best places for a bargain. Knowing what your money will buy will help you locate comparable properties in specific neighborhoods and what impact specific features have on price.

4.  Give Your Offer The Personal Touch - You'll gain an advantage by presenting your offer in person, plus you may pick-up critical intelligence on any competing offers by being on the scene.

5.  Prove You Mean Business - There are few better ways to show you are serious about buying a property than by including a substantial good-faith deposit along with your offer. A competitive deposit could be as much as 5% of your bid price to be sure it gets the seller's attention.

6.  Don't Lose Your Head Over Price - Just because the market is active doesn't mean you should be willing to pay any amount to get your dream home. You may have to compromise on one point to gain another, such as offering something more on price or a settlement date that fits the seller's timetable in return for the seller helping on some costs such as paying for some or all points, inspections, closing costs or by conveying personal peoperty. But don't go crazy.  Remember, you may have to sell this home one day.

7.  Keep Your Purchase Offer Simple - Make sure your contract is headache-free, not messy or overly cluttered with unnecessary contingencies, especially repairs. Keep contingencies to a minimum while still protecting your interests.  Be helpful and flexible. A buyer who will accommodate a seller's needs is a smart buyer.

8.  Don't Go It Alone - What you need most in today's market is experienced professional guidance. Take the time to locate a buyer's realtor who will represent your interests and an experienced real estate attorney.

Mass Tort | Metal-On-Metal Hips- by Colin Colgan, Esq.

In March of 2012, a new study was published in the medical journal Lancet regarding the safety of metal-on-metal hip implants. Experts in Britain studied data from more than 400,000 hip replacements in the National Joint Registry of England and Wales, the world's largest joint registry.

Researchers focused on the years 2003-2011. They found that metal-on-metal hips were repaired or replaced 2-3 times more often than traditional implants made of ceramic or plastic. Britain's health regulators urge its citizens to undergo annual examinations for as long as they have a metal-on-metal hip in place.

Previous studies have shown that metal-on-metal hip implant components wear down quickly, can generate metallic debris, and lead to the following problems:

  • Severe pain in groin, hip or leg
  • Unusual "clicking" or "popping" of the joint
  • Loosening of the product from the bone
  • Loosening of the product causing fracture in surrounding bone
  • Bone and tissue damage and/or necrosis from metallic wear debris
  • Elevated levels of cobalt and chromium in bloodstream
  • Serious injuries due to cobalt poisoning
  • High early failure rate

If you have had a hip replacement and are experiencing hip/groin pain, difficulty walking or a worsening of symptoms, you should make an appointment to see your orthopedic surgeon for a physical exam and an evaluation based on your symptoms. Additionally, patients with metal-on-metal hip implants should have yearly blood tests to check chromium and cobalt ion levels to monitor dangerous metal levels in their bodies.

If you or a loved one have been implanted with a metal-on-metal hip implant and have undergone revision surgery or suspect that you may need to undergo surgery in the future, please contact our firm for important information regarding your legal rights.

Commercial Lease Do's and Don'ts - by Dennis R. DeLoach, Jr., Esq.

Generally, a commercial lease is much more complex than any residential lease and the success or failure of a business may depend on the terms of the negotiated lease. If you are considering entering a new lease, here are some key points to consider:

  1. Read and understand the lease. This is basic. Many times, tenants sign leases without fully reading them, and fully understanding the terms of the lease. This sometimes creates problems.
  2. Negotiate. Negotiate the rental price. Do not accept the asking price. Make sure the lease price together with all the costs you are assuming, is something you can afford. Many businesses fail because they enter into a lease which is too high. Note any escalation clauses and whether there are limits on management fees and costs.
  3. Gross Lease. If possible, negotiate a gross lease. A gross lease is a lease where the landlord pays your share of the expenses such as taxes, insurance, maintenance, etc.
  4. Net, Net, Net Lease. This is a lease in which the tenant pays his pro rata share of the taxes, insurance, maintenance, management, etc. This is the preferable lease for a landlord, but not a preferable lease for a tenant.
  5. Air Conditioner/heating. If possible, place the responsibility for maintenance and replacement for the air conditioning/ heating on the landlord. The landlord will attempt to place this responsibility on the tenant.
  6. Length of lease/options. Be sure you have options for renewing the lease (if you wish). Many times options are tied to CPI (consumer price index) and sometimes a small fixed percent.
  7. Have an Attorney Review.The complexity of commercial leases almost demands that you have it reviewed by an experienced real estate attorney before you commit to anything. The attorney can help you in the negotiating process and, potentially, save you more than any fees paid for the service.

My best to you with your leasing and if you have any questions concerning your lease, please do not hesitate to contact one of the attorneys at DeLoach and Hofstra, P.A.

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