401.16 PRELIMINARY ISSUES — PREMISES LIABILITY

On (claimant’s) claim, there is a preliminary issue for you to decide. That issue is:

a. Invitee or invited licensee:

whether, at the time and place of the incident in this case (claimant) was invited on premises owned by or in the possession of (defendant). A person is invited on land or premises of another when he enters or remains there at the invitation of the owner or possessor. An invitation may be either express or reasonably implied from the circumstances. [A person remains invited as long as [he] [she] uses the premises in the customary manner or in a manner which the owner or possessor of the premises might reasonably have expected and at a place where the visitor was invited or where [he] [she] was permitted to be or where [he] [she] might reasonably have been expected by the owner or possessor.]

b. Discovered trespasser [or licensee (uninvited) whose presence is foreseeable]:

Use the bracketed language indicated with an asterisk if claimant was a licensee (uninvited) but not if claimant was a trespasser.*

whether, at the time and place of the incident in this case, (defendant) had a duty to use reasonable care for the safety of (claimant). A person who owns or has possession of land or premises who knows of a condition on the premises which involves an unreasonable risk of harm to another person on the premises has a duty to use reasonable care to warn the other person of the condition and the risk involved, if the presence of the other person is known *[or reasonably foreseeable] by the owner or possessor and if the other neither knew nor should have known of the condition and risk by the use of reasonable care.

NOTES ON USE FOR 401.16b

1. Byers v. Gunn, 81 So. 2d 723 (Fla. 1955); Crutchfield v. Adams, 152 So. 2d 808 (Fla. 1st DCA 1963); Seaboard Air Line Railroad. Co. v. Branham, 99 So. 2d 621 (Fla. 3d DCA 1958).

2. In the case of a person having an express or implied invitation, use instruction 401.16a instead of instruction 401.16b. As a result of Wood v. Camp, 284 So. 2d 691 (Fla. 1973), the former licensee category now consists only of “uninvited licensees.”

c. Attractive nuisance:

The first clause, bracketed and indicated with an asterisk, and the last clause, bracketed and indicated with a dagger, should be used only if there are jury issues on those matters.*†

*[whether (defendant) [owned] [possessed] [or] [controlled] the land or premises in question];

whether the (identify structure or other artificial condition) was located at a place on the land or premises in question where (defendant) knew or had reason to know children were likely to be [as trespassers or otherwise];

whether (claimant child) was attracted by the [(identify structure or other artificial condition)] [(land or premises in question)];

whether the (identify structure or other artificial condition) had an unreasonable risk of death or serious harm to children who, because of their age, were not likely to discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it;

[and] whether (defendant) knew or had reason to know of the risk to the children;

†[and whether (claimant child), because of his age, did not discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it].

NOTES ON USE FOR 401.16c

1. Derived from Restatement (2d) of Torts §339; Cockerham v. Vaughan, Inc., 82 So. 2d 890 (Fla. 1955); Banks v. Mason, 132 So. 2d 219 (Fla. 2d DCA 1961); Fouraker v. Mullis, 120 So. 2d 808 (Fla. 1st DCA 1960). Considered together, instructions 401.16c and 401.20c cover all elements of the attractive nuisance doctrine. Since plaintiff must, in effect, negate negligence in order to prevail on this doctrine, comparative negligence is not a defense. Larnel Builders, Inc. v. Martin, 110 So. 2d 649 (Fla. 1959).

2. Caselaw also uses the phrases “enticed” and “allured” instead of, or in addition to, “attracted”. See, e.g., Concrete Const., Inc., of Lake Worth v. Petterson, 216 So. 2d 221, 223 (Fla. 1968); Martinello v. B & P USA, Inc., 566 So. 2d 761 (Fla. 1990). This instruction uses “attracted” because it is more likely to be understood by the average juror; however, “enticed” or “allured” may be used instead of, or in addition to, “attracted” if the facts warrant.

3. The Committee takes no position as to whether the claimant must have been attracted or lured onto the premises by its general condition or by the condition that ultimately caused the claimant’s harm. See, e.g., Stark v. Holtzclaw, 105 So. 330 (Fla. 1925); Martinello v. B & P USA, Inc., 556 So. 2d 761 (Fla. 1990); Mueller v. South Fla. Water Mgmt. Dist., 620 So. 2d 789 (Fla. 4th DCA 1993); Estate of Starling v. Saha, 451 So. 2d 516 (Fla. 5th DCA 1984).

NOTES ON USE FOR 401.16

1. Instruction 401.16 should be used when the jury could reasonably decide either for claimant or for defendant on the issue of whether defendant owed claimant the degree of care that is an essential part of the claim made by claimant, e.g., as when claimant contends he was an invitee on the defendant’s premises and defendant contends that plaintiff was a trespasser.

2. Instruction 401.16 is intended to frame the issues determining claimant’s status or defendant’s duty. It is not intended as a statement of the degree of care owed. The matter of degree of care is covered in the instructions on negligence issues.

3. The variations of instruction 401.16 state affirmatively the circumstances that must be shown in order for claimant to prevail on this particular issue. If these circumstances are not shown by the greater weight of the evidence, claimant cannot prevail on a claim that depends on such a showing.

4. Instruction 401.16 should be followed by instruction 401.17, Burden of Proof on Preliminary Issues.