What is a Gratuitous Guest in Florida?
A gratuitous guest is an individual who is invited to enter upon and remain on the property of another without entering into an agreement with the owner for payment of services. These are individuals who are social guests or family and friends to whom:
"an invitation is extended under circumstances which show that the resulting relationship which is created is not intended to be, and is not, a business or contractual relationship that carries with it an expectation on the part of the possessor of the premises or the guest, that either of them shall derive a material commercial benefit from the relationship or that the possessor or the guest shall incur an expense of any material character in maintaining that relationship . "
A gratuitous guest does not pay anything in exchange for the "services" of being hosted. A gratuitous guest does not need to bring a hostess gift, use services provided by the host, etc. He or she is simply not a business invitee who provides a good or service (or donation) in exchange for the host’s services.
Specifically, the following examples can help you determine whether you have a gratuitous guest:
a. A family member who comes to stay with you for a week
b. A friend from work who visits once a month
c. A neighbor who stops by to share a cup of coffee and a newspaper once a week
d. In general – a person you understand is coming to visit you for a limited time in your home (e.g. two days) without a fee or payment of any kind expected.
Obligations of Owners to Gratuitous Guests
It is often difficult to determine who is solely liable for the victim’s damages in an injury case. What happens when your neighbor’s friend is over and they fall off of your new roof? Are you liable? Well, that depends. Under Florida law, trespassers have few rights from a liability standpoint. However, even under a trespassing situation, a landowner may still be liable for injury to a trespasser under limited circumstances, i.e., if the trespasser is "attractive nuisance" (i.e., kids will be drawn to the swimming pool or trampoline), if the trespasser is a criminal or if the trespasser is a child. On the opposite end, the landowner does have an obligation to keep those entering the premises for business purposes safe from known dangers, referred to as invitees. From a liability standpoint, gratuitous guests of a landowner fall into a grey area on the premises liability spectrum. Gratuitous guests are also referred to as social guests or licensees. The legal concept is that, if you allow someone certain privileges on your property, you owe them a duty of care based on the relationship you have created with them. A gratuitous guest is one that the landowning is not financially compensated for their presence. For example, if a neighbor comes by to borrow a cup of sugar or to ask if you have seen their dog, these are gratuitous guests. Also, a person invited to a party to watch movies and share a pizza is a gratuitous guest. Florida courts have had to grapple with exactly what is the duty of care owed by a landowner to a gratuitous guest. Is it the duty owed to a trespasser, which is very low, or the duty owed to a business patron, which can be very high? In establishing some clarity, Florida courts require that gratuitous guests be provided with the same level of care offered to a trespasser. This doesn’t mean that the increased requirements of an invitee apply to gratuitous guests. In fact, the standard for a gratuitous guest in Florida is arguably less than required of a trespasser, as the burden is not on the landowner to maintain a safe property for gratuitous guests. Instead, the burden is on the gratuitous guest to observe whether the place is reasonably safe for him or her. Said another way, courts have held a gratuitous guest has "a duty to a degree commensurate with the danger involved." As long as the social guest is aware of the dangers on the property, they have assumed the risk of danger and the landowner will not be liable for injuries suffered. Thus, the minimal duty owed to gratuitous guests means that the courts have little difficulty defending the landowner when the injured social guest is fully aware of the dangerous condition on the property but choose to ignore the risk.
Common Legal Issues with Gratuitous Guests
There are several types of cases that can arise regarding gratuitous guests. For example, what happens if the gratuitous guest is injured on the property? Or what are the property owner’s rights and liabilities? Can the gratuitous guest be told to leave the property? This section of the article will address these questions and other common legal issues that may arise.
Injuries on the Property
In a situation where the gratuitous guest sustains an injury on the property (for example, is bitten by the property owner’s dog), the guest will often want to pursue recovery from the property owner. However, pursuant to Florida law, and case law, landowners have a duty of care to keep a property reasonably safe for their social guests, and the duty of care is higher if the property owner is renting or leasing the property out to the social guest. If there is a known danger on the land, the property owner will be liable if he or she fails to remove the danger or warn the guest. Note: a Florida appellate court has held that a land owner does not have to ensure that his property is free from all dangers, but only all dangers which, in the exercise of reasonable care, he can anticipate.
Can the Gratuitous Guest Be Told to Leave the Property?
A gratuitous guest can actually be told to vacate the property at any time as a property owner can always terminate his own license over another’s land. However, a property owner will be liable if he has locked the exit to the property and the guest is unable to exit in a safe manner. In that case, a guest may be able to recover from the property owner for false imprisonment.
Can the Gratuitous Guest Be Charged Rent for Stay on the Property?
Again, a property owner can charge rent to a guest if the guest is living on the property (either full- or part-time) in exchange for some form of compensation. A property owner who begins to charge rent to a friend who was only staying "as a favor" (a social guest) could be liable for rent not paid. However, the tolling of any alternative fees will depend on how long the guest has been allowed to stay on the property.
Court Cases Regarding Gratuitous Guests
Several Florida court cases have addressed the liability of homeowners in situations involving gratuitous guests, although it should be noted that Florida courts have decided that only a duty of slight care is owed to a social guest. This means the court will consider whether a condition on a property increases the risk to the social guest. For example, where a tree root was raised in the common area of a condo complex, the court found that the owner was not liable, because the failure to mow and maintain it did not constitute an unreasonable risk. Rodriguez v. Montgomery 55 So. 3rd 733 (Fla. 2d DCA, 2011)
The issue of liability of a homeowner for injury to a guest is further complicated in Florida by the distinct categories of social guests and business invitees. A "business invitee" is generally defined as someone invited onto another’s property for the economic mutual benefit of the parties.
One case, McCoy v. Mazique 644 So.2d 515 (Fla. 1994) (McCoy), is the seminal case in Florida on social host liability. The court held that a social host does not owe a duty of care to protect a social guest on her property from the ordinary dangers that the guest would otherwise encounter everywhere. The defendant’s home had been invaded by thieves, making their way to the bathroom where they attacked and raped a guest. The court found no liability, finding that the home was not "secure" or "securely fastened," but the homeowner did not have any duty to protect the victim from the ordinary dangers and risks that came with that factual situation.
Following McCoy, Florida courts have held that a homeowner does owe a social guest even a duty of slight care when the guest is injured by a dangerous condition on the host’s property if the host is aware of the dangerous connection or activity. Mullins, 647 So.2d at 852; Burton v. Willow Creek Homeowners Association, Inc., 959 So.2d 1199, (Fla. 2d DCA 2007); Belcher v. Backer, 24 So.2d 602 (Fla. 3d DCA 1946). Under Mullins, the duty applies only if the host knows or has reason to know of the guest’s presence on the property. Mullins, 647 So.2d 850. Courts have applied the Mullins reasoning despite an invitation or uninvited situation. E.g., Pineda v. Kuneff, 834 So.2d 843 (Fla. 3rd DCA 2003)(holding that a child who entered a stranger’s possession while the child was temporarily unattended by his mother could sue the homeowner for injuries incurred by the child as a trespasser for the negligent installation of a swimming pool ladder).
Gratuitous Guests vs. Invitees and Licensees
While invitees and licensees are defined categories within the legal system in Florida, gratuitous guests are not. This is because gratuitous guests are a concept originating in the common law rather than in the statutory law. This 2013 case by the Third District Court of Appeal, has also become the standard all four District Courts of Appeal in Florida: first, Second, Fourth and Fifth are following the Third DCA in defining this as a separate category of guests.
Traditional example of gratuitous guest cases can be seen with friends and family members visiting someone’s home. If someone goes to visit a friend for a few hours, and while the guest is walking around the property, he or she trips, falls and is injured, there are several potential legal classifications that could be applied here:
The person is an invitee because he was specifically invited to use the property in exchange for his benefit to the property owner.
The person is a licensee because she was permitted to enter the property with the ownership interest and benefit coming from the social relationship between them.
The person is a gratuitous guest who is a social guest concerned only with his purpose in visiting the friend or family member and, thus , enjoys no benefit from his presence on the property or from the visit itself.
The distinction between these different legal classifications matters in personal injury and wrongful death cases because Florida law places a much higher duty of care on those using the property in the case of invitees (owners/managers of the property) than in the case of licensees and gratuitous guests (the guests). Property owners must use "reasonable care" to keep the premises safe for invitees, but only need to refrain from committing willful misconduct against licensees and gratuitous guests.
For most people, being classified as a licensee or gratuitous guest will not mean a significant decrease in the recovery of damages paid by the property owner. However, when serious injuries are suffered, the difference between being classified as an invitee or a gratuitous guest can result in a 100% reduction in the amount of damages recovered. This happens because no damages can be recovered from the property owner if the property owner simply refrained from doing anything willful to harm the gratuitous guest. In other words, if the gratuitous guest was injured purely because the owner failed to keep the property safe for the guest, that guest’s case will potentially fail because the guest does not have an action against the owner if it is simply negligent.
How to Protect Your Rights as a Gratuitous Guest
How to Protect Legal Rights as a Gratuitous Guest in Florida
One of the best ways to protect your legal rights as a gratuitous guest in Florida is to make sure all correspondence related to your injury is sent to an attorney that can respond on your behalf. It should also be clear to all parties that you are pursuing your legal rights and wish to consult and retain legal counsel.
Sometimes insurer’s will contact a gratuitous guest in an attempt to make statements that will be used against them. Therefore, you should not make any statement to an insurer related to the facts of the case or the amount of damages you sustained. Just because you want as much compensation as possible does not mean you can do things that are considered fraud (i.e. hiding pre-existing complaints) in order to obtain even more compensation. Insurers also send out "riders" to get signed by all guests that were present at the time of the accident. Their goal is to get the rider to say that none of the guests experienced any injuries as a result of the accident. Do not sign this rider without first speaking to an attorney.
If you do receive a rider, send it to your lawyer so he or she can respond on your behalf.
It is important to remember that just because you believe you are entitled to recover from a particular party, the party will likely disagree and deny responsibility. The sooner you speak with a lawyer, the better.
You should also ask your lawyer to investigate the liability of the defendant who caused the injuries. This process will take time and often times you will not hear from your lawyer. Simply communicate with him or her to make sure you understand their strategy and to make sure nothing has been overlooked.
Effect of Gratuitous Guest Laws on Homeowner’s Insurance
Gratuitous guest laws may also be relevant to homeowners’ insurance policies. Owners of homeowners insurance policies typically seek coverage if an injured party brings suit for negligent guest injury in the home. Homeowners insurance has separate coverage that applies to liability for guest injuries in the home. The question then arises as to whether or not the guest, who slips and falls on business premises, is a "guest" under the law of the premises owner’s residence state.
As discussed above, gratuitous guest laws impose liability on the host on account of an injury "sustained by a social guest" (Nimocks, supra at 825; exception omitted). A court may thus look to the particular evidence at hand to determine whether there is sufficient evidence to show that the person who was injured on the premises was, in fact, a social guest. Damages paid to the plaintiff as a result of a judgment or settlement could be covered under the applicable homeowners policy .
A review of one insurance policy in this respect indicates that there is no explicit exclusion of liability for injuries to the category of persons treated under gratuitous guest laws. Under the relevant policy, coverage is provided for the following: Contractual liability is expressly excluded from coverage in both the general liability and the personal liability portion of the policy, but the exclusion does not apply where the insured would be liable in the absence of the contract.
A theory of liability under gratuitous guest laws does not constitute a contractual obligation. An insured under the policy injured as a result of the host’s negligence would be liable even in the absence of a contract and, consequently, would be covered under the liability section of the contract. This coverage may be particularly important to homeowners whose property is accessible to the public (such as an inn or a commercial premises that allows members of the public to use its facilities), as well as to homeowners with the intent to allow friends and family members to visit their homes.