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04/18/13 It's the Law: Florida Has Statute Addressing Slip and Falls

It's The Law

Florida Has Statute Addressing Slip and Falls

(4/18/13)

Question:

I stepped on something slippery in a department store, fell down and broke my hip. Do I have a good case for damages against the store?

Answer:

It is difficult to provide an opinion as to the merits of your case without more detail. But, I can address the law in Florida concerning liability for slip and fall. That law has undergone a metamorphosis over the past two decades.

Florida's court cases addressing liability in slip and fall actions originally required a store owner to take reasonable steps to ensure safety of visitors to the store. This required the store warn visitors of any concealed dangers which could not be reasonably discovered by the visitors. It also required the store to maintain the premises in safe condition, which included a duty to take reasonable steps to monitor the store and learn of any dangerous conditions.

The most obvious example of monitoring would be a grocery store, in which the owner or operator would have to patrol the isles to be sure nothing slippery was on the floor. Frequency of those patrols would be determined by the "reasonable" standard. That standard was generally applied with hind sight, leaving store owners unsure of how often they needed to patrol the isles. The easiest way to prove the store owner should have known of the slippery substance was high volume of shopping cart tracks or footprints through the slippery substance.

When the plaintiff could show that a slippery substance had likely been on the floor for a long time, the store owner had liability based on constructive notice even if the owner had no actual notice. But, where there was no evidence of how long the material had been on the floor, the plaintiff would lose. All of that changed in 2001, when Florida's Supreme Court decided the case of Owens v. Publix Supermarkets, Inc.

In the Publix case, Evelyn Owens slipped and fell on a discolored piece of banana lying on the floor. The evidence was the banana had darkened, like it had been exposed to air for awhile. Florida's Supreme Court decided to eliminate the concept of constructive notice in slip and fall cases. An injured party would no longer have to establish how long a foreign substance had been on the floor. All that was needed was to establish the foreign substance was present. After that, the burden would shift to the store to show it exercised reasonable care in maintenance of the premises under the circumstances. That case created a rebuttal presumption in all slip and fall cases involving substances on floors that the store was negligent, requiring the store to prove that it acted reasonably to avoid liability.

Florida's Legislature responded quickly. In the 2002 legislative session, a statute was enacted shifting the burden of proof back to the injured party and eliminating the presumption that a store failed to maintain premises in a safe condition when injury was caused by a slip and fall on a slippery substance.

In 2010, the Legislature repealed that statute and enacted new Section 768.0755 of Florida Statutes. That section now requires an injured person prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. The statute states "constructive knowledge can be proven by showing the dangerous condition existed for such a length of time that the business should have known of the condition or that the condition occurred with regularity and was therefore foreseeable."

The statute makes an injured party worker harder to get to the point where a store has to put on evidence. The injured party must now introduce facts to show the store had actual or constructive notice or that the condition existed for a long enough time that the store should have known about it. It is now easier for a store to argue that an injured party has failed to state a cause of action under the statute.

Slip and fall cases are fact intensive. Evidence of the slippery substance quickly disappears and witnesses may be hard to locate as time goes on. For these reasons, you are well advised to retain an attorney at the earliest possible time.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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