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People can get hurt in the hustle and bustle of holiday shopping. Jostling at a crowded sales table, walking through a store with extra stacked merchandise and shoppers with the ever present drink cup all pose danger. But just because someone gets hurt in a store does not mean the store has liability.

Perhaps the most common shopping injury is a slip and fall accident. This can happen when a person trips over an object or an uneven surface, where there is hole or low spot, or a liquid or other substance is on the floor. The injured person invariably blames the store, but making the store liable is not automatic. The customer must prove that the store owed a legal duty to the customer, the store breached that duty and that breach resulted in the injury and damages.

Proving duty is not usually difficult. When a store opens for business its customers are invitees, to which the store owes a duty of providing safe premises for their shopping experience. The real issue in these cases is proving the store owner was negligent, which usually means proving the store owner had actual or constructive knowledge of a dangerous condition.

Actual knowledge means the store owner knew of the dangerous condition. That might be the case where the store owner created a dangerous condition, knew it was dangerous, but left it because the store owner thought it would help sales or expedite movement of customer through the store. Most cases involve constructive knowledge, which means the store owner's knowledge was proven by circumstantial evidence that the defect had been in existence so long that it should have been discovered by reasonable care before the customer was injured.

Review of Florida cases indicates how courts apply the concept of constructive knowledge. In one case, a pedestrian tripped over a fallen telephone cable and sued the telephone company. The telephone company established that the cable was a support cable and that when it fell it did not disrupt the service so the company had no notice of the fallen cable. The court ruled there was not enough evidence to go to trial and granted judgment for the telephone company.

In another case, the plaintiff was injured when she stepped in a pothole but could not prove that the property owner had actual or knowledge of the pothole. The plaintiff failed to prove the pothole had existed so long that the property owner should be charged with notice.

On the other hand, the amount of time a dangerous condition has to exist for constructive notice can be quite short when the defendant creates the danger. In the case of Carr v. School Board of Pasco County, a high school student was hurt when the student ran into a metal bench at the edge of the track during a physical fitness awards program. Running down the backstretch, one of the runners next to Carr forced Carr to make a sharp move to his left and Carr ran into a metal bench, displacing his knee cap. The bench was a fifteen-foot movable aluminum bench used for football practices on the athletic field. There was no evidence the bench was moved during the race. One of the physical education instructors testified that benches were normally kept six feet from the inside edge of the track, but that the benches were moved when the grass was cut. Normal location of the benches was chosen for safety to run on the track. The court found sufficient notice of the dangerous condition, that the school had created a dangerous condition and knew it was dangerous when it left the bench near the track.

Liquids and similar transitory foreign objects or substances have received special treatment in Florida. If the substance is placed on the floor by the owner or employee, the owner has actual knowledge and must take steps to protect the customer. Same rule applies if the owner knows a third party has placed something on the floor that creates a dangerous condition. But, Florida has grappled with constructive notice.  

A store owner has a duty to periodically inspect the store and look for dangerous conditions. Store owners must exercise a reasonable degree of diligence. Frequency of inspections is a factor in determining whether a store owner was reasonable diligent.

The requirement of proving constructive knowledge by a store owner when something is on the floor was eliminated by the Florida Supreme Court in the case of Owens v. Publix Supermarkets, Inc. In that 2001 decision, the court ruled that where the injured party slipped on a transitory foreign substance on the floor of a business, a rebuttable presumption arises that the premises owner did not comply with the duty to maintain the premises in a reasonable safe condition. That meant, the store owner had to dispel the presumption by showing how the store owner was reasonable and diligent in maintaining safe premises.

Businesses and insurance companies did not like the Owens case and asked the Legislature to help. The Legislature responded with a statute in 2002 that reversed the Owens decision. That statute was replaced by Section 768.0755 Fla. Stat., which now provides that if a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. The statute goes on to state that constructive knowledge may be proven by circumstantial evidence showing (a) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) the condition occurred with regularity and was therefore foreseeable. The statute does not apply to all slip and fall cases, but only those with a transitory foreign substance.

There is yet another road to liability for slip and fall. Where a store owner either adopts a method of operation that is inherently dangerous or conducts a particular operation in a negligent manner and condition of the floor was created as a result of the negligent method of operation, plaintiff may recover where a plaintiff is injured as a result of that method of operation. That approach does not need proof of actual or constructive notice. In those cases, the owner creates a dangerous condition and is charged with notice of the condition and responsibility for its existence.

Even if plaintiff can establish negligence of the store owner, the journey can still be problematic. The plaintiff can be further tripped up by the doctrine of comparative negligence.

The doctrine of comparative negligence requires the court determine if the injured person's negligence was also to blame for the accident. The court will reduce damages awarded by the percentage the court finds a plaintiff's negligence contributed to the slip and fall. Comparative negligence includes an injured person not paying attention, wearing inappropriate footwear or when the dangerous condition was so obvious that it should have been avoided.

Comparative negligence reduces the overall damage award. But, if an insurance company paid part or all of the injured person's medical bills, the concept of subrogation can still further reduce the amount of money to the plaintiff. When an insurance company pays for medical care and the injured person later recovers funds from the defendant for medical expenses, the insurance company has a right to reimbursement.

An injured shopper's claim against a store owner can face numerous obstacles. Recovery is not automatic and these cases place a premium on good lawyering.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.