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You Slip. You Fall. You Lose. Florida’s Updated Transient Foreign Substance Statute

December 17, 2013

By Alan C. Nash, Esq.*

Key Points:

  • Florida’s updated transient foreign substances statute may provides fertile ground for a dispositive motion.
  • Pursuant to a recent 3rd District Court of Appeal’s opinion, Florida’s updated transient foreign substances statute is retroactive.

 

On July 1, 2010, Florida Statute § 768.0710 was supplanted by Florida Statute § 768.0755. A win for premises owners and insurance carriers, Florida Statute § 768.0755 imposed a greater burden of proof upon plaintiffs in slip and fall cases allegedly caused by transitory foreign substances.

When considering liability exposure for a premises owner, the general rule in Florida, as related to invitees (i.e., people present for the benefit of themselves and the owner), is that a property owner owes two duties:

(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition (i.e., free of hazards); and

(2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee, and cannot be discovered through the exercise of due care.

Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA 2012).

In pertinent part, former Florida Statute § 768.0710 stated that the plaintiff had the burden of proving that the business/premises owner in possession or control acted negligently by failing to exercise reasonable care. The statute then explained that actual or constructive notice of the transitory foreign object or substance was not a required element of proof to the claim.

However, Florida Statue § 768.0755 now places the burden of proof completely upon the plaintiff, improving the defense’s dispositive motion odds. The statute requires that the plaintiff must “prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.”

Generally, actual notice is difficult for plaintiffs to prove in most slip and fall matters. Therefore, proof of constructive knowledge is generally argued by plaintiffs to prove their cases. However, this, too, was contemplated by Florida Statue § 768.0755, which explains that constructive knowledge may be proven by circumstantial evidence showing that:

1) 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

2) The condition occurred with regularity and was, therefore, foreseeable.

Plaintiffs commonly attempt to rely on inference—stacking to establish constructive notice. The Florida Appellate Courts have addressed this issue and have ruled that the initial inference must be established to the exclusion of any other reasonable theory or inference. Hurst v. Astudillo, 631 So.2d 380, 381 (Fla. 3rd DCA 1994). In other words, the inferences may be pyramided only if the initial inference is established to the exclusion of any other reasonable theory. By way of example, in Winn Dixie Stores, Inc. v. White, 675 So.2d 702, 703 (Fla. 4th DCA 1996), a case wherein a plaintiff could not identify what caused her to slip and fall, the court ruled that an employee with a buffer nearby was insufficient to establish negligence since the inference could only be drawn through speculation and conjecture. In another example, the Third District Court of Appeal affirmed summary judgment in a separate slip and fall matter and ruled that actual or constructive knowledge was not established by the plaintiff, even though she described a “clear liquid” on the floor and on her shoe that she believed was the result of a nearby employee stacking shampoo. The court ruled that this evidence was insufficient, without more, to create an inference that the defendant caused the shampoo-like substance to be on the floor. The court then explained that this evidence was also insufficient to show that the store owner had either actual or constructive notice of a dangerous condition. These cases are not in the minority and seem to indicate that this type of speculation and impermissible inference stacking are insufficient to establish actual circumstantial evidence as related to transitory foreign substances.

A more recent issue related to this statute, considering Florida’s four-year statute of limitations in negligence matters, has been the “retroactive challenge” to Florida Statute § 768.0755. The argument has been that it is not retroactive and is only applicable to matters filed after July 1, 2010. The Third District Court of Appeal considered this argument earlier this year and ruled on April 24, 2013, that Florida Statute § 768.0755 is procedural in nature and does not create “new” elements that must be proven by the plaintiff. See, Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d 2013). Therefore, Florida Statute § 768.0755 is retroactive.

*A.C. is an associate in our Fort Lauderdale, Florida, office. He can be reached at 954.847.4923 or acnash@mdwcg.com.

Defense Digest, Vol. 19, No. 4, December 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Alan C. Nash
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(954) 847-4920
acnash@mdwcg.com

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