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Defense Digest

From ‘Brownish’ to Baseless: Florida Court Reinforces Slip-and-Fall Standards

Defense Digest, Vol. 31, No. 2, June 2025

June 1, 2025

Key Points: 

  • Recent case clarifies Florida premises liability law and the burden on plaintiffs under Section 768.0755, Florida Statutes.
  • A plaintiff must establish that a business had actual or constructive knowledge of a dangerous condition.
  • A plaintiff needs to demonstrate more than just the presence of a substance—he or she must show how long it was there or why it should have been discovered.

In Duran v. Crab Shack Acquisition, FL, LLC, 384 So. 3d 821 (Fla. 5th DCA 2024), the Florida Fifth District Court of Appeal affirmed summary judgment in favor of the defendant, emphasizing the plaintiff’s failure to establish actual or constructive knowledge of a dangerous condition. This case clarifies Florida’s premises liability law and highlights the burden on plaintiffs under Section 768.0755, Florida Statutes.

Factual Background
Jose Duran sued Crab Shack Acquisition, FL, LLC, d/b/a Joe’s Crab Shack, after allegedly slipping on a “brownish” liquid in the restaurant’s dining area. The color and identity of the liquid became a focal point in the case—not because it revealed anything about the restaurant’s conduct, but because it revealed a lack of clarity and specificity in the plaintiff’s evidence. Duran himself referred to the substance only as “brownish,” and no witness could describe it with more detail or identify its source.

There was no evidence of footprints, track marks, or drying patterns indicating how long the liquid had been present. Witnesses did not see the spill before the fall, and Crab Shack employees followed routine inspection and cleaning practices. The plaintiff failed to provide records or testimony showing that inspections had been neglected.

Legal Analysis
Under Florida law, business owners are not strictly liable for invitee safety, but they must maintain their premises in a reasonably safe condition. Florida Statute Section 768.0755 requires a plaintiff to prove a business had actual or constructive knowledge of a hazard to recover for a slip-and-fall injury.

The court found no evidence that the restaurant knew about or should have known about the liquid. While constructive knowledge can be proven through circumstantial evidence, such as the substance’s condition or duration, no such evidence existed here. Citing Welch v. CHLN, Inc., 357 So. 3d 1277 (Fla. 5th DCA 2023) and Encarnacion v. Lifemark Hosps. of Fla., 211 So. 3d 275 (Fla. 3d DCA 2017), the court reiterated that merely showing the presence of a substance is insufficient.

The plaintiff’s claim that the liquid originated from employees’ shoes lacked competent evidence. The court also rejected the argument that an employee’s slip after the incident indicated prior notice, as no evidence showed when the liquid first appeared or whether it was visible before the fall.

One of the most important takeaways from this case is the PLUS factor—plaintiffs must provide something more than just the presence of a substance on the floor. Courts require additional proof, such as evidence that the hazard existed for a measurable period or that it had a noticeable, deteriorated condition that should have been detected by ordinary diligence. Without this extra proof, the claim cannot proceed past summary judgment.

Applying Florida Rule of Civil Procedure 1.510(a), the court emphasized that summary judgment is appropriate when no genuine dispute of material fact exists. The defendant met its burden by demonstrating the absence of evidence that the liquid had been present long enough for discovery and remedy. Without conflicting evidence requiring jury determination, the appellate court affirmed summary judgment.

Implications for Florida Premises Liability Law
This decision reinforces the strict burden on plaintiffs in slip-and-fall cases. Business owners must exercise reasonable care, but liability does not attach without proof of actual or constructive knowledge of a hazard. Since 1942, the Florida Supreme Court has been crystal clear -- negligence will not be presumed merely because of the happening of an accident. Defense counsel can cite Duran to argue for summary judgment when plaintiffs fail to provide sufficient circumstantial evidence.

The ruling also underscores the importance of proper training and documentation for businesses. Routine inspections and clear maintenance records significantly strengthen defenses against premises liability claims.

Additionally, Duran highlights the necessity for plaintiffs to provide tangible evidence that a business had a reasonable opportunity to detect and address a hazard. Mere speculation or assumptions regarding a hazardous condition’s duration are insufficient.

The decision also clarifies that an employee’s presence in an area or a general duty to inspect does not create a presumption of knowledge. Courts require affirmative evidence showing that a condition was visible, had been present long enough to be discovered through ordinary diligence, or was recurrent enough to infer constructive notice.

For defense counsel, Duran serves as a roadmap for crafting dispositive motions in similar cases. By emphasizing gaps in the plaintiff’s evidence regarding the hazard’s duration, businesses can successfully argue against liability. Florida courts are likely to continue scrutinizing slip-and-fall claims under this framework, reaffirming the need for concrete evidence.

Key Takeaways for Insurance Professionals

  • Strict Notice Requirement: Plaintiffs must show that a business knew or should have known about a hazard before liability attaches.
  • Speculation Is Insufficient: Assumptions about how long a spill was present will not survive summary judgment.
  • The ‘PLUS’ Factor Matters: Plaintiffs need more than just the presence of a substance—they must show how long it was there or why it should have been discovered.
  • Business Protections: Routine inspections, clear maintenance records, and employee training significantly strengthen defense strategies.
  • Legal Precedent: Plaintiffs must provide tangible evidence that a hazardous condition existed long enough for its discovery—an employee’s presence alone does not establish liability.

Conclusion
The ruling in Duran v. Crab Shack Acquisition, FL, LLC, underscores the necessity for plaintiffs to establish actual or constructive knowledge of a hazard to survive summary judgment. Florida courts continue to require strong evidence rather than mere speculation. The PLUS factor is key—without evidence beyond the presence of a substance, plaintiffs cannot proceed. For business owners and defense practitioners, Duran is a critical case in evaluating and defending slip-and-fall claims under Florida law.

Matthew is a member of our Casualty Department and works in our Orlando, FL office. 


 

Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.