Premises & Retail Liability

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.

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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. 

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_{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.}