The status of Florida’s slip-and-fall standard

The Florida Legislature repealed § 768.0710, Fla. Stat., which related to the burden of proof in  negligence claims involving transitory foreign objects, like puddles, banana peels, etc.  § 768.0710 required “a duty of reasonable care to maintain the premises” and also did not require “actual or constructive notice of the transitory foreign object or substance.”  See also Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001).  Effective July 1, 2010, the legislature enacted § 768.0755, Fla. Stat., which states:

(1) 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. Constructive knowledge may be proven by circumstantial evidence showing that:

(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.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

So far, the new statute appears only in federal court decisions.   The Middle and Northern districts disagree about whether the new statute applies retroactively.  See Mills v. Target Corp., 2010 WL 4646701 (M.D. Fla. 2010) and Kelso v. Big Lots Stores, Inc., 2010 WL 2889882 (M.D. Fla. 2010) (stating that the law was more than merely procedural and applied prospectively only); compare Yates v. Wal-Mart, 2010 WL 4318795 (N.D. Fla. 2010) (holding that the statute applies retroactively).

Nevertheless, since circumstantial evidence will satisfy the constructive knowledge requirement under the 2010 statute, current cases are likely to refocus on the transitory object itself – e.g., Did the puddle have dirt in it? Was the banana peel blackened?  Before 2001, Florida case law focused on these very same issues.  The additional requirement that the business should have taken action to remedy the condition, however, will make cases difficult to prove that involve falls due to minor or inconspicuous conditions.

If you, or someone you know, have been injured as the result of negligence, medical malpractice or a dangerous or defective product, contact me at (305) 358-3109 or mmazzarella@hannonboyers.com today for a free evaluation of your claim.