On Feb. 26, 2014, Florida’s Fourth District Court of Appeal (West Palm Beach) certified a conflict with the Third District Court of Appeal (Miami) regarding whether Florida Statute § 768.0755, which governs premises liability actions against business establishments, applies retroactively. The statute, enacted in 2010, requires a plaintiff to prove that the business had actual or constructive knowledge of the dangerous condition that caused the plaintiff’s injuries to establish liability against the defendant.

In Kenz v. Miami-Dade County and Unicco Service Co.,2013 (Fla. 3d DCA April 24, 2013), Florida’s Third DCA ruled that § 768.0755, Fla. Stat. (2010) must be applied retroactively to incidents that occurred before the statute became effective. The statute requires plaintiffs in slip-and-fall claims to prove that a business establishment had actual or constructive knowledge of a transitory substance and should have taken action to remedy it.

Florida Statute §768.0710 was eventually repealed in 2010 and the Florida Legislature enacted §768.0755 in its stead, placing a greater burden on the plaintiff to establish the premises owner’s liability in transitory foreign substance cases. Specifically, Florida Statute §768.0755 places the burden on the plaintiff to prove that the business establishment had actual or constructive knowledge of the hazard. Pembroke Lakes Mall Ltd. V. McGruder, 137 So. 3d 418, 424 (Fla. 4th DCA 2014).

The Third District Court of Appeal determined that the trial court impermissibly allowed discovery that was irrelevant with respect to plaintiff’s burden of proof under the applicable statute. In reaching its conclusion, the Santos court compared the statute setting forth the plaintiff’s burden of proof in commercial premises liability cases, Florida Statute § 768.0755 (2010), to the one it repealed — Florida Statute § 768.0710 (2009). Florida Statute § 768.0755(1) states: 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 (emphasis added).

The Third District Court of Appeal concluded that the trial court allowed the plaintiff to obtain information that was irrelevant with respect to her burden of proof under the applicable statute. In reaching its conclusion, the Court compared the applicable statute, Florida Statute § 768.0755 (2010), to the repealed Florida Statute § 768.0710 (2009). Florida Statute § 768.0755(1) states, 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 (emphasis added).

f’s and defense lawyers make when mediating slip-and-fall cases, and how to avoid them.The Elements of a Slip-and-Fall Case Typically, a slip-and-fall is an umbrella term used for incidents where someone fell and was injured on another person’s property. The plaintiff must prove that the poor condition of the property or a hazard caused him or her to fall and become hurt, and that the owner or possessor of the property knew, or should have known, about the potential danger but did not remediate it.While slip-and-fall actions can be brought in any state, some states have laws which specifically address this cause of action. That’s the case in Florida, where chapter 768 provides the elements of a slip-and-fall case, including that if someone 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.” Florida Statute§ 768.0755(1).That requirement — proving that the business had knowledge of the dangerous condition is one of the challenges you face if you’re representing the plaintiff in a slip-and-fall case. The statute further provides that, “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.” Florida Statute§ 768.0755(1).This statute was changed a few years ago to place the burden on the plaintiff to show that the foreign substance was on the floor long enough that the property owner should have known about it. However, it can be a Catch-22. That is, if the claimant claims says, before I fell, I saw tracks or footprints in the foreign substance on the ground,” the defense can argue that the claimant should have seen the foreign substance and av

’S NOTE: Since 2010, Florida law has imposed a requirement that plaintiffs in slip-and fall cases demonstrate a business had actual or constructive knowledge of a transitory foreign substance allegedly causing the slip-and-fall. The requirement was favorable to premises owners, who previously had to defend these cases without a knowledge requirement. In particular, defendants have been able to resolve cases through motions for summary judgment that were not previously available.This article was originally published in vol. 41, no. 3 of the Trial Advocate, published by the Florida Defense Lawyers Association and is included here with permission.[1]Morales v. Walgreen Co., JVR No. 1808150023, 2018 WL 3940844 (FIa. 11th Jud. Cir. April 18, 2018); Noguera v. Colonial Grocery Plaza, Corp.d/b/a Bravo Supermarket, No. 1 5 FJVR 5-25, 2015 WL 2152747 , (Fla. 9th Jud. Cir. Jan. 26, 2015); Webster v. Wal-Mart Stores East, LP, No. 20 FJVR 5-8, 2020WL 2465919 (Fla. 7th Jud. Cir. Jan. 15, 2020).[2] Florida Statute 768.0755(1)(a-b), Fla. Stat.[3] See Howard v. MMMG,299 So. 3d 40, 42 (Fla.4th DCA 2020) (“Summary judgment may be granted based on impermissible inference stacking”)(quotation omitted); Santa Lucia v. LeVine, 198 So. 3d 803, 809 (Fla. 2d DCA 2016) (a plaintiff must prove causation without an impermissible stacking of inferences); McCarthy v. Broward College, 164 So. 3d 78, 82 (Fla. 4th DCA 2015) (affirming summary judgment in slip and fall case where plaintiff’s theory was based on impermissible inference stacking); Shariz v. Miulli, 127 So. 3d 613, 6180 (Fla.2d DCA 2013) (“the plaintiff must establish causation without an impermissible stacking of inferences”).[4]Francella v. Furman’s, lnc. D/B/A Burger King, 22 FJVR 4-27.[5]Holloway-Ramos v. Life Care Centers of America, lnc., d/b/a Life Care Center of Orange Park, 17 FJVR 3-9.[6]Archambault v. Phase Three Star LLC, d/b/a Hardee’s Restaurant, 19 FJVR 2-1 (2018).