In order to prevail in a slip-and-fall lawsuit in Florida, it is not enough that the plaintiff simply fell on someone else’s property. One has to show first of all that the property owner owed a duty of care to that individual, that the duty was breached and that it was the breach of duty that caused the fall and subsequent injury.
This has gotten even more difficult in recent years as it pertains to slips on foreign substances with the legislative introduction of F.S. 768.0755 in 2010, which supplanted the old law, F.S. 768.0710. The law has widely been praised by the business and insurance industry, but it’s not so good for injury plaintiffs, as it imposes a greater burden of proof to establish liability.
Before this law was passed, plaintiffs had to show that the business or premises owner in possession or control acted with negligence by failing to exercise reasonable care. The statute expressly stated that actual or constructive notice that a transitory or foreign object or substance (something slippery on the floor) wasn’t a required element for plaintiffs to prove. That’s not the case anymore. Plaintiffs now have to show actual or constructive knowledge.
What does this mean? Actual knowledge means the business establishment was informed specifically about that particular substance on the floor or created it and didn’t take any action to remedy it or to warn patrons. Constructive knowledge means even if the business didn’t know, it should have known because:
- The condition occurred with regularity and thus the property owner could have foreseen it;
- The condition was on the floor or stairs for long enough that had the property owner been exercising ordinary care, it would have been discovered.
An example of constructive notice would be if a shopper spills a gallon of milk on the floor at the grocery store, and the store hasn’t noticed it or cleaned it up after the passage of several hours. Because spills are expected in locations like this where customers are directly handling merchandise with packages that may potentially fall or break, stores have a duty to regularly inspect or monitor the site to make sure it’s free of hazards for its other business patrons.
A recent case of a Florida slip-and-fall lawsuit that did not gain traction was weighed by the Third District Court of Appeals. In Perez-Rios v. The Graham Companies, the plaintiff had scant little evidence that there was even a defect, let alone that the property owners were aware of it and failed in the duty to address it.
Defendant in the case was a company that owns several strip malls throughout the state. According to plaintiff’s testimony, it was a clear day as she was walking up some stairs that led to a building. The step was four-inches high, which was in line with applicable building codes. The stair was easily visible, as it was white stone, while the steps above and below it were red brick. Photos of the spot where she fell did not appear to indicate any defect on the step or any transient substance on the ground. There was also no allegation of inadequate lighting, uneven wear-and-tear, a foreign object on the step or any other wet or slippery conditions.
Plaintiff was asked directly to identify whether there was any defect in the step, and she could not. She also did not provide the court with an expert witness report or testimony that might have established that there was some defect in the step.
The trial court granted summary judgment to defendant and the appeals court affirmed.
We write about this case not to discourage plaintiffs from pursuing action, but to explain that these cases often require more evidence than some people initially suspect. That’s why it’s imperative to discuss your options with an experienced injury lawyer.
If you have been injured in Fort Lauderdale, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Perez-Rios v. The Graham Companies, Jan. 20, 2016, Florida Third District Court of Appeal
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Injury Lawyer in Bike Accident Seeks Compensation, Jan. 17, 2016, Fort Lauderdale Injury Attorney Blog