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Is Your Slip and Fall Case Slipping Away to Nothing? Florida’s New Slip and Fall Law

Law Offices Cytryn & Velazquez, P.A.
2825 North University Drive
Suite 350
Coral Springs, FL 33065
(954) 255- 7000

Dan Cytryn, Esq. is a board-certified civil trial attorney with over 43 years of experience handling slip/trip and fall cases and other personal injury lawsuits. He is a past president of the Broward County Trial Lawyer’s Association and has tried more than 100 personal injury jury trials to verdict. Mr. Cytryn has argued or participated in more than 40 appellate cases, including the relevant premises liability cases Ventimiglia v. TGI Fridays, Inc., Hilliard v. Speedway Superamerica LLC, Glanzberg v. Kauffman, and Calloway v. Dania Jai Alai Palace, Inc.[1] Mr. Cytryn has also had the honor of successfully arguing before the Florida Supreme Court in TGI Fridays, Inc. v. Dvorak, which case emanated from a slip and fall case.[2] He is a member of ABOTA and has served on the Civil Procedure Rules Committee for more than 10 years. He has a BBA from the University of Miami in 1978, and is a graduate of Nova Law School. He has been an EAGLE donor for this organization for twenty years. Mr. Cytryn is married and the father of three boys.

Florida Law Prior to July 1, 2010 -- § 768.0710, Fla. Stat. (2009)
1. § 768.0710, Fla. Stat. was enacted in response to mitigate the effect of Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001).
  1. Owens stemmed from a slip and fall on a discolored piece of banana at a Publix supermarket where the Florida Supreme Court held that “where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.”
  2. Owens, certainly up to the point of the statute, created probably the most liberal standard in the country for getting a slip and fall case to the jury.
2. § 768.0710, Fla. Stat. set forth the standard for maintenance of business premises in regards to transitory foreign objects or substances:
  1. “The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.” § 768.0710(1), Fla. Stat. (2009).
  2. Still, this probably was one of the most liberal standards nationwide and allowed almost all slip and fall cases on some foreign object to get to the jury.
3. § 768.0710, Fla. Stat. required a person injured as a result of a slip and fall on a transitory foreign object or substance only to prove
  1. Duty,
  2. Failure to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,
  3. Causation, and
  4. Damages
4. § 768.0710, Fla. Stat. expressly excluded actual or constructive notice of the transitory foreign object or substance as a required element of proof. Rather, the statute allowed evidence of notice or lack of notice to be considered together with all other evidence.
Florida Law as of July 1, 2010
1. House Bill No. 689 (officially signed into law on April 14, 2010) repealed § 768.0710, Fla. Stat. and created § 768.0755, Fla. Stat. in its stead.
2. § 768.0755, Fla. Stat. (2010) became effective on July 1, 2010.
3. The House of Representatives Staff Analysis set forth the foreseeable outcome of the new statute by stating, “This bill may affect the outcome of litigation in slip and fall suits in a manner that is more frequently favorable to business establishments than under the current law.” House of Representatives Staff Analysis, March 9, 2010.
4. § 768.0755, Fla. Stat. did not adopt the “duty” language previously set forth in § 768.0710(1).
5. § 768.0755, Fla. Stat. requires a person injured during a slip and fall on a transitory foreign substance in a business establishment to prove that the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.
  1. Constructive knowledge can be proven with evidence showing that:
    1. 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
    2. The condition occurred with regularity and was therefore foreseeable. § 768.0755 (1)(a)-(b), Fla. Stat. (2010).
6. § 768.0755, Fla. Stat. expressly states that the statute “does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.”
7. The new statute attempts to “approximate the law with respect to slip and fall suits as it existed before 2001.” House of Representatives Staff Analysis, March 9, 2010. This, of course, is an effort to restore the law to the state it existed in prior to Owens and § 768.0710, Fla. Stat.
Is § 768.0755, Fla. Stat. retroactive?
1. The new statute makes proving a slip and fall on a transitory foreign object much more difficult, so obviously whether it will be applied to falls prior to July 1, 2010, is of great interest to both plaintiff and defense attorneys alike.
2. It did not take long for arguments of retroactive application to arise and for at least one court to address the issue. Kelso v. Big Lots, 2010 WL 2889882 (M.D.Fla. 2010).
3. Kelso is the result of a slip and fall at a Big Lots store which occurred on October 14, 2006. Suit was brought against Big Lots on July 9, 2009, and the case was in federal court based on diversity jurisdiction. Florida substantive law applied under the Erie Doctrine. Big Lots filed a Motion for Determination Regarding Applicability of Florida Statutes Section 768.0755 or Florida Statutes Section 768.0710.
  1. Defendant’s Argument
    1. The new statute is a procedural burden of proof enactment and therefore applies to all pending cases.
  2. Plaintiff’s Argument
    1. The new statute affects substantive rights and creates new obligations or liabilities which, in the absence of an express legislative statement to the contrary, must be presumed to apply prospectively.
  3. District Court Judge’s Case Law Recitation
    1. It is a well-established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively. Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996); Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425 (Fla. 1994).
    2. A statute that is procedural in nature does not share the same presumption and may be applied retroactively. State Farm Mut. Auto. Ins. Co. v. LaForet, 658 So. 2d 55, 61 (Fla. 1995); Weingrad v. Miles, 29 So. 3d 406, 409 (Fla. 3d DCA 2010).
    3. Substantive law prescribes rights and duties, while procedural law concerns the means and methods to enforce those rights and duties. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).
    4. If a statute creates new legal obligations or attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application. Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999); Landgraf v. USI Films Prods., 511 U.S. 244, 270 (1994); Arrow Air, 645 So. 2d at 425.
  4. District Court Judge’s Reasoning and Holding
    1. The legislature did not indicate intent for the statute to apply retroactively.
    2. The new statute adds a new element to the slip and fall claim, creating a new legal obligation and attaching new legal consequences to events that took place before the statute’s enactment, thus affecting the plaintiff’s substantive rights.
    3. The statute does more than alter the burden of proof in a case, it creates an entirely new element that the plaintiff must establish and requires the plaintiff to prove new substantive facts.
    4. The judge distinguished all three cases defense counsel cited to in furtherance of the procedural argument: City of Clermont v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984); Litvin v. St. Lucie County Sherrif’s Dept., 599 So. 2d 1353 (Fla. 1st DCA 1992); McCarthy v. Bay Area Signs, 639 So. 2d 1114 (Fla. 1st DCA 1994). The judge reasoned that none of the cases required a plaintiff to present affirmative evidence to prove a new substantive element of a claim, and none of them involved the plaintiff proving actual or constructive knowledge of the part of the defendant.
    5. Holding: “Because there is no indication of legislative intent to apply Florida Statute Section 768.0755 retroactively, and because the statute affects the plaintiff’s substantive rights, the statute may not be applied retroactively.”
4. Is the retroactive argument settled or would another angle allow for retroactive applicability?
  1. Is the statute remedial in nature?
    1. “It is well established that remedial statutes or [those] which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within … the general rule against the retrospective operation of statutes.” Ziccardi v. Strother, 570 So. 2d 1319 (Fla. 2d DCA 1990) (original quotes and citation omitted).
    2. Both the House and Senate bill analyses point out the new statute was drafted to approximate the law as it existed before 2001.
    3. The new statute specifies that it does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
How to Get Past Statute Whether Retroactive or Not or if the cause of action arises after July 1, 2010:
1. Defendant created the condition
2. Actual Knowledge of Dangerous Condition
  1. When there have been numerous complaints or verbal or written warnings to the owner putting them on notice of a recurring problem, a jury question is created as to whether the owner exercised reasonable care to guard against a foreseeable danger. Bennett v. Mattison, 382 So. 2d 873 (Fla. 1st DCA 1980); or,
  2. When employees or agents have actual knowledge regarding a particular condition, their knowledge is imputed to the corporate owner. St. Petersburg Coca-Cola Bottling Co. v. Cuccinello, 44 So. 2d 670 (Fla. 1950); Bertram Yacht Yard, Inc. v. Florida Wire & Rigging Works, Inc., 177 So. 2d 365 (Fla. 3d DCA 1965).
3. Constructive Knowledge of Dangerous Condition:
  1. 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. § 768.0755(1)(a), Fla. Stat. (2010).
    1. “[E]vidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery.” Jenkins v. Brackin, 171 So. 2d 589, 591 (Fla. 2d DCA 1965).
    2. Genuine issue of material fact existed where the record showed that sauerkraut-like substance which caused slip and fall had been on the floor for at least five minutes and black color of substance could suggest substance had been on floor longer than five minutes. Ress v. X-Tra Super Food Centers, Inc., 616 So. 2d 110 (Fla. 4th DCA 1993).
    3. Foreign substance outside the gas station was found to have been on the ground for a sufficient length of time to show constructive knowledge of dangerous condition based on testimony that plaintiff approached the full-service lane, did not see any car in or exiting the lane, and did not see any employee of the gas station in the lane that would evidence compliance with defendant’s stated maintenance procedure. Defendant testified that the station had a procedure in place for inspecting areas around islands at regular intervals as cars exited the service area and before the next car pulled in. Cain v. Brown, 569 So. 2d 771 (Fla. 4th DCA 1990).
  2. The condition occurred with regularity and was therefore foreseeable. § 768.0755(1)(b), Fla. Stat. (2010).
    1. Sufficient evidence was presented for fact finder to determine that constructive notice existed of a danger condition based on the theory that the condition occurred with regularity and was therefore foreseeable. Testimony of assistant manager established that rain frequently blew or came under the door and safety cones, which were absent during this fall, were usually placed to warn of such danger during rainy weather. Brooks v. Phillip Watts Enterprises, Inc., 560 So. 2d 339 (Fla. 1st DCA 1990).
    2. Testimony that carpet had previously been used in an elevator because of a recurring accumulation of water, tar, and other slippery substances due to bathers coming from the beach and pool was relevant to demonstrate an ongoing problem which was known to the building management. Firth v. Marhoefer, 406 So. 2d 521 (Fla. 4th DCA 1981).
    3. Evidence that it was common for the fronton aisles to be littered with food drinks because patrons carried food and drinks from the service centers to their seats was relevant to show a recurring or ongoing problem and to show foreseeability of a dangerous condition. Fazio v. Dania Jai-Alai Palace, Inc., 473 So. 2d 1345 (Fla. 4th DCA 1985).
4. Negligent Maintenance/Mode of Operation
  1. Testimony of a restaurant owner-manager-waitress offered by the plaintiff that, in her experience at other restaurants which she had operated or worked at, anti-skid safety mats were used at water stations similar to the place where the accident, in this case, took place was relevant to establish that the failure to so provide such mats constituted negligence. Stambor v. One Hundred Seventy-Second Collins Corp., 465 So. 2d 1296 (Fla. 3d DCA 1985).
  2. There is an issue concerning whether the legislature intended to preclude negligent mode of operation as a theory to allow the case to get to the jury, but this case and Fazio above did pre-exist the Owens decision.
Specific Additional Allegations to Consider Pleading
1. In slip and fall incidents against restaurants, you may also want to consider pleading:
  1. Grease trekking
  2. Failure to have a non-slip floor surface
  3. Negligent delivery of drinks and other liquids.
What do you do now with cases that do not meet the criteria of § 768.0755?
1. Settle Now!
What Steps to Take to Avoid Summary Judgment or Directed Verdict
1. Standards to consider making against the summary judgment or directed verdict
  1. “Motions for a directed verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. The trial judge is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the opposing position. Furthermore, it is ordinarily the function of the jury to weigh and evaluate the evidence, particularly in negligence cases where reasonable people often draw different conclusions from the same evidence.” Perry v. Red Wing Shoe Co., 597 So. 2d 821 (Fla. 3d DCA 1992) (quotation and citations omitted).
  2. “The fact that circumstantial evidence is relied upon in a civil action at law does not alter either the rule that it is solely within the province of the jury to evaluate or weigh the evidence or that the burden of establishing a right of recovery by a preponderance of the evidence is upon the plaintiff. Consequently, in such a case if the circumstances established by the evidence be susceptible of a reasonable inference or inferences which would authorize recovery and are also capable of equally reasonable inference, or inferences, contra, a jury question is presented. We cannot overemphasize our use of the adjective ‘reasonable’ as modifying the noun ‘inference’. Of course if none of the inferences, on the one hand, accords with logic and reason or human experience, while on the other hand, an inference which does square with logic and reason or human experience is deducible from the evidence, the question is not for the jury but is one of law for the court.” Voelker v. Combined Ins. Co. of America, 73 So. 2d 403, 406 (Fla. 1954).
2. Expert testimony may get you by summary judgment or directed verdict.
  1. There are a variety of expert witnesses that may establish a dangerous condition.
    1. Human Factors
    2. Engineer
    3. Architect
    4. Maintenance
    5. Restaurant Flooring
    6. Carpeting
    7. Paint Expert
    8. Botanist or Biologist
    9. Coefficient of Friction
    10. 10. Coating and Non-skid
  2. Expert testimony is considered direct evidence and therefore precludes an inference upon inference analysis.
    1. “Although a conclusion expressed by an expert witness in response to a hypothetical question, may in one sense, be characterized as an inference, we do not believe it to be the character of inference which falls within the prohibition against constructing an inference upon an inference to arrive at an ultimate conclusion. To hold otherwise would render incompetent every opinion of an expert witness given in response to a hypothetical question if it were found that one of the several facts forming the basis of the question consisted of an inference drawn from circumstantial evidence. LaBarbera v. Millan Builders, Inc., 191 So. 2d 619, 622 (Fla. 1st DCA 1966).
What You Will Need to Obtain through Discovery
1. Interrogatories
  1. Send interrogatories to obtain information on prior and subsequent accidents.
    1. Incidents up to 3 ½ years prior to the accident have been held admissible into evidence. First Arlington Inv. Corp. v. McGuire, 311 So. 2d 146 (Fla. 2d DCA 1975).
    2. Not only are incidents at the particular location where the incident occurred discoverable, but incident reports at other similar locations are also discoverable. Hilliard v. Speedway Superamerica LLC, 766 So. 2d 1153 (Fla. 4th DCA 2000) (discovery of similar incidents at any store with similar condition owned by the defendant within a three year period was proper and not overbroad or burdensome); See also, Publix Supermarkets, Inc. v. Martin, 739 So. 2d 174 (Fla. 2d DCA 1999) (name and address of any person who had been injured by a similar condition in any store over a five year period, the date of the incident, and the location of the store were available to plaintiff through discovery).
    3. Always ask for a minimum of five years prior to and a minimum of one year subsequent to the incident. Subsequent incidents are admissible into evidence, but there is a higher standard for the admission of subsequent incidents than for the admission of prior incidents, and of course, they are not admissible to show notice. Glanzberg v. Kauffman, 788 So. 2d 252 (Fla. 4th DCA 2000) (subsequent similar falls approximately seven months later were not too remote in time and were probative of whether step was a dangerous condition); See also, Wood v. Walt Disney World Co., 396 So. 2d 769 (Fla. 4th DCA 1981).
  2. Send interrogatories to obtain contact information on employees, particularly, former employees who may be more willing to come forward regarding notice and hazardous conditions on the premises than present employees .
2. Requests for Production
  1. At the same time that you send interrogatories on prior and subsequent incidents, make sure you send a Request for Production. If the defense objects to the request, file an affidavit which sets forth facts which demonstrate that you have a need for the materials in the preparation of the cases and are unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fla. R. Civ. P. 1.280(b)(3).
    1. Unfortunately, this usually does NOT work.
  2. The incident reports are so much better than the interrogatory information because you have more information to try to locate the victim, you have names of witnesses, and the reports themselves are admissible into evidence. Liberty Mut. Ins. Co. v. Kimmel, 465 So. 2d 606 (Fla. 3d DCA 1985).
  3. Make sure you are getting all the incident reports. Ask for customer and employee incident reports.
3. Depositions
  1. Wait to take the depositions of the business establishment’s employees until they are ex-employees, if possible. You can call any ex-employees on the telephone and speak to them and obtain affidavits or whatever else that you need. Ethics Advisory Opinion, 88-14.
  2. Make sure to ask employees if they have ever slipped at the premises or if they know of other employees who have slipped at the premises.