The Current Burden of Proof in Slip and Fall Injury Claims

What is the Current Burden of Proof for a Plaintiff Bringing a Premises Liability Claim Involving Transitory Foreign Substances (Spilled Liquids) in a Business Establishment in Florida?

Until July 1, 2010, the Florida Statute that controlled the burden of proof for a plaintiff bringing a premises liability claim involving transitory foreign substances against a defendant business establishment was Florida Statutes Section 768.0710. From May 30, 2002 until July 1, 2010, this statute covered claims such as when a customer of a store or other business slipped and fell upon water or other substance on the floor of the store due to the store’s negligence, and sustained injuries as a result of the store’s negligence.

Florida Statute Section 768.0710, which became effective on May 30, 2002, provides as follows:

F.S.A. 768.0710. Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.

(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.

(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:

(a)    The person or entity in possession or control of the business premises owed a duty to the claimant.

(b)    The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and

(c)    The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

Essentially, under the previous statute of Section 768.0710, the business owner had a duty to exercise reasonable care in inspecting, repairing, operating, and maintaining the premises so as to prevent substances from being present on the floor, which could cause injury to customers. The store also had a duty to warn customers of any substances existing on the floor. However, under the Section 768.0710, the plaintiff/customer did not have to show that the business had any actual or constructive notice or knowledge that the substance was on the floor at some point in time prior to the plaintiff slipping and falling on the substance.

However, the Florida Legislature enacted a new statute on July 1, 2010, which made these types of premises liability claims more difficult for plaintiffs since plaintiffs now had to show that the business had actual or constructive notice that the foreign substance was on the floor prior to the plaintiff slipping and falling, in order to prove their case. Florida Statute Section 768.0755 provides a new burden of proof for these types of premises liability claims, and the statute provides as follows:

 F.S.A. 768.0755. Premises liability for transitory foreign substances in a business establishment

(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.

            One issue that often arises in premises liability cases involving transitory foreign substances in a business establishment is when the incident occurred before the new statute was enacted on July 1, 2010, which statute/burden of proof controls?  Florida courts seem to be divided on this issue. Some courts have found that there was no legislative intent for the new statute to be applied retroactively to a cause of action that accrued prior to the enactment of the new statute. These courts have also found that since the new statute adds a new element (actual or constructive notice of the dangerous condition on the part of the business) that a plaintiff must prove, that this is a substantive change to the statute, which typically is not applied retroactively. Other courts have found that the change to the statute is merely procedural in nature, and as such, the new statute and burden of proof should be applied retroactively to claims occurring before July 1, 2010. It appears that this will continue to be a disputed issue for all causes of action in these types of premises liability claims accruing before July 1, 2010.

Tim Sanders, Burnetti, P.A.