Proving a Slip and Fall on Business Premises
A Quick Primer
Insurance adjusters and personal injury lawyers commonly refer to accidents where people are hurt in a fall and need medical care as “trip and fall” and/or “slip and fall” claims. There are all sorts of circumstances where someone can get hurt from falling down at a business or commecial location, including wet, slick surfaces, missing or poorly maintained floor matts, poor floor maintenance or because of unseen hazards.
What Law is Used to Prove a Slip and Fall Claim in Florida?
Both Florida case law (past court cases) as well as a Florida statute written specifically to deal with slip and fall accidents on commercial property (or “business premises”) provide legal guidance with these claims.
When a slip and fall lawsuit is filed in Broward County (Broward County classifies a slip and fall lawsuit as a premises liability case) or Palm Beach County, then the case precedent of the Fourth District Court of Appeals, as well as the Florida Supreme Court, will be the most persuasive law to use to when arguing an issue before the court. If the accident occured in Miami-Dade County, then the best case law to use is an opinion from the Third District Court of Appeals.
What is the Burden of Proof in a Florida Slip and Fall Case
In 2010, Florida law changed for people who are hurt in slip and fall accidents. As a result of the change, the “burden of proof” shifted from business owners to injury victims and now an injured person has to show that a property owner was negligent and that negligence caused the victim's injuries. A plaintiff must now provide evidence of the actual or constructive knowledge by the business owner of a danagerous condition.
It is the plaintiff’s burden to talk to witnesses and gather documents (photos, etc.) and find sufficient authenticated, admissible evidence of the defendant’s knowledge.
It is not the defendant’s duty to explain to the jury here what they knew or did not know, actual or constructive. It is the evidence burden of the injury victim to show that the property owner was negligent.
Burden of Proof in Florida Slip and Fall Cases Involving Foreign Substance Has Switched Between Hurt Person and the Business Owner
In 2001, the Florida Supreme Court published its opinion in Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001). That case changed the burden of proof in premises liability lawsuits where the victim was hurt in a fall caused by a foreign substance; according to the Owens decision, the owner or operator of the premises where the accident happened had the responsibility of bringing evidence to show that it had exercised reasonable care in maintaining the premises.
Owens “…eliminat[ed] the specific requirement that the customer establish that the store had constructive knowledge" of the existence of the transitory foreign substance, Owens at p. 331, by “… affecting the burden of proof." Owens at p. 331 n.10.
Because the Owens decision was not a popular decision with many business owners and other political interest groups, in 2001 the Florida Legislature enacted Florida Statute 768.0710 (That law was then repealed by the Florida Legislature and replaced by Florida Statute 768.0755). The new law, Florida Statute 768.0755, is now the law in Florida that applies to certain types of slip and fall cases.
Letter of the Law: the Specific Language of Florida Statute Governing Fall Injuries on Business Premises
The Florida Legislature enacted the new premises liability law a few years ago; it became effective Florida law in August 2010. The statute, named “premises liability for transitory foreign substances in a business establishment,” states as follows:
(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.
What Does This Mean for Injury Victims Who Have a Slip and Fall Claim Against A Business?
In Florida, accident victims can still pursue a negligence claim for damages against an owner and operator of a business or commercial venture. This is true whether the slip and fall occurred at a hotel, spa, disco, nightclub, sporting arena, restaurant, shop, grocery store, campus cafeteria, etc., if a victim slipped and fell because of the operation’s negligence, then the victim can legally require the business owner to cover his or her costs and expenses (damages) resulting from the accident.
Simply stated, Florida did not change victims’ substantive rights. However, the procedure for proving the right to damages and the defendant’s negligence did change.
A victim now has more work to do when filing a claim; they have to present credible and admissible evidence of the business owner's knowledge. Now, the plaintiff’s burden of proof includes proving that the owner or operator:
How Can a Personal Injury Lawyer Add Value in Proving a Slip and Fall Claim?
As you can see, premises liability cases in Florida are harder now for accident victims than they were in the past because the burden of proving what the defendant knew or should have known is placed upon the victim, not the business.
An experienced personal injury attorney (especially one who is an expert in civil trials) adds value here because of their ability to help victims discover facts (witness statements, depositions, video survelliance, cleaning logs, cleaning solutions used to clean and seal floors, understanding and measuring the coefficient of friction of the flooring (the floor's resistance to a slip and fall accident), etc.) and use those facts as admissible evidence in a Florida lawsuit (an experienced injury lawyer will know how to admit these facts into evidence and overcome defense arguments to exclude them) in order to obtain a fair and just outcome for their clients.
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