The personal injury law that applies when someone slips and falls on someone else’s property, they suffer an injury, and they bring a lawsuit is commonly called slip and fall law. This guide will help you understand Florida Slip and Fall law.
Any slip and fall accident lawyer will tell you, property owners are not responsible for every injury that happens on their property. In order to bring a slip and fall lawsuit and hold a property owner accountable, the property owner must have done something wrong that causes or substantially contributes to the injury.
In Florida, a property owner has certain responsibilities to people invited onto their property. When a property owner fails to comply with these responsibilities, they can be sued for injuries caused by their failure. These responsibilities are called legal duties and they are described in the Florida premises liability jury instruction. The first duty is to maintain the premises in a reasonably safe condition, the second duty is to correct a dangerous condition the landowner either knew or should have known existed. The third duty is to warn of a dangerous condition. Click here to learn more about Florida Premises Liability Law.
The retail industry did not like being held responsible under this standard when someone slips and falls on their property. So, they lobbied the legislature to pass a special law to protect them from slip and fall lawsuits. The law is Florida law 768.0755 and is commonly referred to as the transitory foreign substance law. The Florida Supreme Court, in the case of Owens v. Publix Supermarkets, says that a transitory foreign substance is any liquid or solid substance, item, or object located where it does not belong.
Under Florida Law 768.0755, when a person suffers a slip and fall injury on a transitory substance, they must prove the business had actual or constructive knowledge of the dangerous condition and should have cleaned it up. Constructive knowledge can be shown by proving:
- The dangerous condition existed for long enough for the store to figure out it was there; or
- The condition occurred with regularity and was therefore foreseeable
This means that any time something is dropped on the floor in a supermarket, grocery store, restaurant, or other retail business, a consumer that falls on the substance and injures themselves must prove the business should have known the condition existed long enough to clean it. This is often a difficult, if not impossible task for consumers to prove. The person that caused the substance to be on the ground is usually long gone by the time the fall occurs. The stores make it even more difficult because they rarely investigate how long the substance was on the floor immediately after the fall. Furthermore, the stores often keep no records of how often they clean up a particular area. By the time the consumer hires a slip and fall attorney, any evidence of the time that transpired may have disappeared.
Proving the Dangerous Condition Existed for Long Enough to Have Cleaned it up Before the Fall
Stores will rarely admit they knew there was something on the ground that could cause a consumer to slip and fall. That means to win, you must prove the store had constructive knowledge of the dangerous condition. The most common way to prove this is to show the condition was there long enough for the store to have done something about it. There are several ways the courts have said this can be proven. The first way is direct evidence from store security cameras. Occasionally the security cameras record the events. But often we are left to prove knowledge by other means.
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No Employees in The Area Before the Fall
Sometimes observations from the injured person about whether there were employees in the area before the fall are enough to present the case to a jury. For example, in Lynch v Target, the injured person testified she was in the aisle where she fell for 15 minutes before the fall and no employees entered the area during that time. The court concluded a jury should decide if that was enough time for Target to have found the substance on the floor and cleaned it up before the fall.
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Food on the Floor
When a slip and fall occurs because there is food on the floor, what the food looks like can be important. Sometimes the condition of the food can be used to show it was on the ground for long enough that it should have been cleaned up. For example, in Ramey v. Winn Dixie, the court concluded that partially melted butter with lumps in it was there long enough for a jury to decide whether to hold the store accountable for injuries caused by the fall. In Ress v. X-tra Super Food, sauerkraut that was gunky, dirty and wet and black was enough. In Washington v Pic-N-Pay, it was collard greens that were old, nasty and looked like they had been there quite a while. In Camina v. Parliament, it was ice cream that was thawed, dirty, and splattered.
On the other hand, when there is nothing about the food that would indicate how long it was on the floor, courts have not let consumers bring lawsuits for their injuries. For example, in Publix v. Sanchez, a piece of cake on the floor was not enough by itself because there was no evidence of how long it was there. Similarly, in Winn Dixie v. Gaines, dried rice and beans on the floor with no evidence they appeared old or were crushed, or the package was broken was not enough.
Liquid or Slippery Substance on the Floor
Liquid on the floor could be water, soda, or any other fluid. Slippery substances could be grease or oil. Regardless of the liquid or slippery substance, the transitory foreign substance statute requires the consumer to prove it was on the ground long enough for the store owner to have cleaned it up before the fall. In Woods v. Winn Dixie, describing the substance as very dirty, trampled, containing skid marks, scuff marks, and chewed up was enough to let a jury decide. In Newalk v. Florida Supermarkets, testimony that oil spots appeared old worked.
On the other hand, courts have dismissed cases when there is no evidence of how long the liquid or slippery substance was on the floor. For example, in Walmart v. King, the court dismissed a slip and fall case because there were no signs of age such as skid marks, smudges, or the like in a slippery, oily, clear substance.
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Conditions that Occur with Regularity and are Therefore Foreseeable
Supermarkets like Publix, Winn Dixie, Walmart, and Target or Drug stores like Walgreens claim a customer has to prove how long a substance was on the floor to hold them accountable. This is simply not the law. Florida Law 768.0755 clearly states that constructive notice of the dangerous condition can be proven by showing the condition occurred with regularity and was therefore foreseeable. As a result, a customer can show that liquid occurs on supermarket or drug store floors with regularity to meet the burdens of the statute. But the customer would still have to show that there was something the store could have done to reduce the likelihood that the plaintiff would not have fallen. One way to do this is by demonstrating supermarkets with regularly occurring spills should have a designated employee walking the store on a regular basis to look for spills.
The only case that discusses this issue does not involve a supermarket. But the concept is the same. For example, in Feris v Club Country, patrons routinely took alcoholic drinks onto the dance floor and spilled the liquid from the drinks on the floor itself. On the evening that Feris fell customers were again taking drinks on the floor and spilling them. Feris testified he fell in an alcoholic drink that was spilled on the dance floor. The court concluded a jury could decide the case because the condition of alcohol on the dance floor occurred with regularity and Club Country could have policed the dance floor to prevent people from taking drinks onto the floor.
Slippery Floors without a Transitory Foreign Substance
Sometimes floors inside stores are slippery even though there is no particular substance on the ground. In this situation the store will try to say the transitory foreign substance applies and that a customer has to prove how long the floor was slippery on that day. But that is not really the case. In Mabrey v. Carnival Cruise Lines, the court held that actual or constructive knowledge is irrelevant in cases not involving transitory foreign substances.
The way to hold the property owner accountable when the floor is slippery is to show that the store owner knew the floor was slippery in general regardless of the slipperiness on that particular day and to further show there was a way to make the floor slip resistant. For example, sometimes the material the floor is made of is simply too slippery to be used in a retail establishment. Other times you can show that customers frequently slipped on the floor. With this kind of evidence, the store owner can be held accountable for failure to either change the flooring or put mats down in the slippery area.
Comparative Negligence of the Person that Fell
In Florida, a jury is instructed to assess the negligence of all of the parties including the person that fell. If the jury concludes the person that fell had some responsibility for what happened, they can assign a percentage of fault to them. The court then reduces the amount of damages by the percentage assigned to the person that fell.
Supermarkets, grocery stores, and drug stores routinely take advantage of the comparative negligence law by trying to blame the person that fell for what happened to them. They do this by claiming the slippery area was open and obvious and the person that fell should have seen it and avoided it. This defense will not eliminate the stores responsibility to maintain the floor in a reasonably same condition. But it will eliminate the duty to warn of the dangerous condition. It may also convince a jury to assign a percentage of fault to the person that fell.
Sometimes blaming the person that slipped and fell is a legitimate defense. But most of the time its not. The reason blaming the person that fell is often not legitimate is because people do not naturally walk while looking down. In addition, substances on the floor are usually hard to see because they blend into the floor coloring. Lastly, retail establishments put their products at eye level to grab the customers attention. Its simply not fair to attract the consumers eyes upwards and them blame them for not seeing something on the floor.
Wet Floor Signs
Another slip and fall defense is that wet floor signs were put down. This defense seems valid to most people. But in reality, it is not. The reason is that the industry knows that consumers routinely do not see wet floor signs. In fact, when we get store security footage, we can always find customers looking at the displays and walking right by wet floor signs.
The problem comes in when store employees clean up a spill and leave the floor wet to dry over time. The employee thinks it’s good enough to put wet floor signs down while the floor is drying. But retail floor experts know that wet floor signs should only be used temporarily when the spill first happens while the employee that identifies the spill is getting the equipment to clean it up. Once the floor is cleaned, it should be thoroughly dried and the wet floor signs should be picked up.
Evidence to Gather at the Scene of a Slip and Fall Accident
The first thing you should do after a slip and fall is to tend to your injuries. But there is also crucial evidence you can gather if possible, to help prove what happened. The following things can absolutely make a difference to the outcome:
- Take pictures of the substance on the ground
- Take pictures of the store around the area of the fall
- Take pictures from many different angles, close up and far away
- Get the names and contact information of any witnesses
- Get the names of all employees that respond
- Fill out an incident report and ask for a copy of it.
Get your injuries evaluated and documented by a medical professional as soon as possible.
- Take pictures of your injuries
- Should you Hire a Slip and Fall lawyer
If you were injured in a slip and fall accident, you should definitely call a slip and fall attorney to see if you can hold the store accountable for the damages they caused by failing to maintain their floors in a reasonably safe condition. If you are injured anywhere in Florida, you can call Distasio Law Firm. We are here to help.