Whether you operate an amusement park, a restaurant, or a grocery store, the thought of a customer slipping and falling on the premises can cause an unsettling, if brief, feeling of panic in proprietors who invite the public onto their premises for the purpose of doing business. Since a slip-and-fall case can easily result in a significant judgment for damages, business owners are right to be concerned. However, while business establishments should remain proactive in preventing a dangerous condition on the premises, a new Florida law defining the scope of liability for transitory foreign substances may operate to protect against successful slip-and-fall lawsuits.

In order to understand the ramifications of the new Florida law, a brief history of transitory foreign substance liability is helpful. Prior to 2001, when a person slipped and fell on a transitory foreign substance, such as food, water, or grease, the injured person had to prove that the business had actual or constructive knowledge of the dangerous condition and that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.

In 2001, the Florida Supreme Court rendered its opinion in Owens v. Publix Supermarkets, Inc., and changed the standard of proof in slip-and-fall cases. The Court found that premises liability cases involving transitory foreign substances are appropriate cases for shifting the burden to the premises owner or operator to establish that it exercised reasonable care under the circumstances, thereby eliminating the specific requirement that the customer prove that the store had constructive knowledge of the transitory foreign substance. Thus, under this new standard, the existence of a foreign substance on the floor of a business premises that caused a customer to fall is not a safe condition, and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.

Unhappy with this ruling, the Florida legislature adopted Florida Statute section 768.0710 in 2002. This statute recognized that a business owner owes a duty of reasonable care to its customers to maintain the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage. However, rather than force the premises owner to prove that it acted reasonably, the statute required the plaintiff to prove that: the business owed a duty to the plaintiff; the business acted negligently by failing to exercise reasonable care; and the failure to exercise reasonable care by the business was the cause of the loss, injury, or damage. By enacting this statute, the legislature effectively overruled the Florida Supreme Court’s decision in Owens.

However, remaining dissatisfied with the manner in which Florida courts were dealing with transitory foreign substance liability cases, the Florida legislature repealed section 768.0710 in 2010, and enacted Florida Statute section 768.0755. According to the legislature, the purpose of this new transitory foreign substance statute is to approximate the law with respect to slip-and-fall suits as it existed before the Court’s Owens decision.

Effective July 1, 2010, the newly-enacted section 768.0755, entitled “Premises liability for transitory foreign substances in a business establishment,” provides that 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
  • the establishment should have taken action to remedy it.

Additionally, the statute provides that a plaintiff may prove constructive knowledge by circumstantial evidence showing that:

  • 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
  • the condition occurred with regularity and was therefore foreseeable.

Although this new statute may operate to make it more difficult for an injured customer to successfully sue a business establishment for a slip-and-fall incident, owners and operators of business establishments must still observe their duty to prevent dangerous conditions from occurring. The new statute by no means alleviates a business establishment from its duties in this regard. Moreover, the statute’s constructive knowledge provision could allow a plaintiff to prevail in a slip-and-fall case if the business owner or operator fails to routinely inspect the premises for hazardous conditions.

The lack of any judicial opinions applying this new statute makes it impossible to predict the precise manner in which it will impact the law of transitory foreign substances. Nevertheless, the law clearly preserves a claimant’s right to sue for damages resulting from a slip-and-fall, as well as a business establishment’s duty of care in this regard. Regardless of whether this new law is seen as a victory for business owners and an obstacle for plaintiffs, those who operate business establishments wherein people are invited onto the premises would be wise to continue their preventative efforts as though the law had not changed. Reducing your commitment to maintaining a safe business establishment would be shortsighted, and it could serve to transform the cause of those moments of panic from imagined to real.

For more information about managing the risks associated with slip-and-fall liability, contact us.