Florida Appellate Court Applies Slip and Fall Law Retroactively

1097997_airport_1.jpgA Florida business owner owes two duties to those he or she invites into their business: (1) to take ordinary and reasonable care to keep the premises of the business safe and (2) to warn of any dangers actually or constructively known by the owner that the visitor to the business could not be aware of on his own.

In 2001, a ruling in a Florida Supreme Court case shifted the burden of proof to business owners who were sued when someone slipped and fell on a foreign substance on their premises. The owners had to show they exercised reasonable care in maintaining the property. This was a change from earlier case law that required the plaintiff to prove the owner’s negligence.

The Florida Legislature responded by enacting an amendment to the Florida statutes. The amendment took effect in 2010. It required that a plaintiff prove the breach of the second duty in slip and fall premises liability cases: that the owner knew or should have known of a slip and fall hazard in a business establishment. This essentially returned slip and fall law to the state it had been in before the Supreme Court’s 2001 ruling.

Recently, the Florida District Court of Appeals considered the issue of whether the amendment could have retroactive effect on a plaintiff’s case stemming from her slip and fall on the floor of the Miami International Airport. The plaintiff in that case filed suit in 2009. At that time the slip and fall statute in effect did not require the plaintiff to prove the owner’s actual or constructive knowledge of a transitory foreign substance in order to recover for premises liability.


The plaintiff did not find evidence that the defendants knew or should have known about the liquid on the floor that caused her accident. In 2011, the defendants filed a motion asking the court to retroactively apply the new statute to the plaintiff’s case.

The trial court granted the motion. This allowed the defendants to bring a motion for summary judgment that argued the case should be dismissed because the plaintiff had not proven the defendant’s actual or constructive knowledge of the liquid on which she fell. Summary judgment was granted.

The plaintiff appealed. The appellate court explained that the right question to ask when applying a statute retroactively was whether the statute was procedural or substantive. If the statute was procedural, it could be applied retroactively. While substantive law dealt with duties and rights, procedural law related to the means by which those duties and rights were to be given effect.

The plaintiff argued on appeal that requiring a plaintiff to prove actual or constructive knowledge of a dangerous condition was substantive. The defendants argued it was procedural.

The appellate court agreed with the defendants. It explained that the amendment merely codified a means and method by which a plaintiff demonstrates the defendant breached its duty. The amendment gave the plaintiff, rather than the defendant, the burden of proving actual or constructive knowledge.

The appellate court also found that the plaintiff had not produced any evidence showing the defendant failed to maintain the property or knew or should have known about the water on which she slipped.

Due to the amendment to the law mentioned above, slip and fall cases can be difficult for Florida personal injury lawyers to prove. Therefore, it is important to retain a plaintiff’s attorney with a track record of success in this area who can make sure you get the most favorable outcome possible. Call the experienced South Florida premises liability attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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