Retroactive Application of a Statute in Florida Slip and Fall

lifts-in-shopping-mall-1386467-m.jpgA recent case arose from a slip and fall that happened in a mall in 2008. The plaintiff had gone to the mall to buy clothes. The owner of the mall had contracted with a company to clean the mall. The plaintiff slipped on clear slippery material on the floor. She suffered injuries and had to seek medical treatment.

In 2010, she sued the owner of the mall and the cleaning company for negligence. She alleged they should have warned her, should not have let the spill remain on the ground and should have had a clean up plan to make sure spills didn’t stay on the floor. Before trial, the defendants moved for a ruling that section 768.0755, Florida Statutes (2010), applied retroactively and would control the trial. The court denied the motion, and decided that the 2008 version of the statute would be operative.

During the trial’s voir dire, the trial court asked prospective jurors who had participated in a trial or had a family member who had been involved in a trial, other than a divorce. Four jurors answered that they hadn’t been involved in a trial previously. After the plaintiff’s presentation, the defendant moved for a directed verdict. They argued that the motion for directed verdict should have been granted because the plaintiff failed to show their actual or constructive knowledge of the spill or even that they’d breached the standard of care under 768.0710 or 768.0755.


The jury found the defendants negligent. They found no comparative negligence by the plaintiff and awarded her $269049.50 in damages. They apportioned 50% of this to each of the two defendants. The defendants filed a post-verdict motion and also argued that their motion to have the later statute apply retroactively and motion for mistrial should have been granted.

The defendant also made a motion to conduct juror interviews because certain jurors hadn’t disclosed their involvement in prior litigation. For example, one juror hadn’t disclosed four eviction and small claims cases within the past decade. Another failed to disclose she was a defendant in a 1991 civil case. Another failed to disclose two personal injury issues, a mortgage foreclosure and a domestic violence case within the past decade. Another failed to disclose she had been a defendant in two earlier cases. However the post-verdict motion was denied.

The plaintiff made a motion to have the owner held jointly and severally liable for the cleaning company’s negligence on the grounds that it owed her a non-delegable duty that couldn’t be reduced by asking another company to maintain the mall. The court denied the motion.

The owner appealed the denial regarding its request for retroactive application of section 768.0755, Florida Statutes (2010). The appellate court explained that whether a new law could be applied retroactively was a question of law.

The court also explained that before 2001, Florida required a slip and fall plaintiff to prove a property owner had actual or constructive knowledge of a dangerous condition in order to be held liable. In 2001, the Florida Supreme Court held that a foreign substance on a business premises floor that caused a fall was not a safe condition and created the presumption that the premises were not maintained safely. A defendant could rebut that presumption.

The Florida Legislature responded by enacting section 768.0710, Florida Statutes (2002). This returned the law to its previous state, placing the burden on a slip and fall plaintiff to prove (1) duty of the owner, (2) negligent failure to maintain, inspect, warn or operate on the premises, (3) that the failure to use reasonable care was the legal cause of the injury.

The plaintiff did not have to show actual or constructive notice, but this evidence would be part of all evidence considered. In 2010, another revision was enacted. This required a plaintiff to prove actual or constructive knowledge of a dangerous condition.

The appellate court explained that a substantive statute would not apply retroactively unless there was clear legislative intent for it to be applied that way. Purely procedural statutes would apply retroactively, however. In this case, the statute in issue was not just procedural. Imposition of the 2010 statute would abolish accrued slip and fall causes of action. The case was partially remanded for other reasons.

If you are seriously injured on somebody else’s property, contact the experienced Florida premises liability attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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