Articles Posted in Slip and Fall

Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.hospital

These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.

Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.

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In Florida slip-and-fall lawsuits, the plaintiff must present some evidence that the defendant landowner knew of the hazard and failed to take action. Courts, however, do not necessarily require plaintiffs to present evidence of a defendant’s actual knowledge. In some cases, a plaintiff may be able to meet their burden by establishing that the defendant had constructive knowledge of the hazard.plaza

Under Florida Statute section 768.0755, constructive knowledge can be established by circumstantial evidence in one of two ways:

  • The condition was present for such a length of time that the business should have known of its existence; or
  • The condition occurred frequently.

The type of evidence required to prove constructive knowledge varies depending on the surrounding circumstances. And as a recent case illustrates, establishing a defendant’s constructive knowledge may not be as simple as it initially seems.

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parking lotThe ultimate question in Florida premises liability lawsuits is whether the defendant landowner was negligent in the maintenance of their property. In order to determine if a landowner is legally negligent, courts consider a variety of factors, including the relationship between the parties, the level of duty the defendant owed to the plaintiff, the type of hazard that caused the plaintiff’s injuries, whether the defendant knew or should have known about the hazard, and whether the hazard was obvious to the plaintiff.

Each of these factors can come into play when a court is determining if the defendant landowner was negligent. In Florida, even if a plaintiff shares in the fault, the case will proceed to trial so long as the evidence suggests that defendant was also negligent.

That being said, plaintiffs have the burden to establish that their case is sufficient as a matter of law before the case is sent to a jury for resolution. In order to meet this burden, a plaintiff must present evidence of each element of their claim. If a plaintiff cannot prevail at a trial based on a lack of evidence regarding a required element, then the court will dismiss the plaintiff’s case. A recent case illustrates one plaintiff’s unsuccessful attempt to establish her case against a fast-food restaurant.

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Earlier this month, a state appellate court issued a written opinion in a personal injury case that raises interesting and important issues for Florida slip-and-fall accident victims. The case required the court to determine if the plaintiff’s case against Walmart should proceed toward trial when there was no actual evidence that the store was aware of the puddle that caused the plaintiff’s fall. Ultimately, the court concluded that Walmart’s “failure to educate” itself regarding a third party’s rental display gave rise to a potential theory of liability, and the plaintiff’s case should proceed toward trial.

Grocery AisleThe Facts of the Case

The plaintiff slipped and fell in a Walmart store near a Rug Doctor rental station. The rental station contained several carpet cleaning machines that Walmart shoppers could rent for the day. Pursuant to the agreement between Rug Doctor and Walmart, the rental kiosk was entirely self-sufficient, and no Walmart employees were trained on how to operate the kiosk or the machines.

A video of the period shortly before the plaintiff’s fall showed another customer rent a machine and struggle to get the machine into her cart. The video showed the customer tipping the machine back and forth, potentially causing water to spill; however, due to the quality of the video, no water can actually be seen. After the customer leaves, at least one Walmart employee is seen walking by the rental kiosk. A few minutes later, the plaintiff approaches the area and slips.

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Recently, an appellate court issued an opinion in a personal injury lawsuit regarding an issue that often arises in Florida slip-and-fall cases. Specifically, the case deals with the quantum of evidence a plaintiff must provide in order to present a legally sufficient case. Here, the court affirmed the trial court’s dismissal of the plaintiff’s lawsuit, finding that the plaintiff did not provide sufficient notice of the location of her injury.

Cracked PavementThe Facts of the Case

The case stemmed from an accident that the then-79-year-old plaintiff suffered when she was walking and tripped on a crack in the cement. Shortly after her accident, the woman filed a notice of lawsuit with the state’s city council. About two years after her notice of lawsuit, the plaintiff filed a complaint, alleging the city’s negligence for failing to properly maintain its sidewalk. In the lawsuit, she noted the location was “on or near” an off ramp. The city filed a motion for summary judgment, arguing that the location the plaintiff provided was insufficient to put the city on notice, and since the statute of limitations had passed, the plaintiff should not be granted leave to amend her lawsuit.

Procedural History

In the motion for summary judgment, the plaintiff argued that the city is a “sophisticated entity” and could have found the location of her injury by looking at a map. However, the trial judge granted the motion for summary judgment and agreed that, although the decision was harsh, the plaintiff’s notice was inadequate.

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Before most Florida personal injury cases reach trial, the court hears a motion for summary judgment from at least one of the parties. A motion for summary judgment asks the court to consider all of the uncontested evidence presented by both sides and make a legal ruling in favor of the moving party. Importantly, summary judgment motions can save an immense amount of time if properly filed and litigated. However, it is important to keep in mind that when there is a material issue of contested fact involved in a case, a motion for summary judgment is not appropriate.

Fast FoodA recent case illustrated a court’s unwillingness to grant summary judgment to the defendant in a premises liability case when there was a question whether the defendant had knowledge of the dangerous condition causing the plaintiff’s injury.

The Facts of the Case

The plaintiff was visiting the defendant fast-food restaurant with some family members. After placing his order, the defendant began to walk back to the area of the restaurant where the tables were. As he was walking, he thought he heard a restaurant employee call his name. The plaintiff turned around and tripped on the leg of a high chair that was protruding out into the walkway. The plaintiff filed a premises liability lawsuit against the restaurant, arguing that the restaurant’s negligent placement of the high chair resulted in him tripping, falling, and sustaining serious bodily injuries.

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Earlier this month, an appellate court issued a written opinion in a Florida premises liability lawsuit involving a plaintiff who slipped and fell as she was entering the defendant store. Ultimately, the court concluded that the plaintiff’s case should be dismissed because there was no evidence showing that the business owner had actual or constructive knowledge of the hazard causing the plaintiff’s fall.

Wet FloorThe Facts of the Case

The plaintiff was accompanying a neighbor to a nearby big-box retail store. As the two arrived, they went to get a shopping cart under the awning immediately outside the store’s entrance. As the plaintiff started to walk toward the store’s entrance, she felt her right leg give out from under her, and she fell on her left knee. The plaintiff was then taken to the hospital and subsequently filed a premises liability lawsuit against the store.

The plaintiff later testified that she did not see the liquid before she fell, that there were no store employees around the liquid at the time of the fall, and that she was not sure what the liquid was or how long it had been there. The store filed a motion for summary judgment, arguing that there was insufficient evidence to find that it had knowledge of the liquid.

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As a general rule, Florida landowners have a duty to those whom they invite onto their property to ensure that the property is reasonably safe for their visitors. While the specific level of the duty owed depends on the relationship between the parties as well as the purpose of the visit, in general, landowners must remedy known dangers and warn visitors of those dangers that cannot be fixed.

GravelWhen a visitor is injured on another party’s property, they may be entitled to compensation for their injuries through a South Florida premises liability lawsuit. In order to be successful, a plaintiff must establish that the landowner owed them a duty of care that was breached somehow by the landowner’s conduct, or by the landowner’s failure to take remedial actions. Additionally, a plaintiff must establish a causal link between the landowner’s alleged negligence and the plaintiff’s injuries. A recent case illustrates the type of analysis that courts conduct when viewing premises liability lawsuits.

The Facts of the Case

The plaintiff dropped a trailer off at the defendant tire shop with her brother. The two entered the building, arranged for the repairs, and left without incident. However, upon returning later that afternoon, the plaintiff fell outside the shop as she stepped off the pavement and onto a slightly sloped strip of gravel that ran alongside the edge of the shop. The gravel was placed alongside the building to allow water to drain away from the shop. As a result of the fall, the plaintiff broke a bone in her leg.

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Florida landowners are responsible to maintain their property in a reasonably safe condition for those whom they invite onto the premises. This includes not just individuals, but also businesses and government entities. However, not all slip-and-fall accidents will result in the landowner being liable for the injuries of the person who was injured. In order to succeed in a Florida premises liability case, the plaintiff must be able to establish, among other things, that the defendant landowner knew about the hazard that resulted in the plaintiff’s injuries.

Parking GarageIn a recent slip-and-fall case arising out of neighboring Georgia, the court had the opportunity to discuss premises liability law as it pertained to a case involving a man who fell on a patch of black ice after exiting his car in a hospital parking garage. Ultimately, the court concluded that the plaintiff failed to meet his burden of showing that the defendant knew about the black ice. As a result, the plaintiff’s case was dismissed.

The Facts of the Case

The plaintiff was dropping his wife off at the defendant hospital for a minor medical procedure. After the plaintiff dropped off his wife, he proceeded to the uncovered top level of the hospital’s parking garage.

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In most Florida personal injury cases, the judge’s role is to determine which evidence is admissible at trial, rule on any objections that are made during the course of the trial, and ultimately instruct the jury on the relevant law after the parties have rested. Judges also are responsible for hearing any post-trial motions and ruling on these motions.

Slip and Fall In most cases, once a jury returns a verdict in a Florida personal injury case, that decision is final. However, there are a few exceptions to that general rule. First, either party may be able to appeal a legal decision made by the judge during the course of the trial. For example, if one party believes that the court unfairly kept evidence from the jury’s consideration, they may appeal that ruling to a higher court.

Another example of this is when the trial judge determines that the jury’s verdict is against the manifest weight of the evidence. This is usually argued in a post-trial motion brought by the side that did not prevail at trial, arguing that the jury was wrong in its determination based on the evidence presented. In order to succeed in this type of claim, a party must show that the jury based its decision on evidence that did not exist or was not admitted. A recent case illustrates the courts’ general reluctance to override a jury’s verdict.

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