Retroactivity of Section 768.0755, Florida Statutes

Florida business owners received a helpful ruling from the Third District Court of Appeal in Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d DCA 2013). This case was the first opinion from a Florida District Court of Appeal to address head-on whether section 768.0755, Florida Statutes, may be applied retroactively, as a procedural statute, to cases pending when it was enacted. The case held that “section 768.0755 is procedural in nature, and applies retroactively.” The Third District therefore affirmed the grant of a summary judgment in favor of the county, in a case where the plaintiff had fallen at Miami International Airport. The court found that section 768.0755 returned Florida law to its status pre- Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), “and provides that a person who slips and falls on a transitory foreign substance in a business establishment1 must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.1” Kenz, 116 So. 3d at 463 (citing Fla. Stat. § 768.0755 (1)).

The Third District opined that the statute superseded section 768.0710, Florida Statutes, even for pending claims. Under that superseded statutory section, actual or constructive knowledge of the transitory foreign substance or object was not a required element of proof of a plaintiff’s negligence claim. Thus, section 768.0755 will mean that an injured party must show more than that a business “should have” known of the existence of a dangerous condition—a plaintiff will have to show actual (or constructive) knowledge.

The same day it issued its Kenz opinion, the Third District also issued a per curiam affirmance in another case dealing with section 768.0755, in Publix Supermarkets, Inc. v. Cuervos, 112 So. 3d 643 (Fla. 3d DCA 2013). While in that case the affirmance was in favor of a patron injured in grocery store slip-and-fall, the case appeared to suggest—by citation to another opinion involving the sufficiency of the record—that the Third District was only affirming the jury verdict in favor of the plaintiff and against the store because the store had failed to present an adequate record on appeal.1 The Cuervos per curiam affirmance will have no persuasive or controlling value, while the favorable Kenz opinion will be controlling on the Circuit Courts of Miami-Dade and Monroe Counties, and persuasive in counties under other District Courts of Appeal. Indeed, if the District Court in a trial court’s District has not spoken on the issue, the trial courts in all Districts will be required to follow the Kenz decision and it will be controlling precedent until the District Court in that District decides the issue. Currently, no District Court of Appeal other than the Third has decided this issue.2
However, Cole, Scott, & Kissane P.A., is currently involved in an appeal of the same issue, in a condominium slip-and-fall case in which an appeal of a jury verdict is pending in the Fifth District. There are two primary issues raised in the Initial Brief filed on behalf of the condominium client: (i) whether section 768.0755 should or may be applied retroactively and (ii) what standard of proof/burden of proof does it require a plaintiff to meet at trial? A sub-issue is whether section. 768.0755 (which repealed section 768.0710) is procedural or substantive in nature. The Initial Brief has been filed, but the Answer Brief has yet to be filed.

1 In fact, the Third District later issued a per curiam affirmance citation opinion, in Garland v. TJX Companies, Inc., 114 So. 3d 298 (Fla. 3d DCA 2013), affirming a summary judgment in favor of a business defendant, and affirming an order denying leave to amend the plaintiff’s complaint, citing to Kenz.
2 In a recent order granting summary judgment, the Middle District of Florida (Trial Court) in May adroitly evaded the issue of which version of the statute would apply. See Oken ex rel. J.O. v. CBOCS, Inc., 8:12-CV-782-T-33MAP, 2013 WL 2154848 (M.D. Fla. May 17, 2013) (“This Court need not determine which statute applies in the instant case, in which the cause of action accrued before the repeal of section 768.0710, because the Court finds that Cracker Barrel’s Motion for Summary Judgment is due to be granted regardless of which burden is imposed upon Oken in this negligence action. Specifically, summary judgment is appropriate because the record is undisputed that Cracker Barrel did not breach its duty to Oken”).


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