Bridging the Gap: (Fall 2010 Litigation Quarterly)

10NOV

Bridging the Gap: (Fall 2010 Litigation Quarterly)

Fla. Stat. § 768.0755 Eliminates the Ten-Year Old Standard Governing Foreign Transitory Substances in Slip-and-Fall Cases Articulated in Owens v. Publix Supermarkets, Inc. and Returns the Law to its pre-Owens State.

This Spring, Governor Charlie Crist signed into law House Bill 689, which significantly changed the “Publix” slip-and-fall law in Florida. This bill repealed the current premises liability statute, section 768.0710, Florida Statutes, and created section 768.0755. Section 768.0755 states 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.” The statute further states that actual or constructive notice can be shown by demonstrating that the condition existed for a sufficient length of time or that the condition occurred with regularity. As amended, the new law will place a higher burden on plaintiffs in slip-and-fall cases by eliminating the burden-shifting scheme created by Owens v. Publix Supermarkets, Inc.1 This will benefit business owners and operators by placing the burden of proof on the plaintiff at all stages of the case.

This new section reverses of the Florida Supreme Court’s decision in Owens, which held that once a plaintiff demonstrates that she slipped on a foreign transitory substance, the burden of proof is shifted to business owners to show that they exercised reasonable care, and appears to return substantially to the standard used before Owens. It appears that, in Florida, the ten years spent under the Owens 2 standard and section 768.0710, Florida Statutes were an intermission between spans of two nearly-identical premises liability standards.

In 2001, the Florida Supreme Court decided Owens, and eliminated the requirement that a plaintiff prove that the premises owner or operator have actual or constructive knowledge of a transitory foreign substance. The Court held that once a plaintiff established that he or she slipped on a foreign transitory substance, there is a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition, and eliminated the notice requirement.

In reaction to the Supreme Court’s decision, the Legislature adopted section 786.0710, Florida Statutes.2 This section enacted a three-part standard for slip-and-fall cases, and shifted the burden back to plaintiffs to prove that “[t]he business acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises.” In an acknowledgement of the Supreme Court’s decision in Owens, the legislature added that “actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.”

In order to discern the impact House Bill 689 and the new section of the Florida Statutes will have on slip-and-fall cases, it would be helpful to look at case law predating Owens. Before Owens, the law in Florida regarding premises liability suits favored business owners, by requiring that Plaintiffs prove that the business owner have actual or constructive knowledge of the transitory foreign substance. Furthermore, it appears that, in creating the new premises liability law, the Legislature intended to return to this pre-Owens standard. The Legislature used language substantially similar to the pre-Owens case law, in setting forth how constructive notice can be established. Under the new law, just like the pre-Owens case law, constructive notice can be established by a plaintiff through demonstrating that the dangerous condition existed for such a length of time that the premises owner should have known of the condition or that the condition occurred with regularity and was therefore foreseeable.

As mentioned above, constructive notice can be imputed from the length of time that the dangerous condition existed. In a large amount of cases, courts have been willing to allow evidence of the condition of the transitory substance to be used to preclude summary judgment for premises owners. Methods for proving length of time have included lumps in butter,4 skid or scuff marks,5 and thawing.6 However, even if the substance appears that it was there for a sufficient amount of time, the defendant may still prevail if the plaintiff cannot demonstrate that the characteristics being used to prove constructive notice were acquired while on the floor of the premises. This is vividly illustrated in the lower court decision reviewed in Owens. In the case below, it was alleged that the plaintiff slipped on a discolored banana peel. The lower court found that summary judgment for the defendant was appropriate, because the plaintiff was unable to present evidence that the discoloration occurred on the floor, and that the banana was not already discolored when it was dropped.7 Also, plaintiffs will be able to establish constructive notice when the condition occurred with regularity and was therefore foreseeable. In this category, evidence of recurring or ongoing problems that resulted from operational negligence or negligent maintenance becomes relevant. In the pre-Owens case of Wal-Mart Stores, Inc. v. Reggie, the plaintiff alleged that liquid that had seeped out of an overflowing trash can caused a slip-and-fall accident.8 The plaintiff successfully presented evidence that the trash can in question would overflow regularly, and that the Wal-Mart staff would always be notified, and would clean it within 30 minutes to an hour-and-a-half. The court held there was sufficient evidence of foreseeability, due in part to the testimony that this seepage would occur regularly.

Allowing constructive notice to be established by showing the event occurred with regularity could portend some changes in how business owners protect themselves from liability. As discussed above, under the post-2001 and pre-2010 Owens framework, as soon as the plaintiff established that he slipped and fell on a transitory foreign substance on the premises, the defendant bore the burden of establishing that the premises were maintained in a reasonably safe condition. Therefore, premises owners found it necessary to maintain detailed records of maintenance, such as “cleaning logs,” “sweep sheets” and “wet spill entries” that document how often everything is cleaned and how quickly they clean up spills.

Under the new law, business owners may wish to take a more nuanced approach to record-keeping as business owners could also face a hidden danger in these records, as they could be used to demonstrate that they had constructive notice of the transitory foreign substance as the records could potentially demonstrate that the condition at issue occurred with regularity. This is especially true with “wet spill logs,” which chronicle every previous wet spill and when they were cleaned up as plaintiffs will use prior wet spills to argue that the business owner had constructive notice. Keeping maintenance logs and other records of cleanings and maintenance would not pose this same risk as they would not demonstrate that the condition occurred with regularity. However, it would be important to note that the less evidence a business owner keeps of cleaning procedures, the less evidence the business owner would have to rebut any potential claims. Nevertheless, it is likely that some premises owners will rethink their maintenance recordkeeping in light of the constructive notice requirement being added.

Finally, it appears that the initial judicial reaction is that this law is not retroactive.9 The first inquiry in determining if a statute is retroactive is whether the legislature evinces an intent to have the law apply retroactively.10 In this case, there is no indication either way in the statutory language. Therefore, the subsequent inquiry is whether the statute affects procedural or substantive rights. In cases affecting procedural rights, retroactivity is presumed, while the opposite is true in cases affecting substantive rights.11 In the case of section 768.0755, the United States District Court for the Middle District of Florida has recently decided a case concerning this issue and held that the statute as amended did not affect the burden of proof, but instead added a new substantive element that plaintiffs are required to prove, thereby precluding the statute from having a retroactive effect.12 At this time, no other courts have addressed this issue and no binding appellate rulings exist either; however, assuming that other courts adopt the same reasoning, it appears that section 768.0755 will be applicable only to cases filed after July 1, 2010.

The new law is yet untested, and so we cannot say with absolute certainty how the courts will view and enforce the new premises liability standard. However, because the new law is such a close approximation to the pre-Owens standard, it is safe to say that the premises liability landscape will likely approximate the standards and holdings before 2001.

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Endnotes

1 802 So. 2d 315 (Fla. 2001).

2 Id.

3 § 768.0755, Fla. Stat. (2002).

4 Ramey v. Winn Dixie Montgomery, Inc., 710 So. 2d 191, 192-93 (Fla. 1st DCA 1998) (partially melted butter with lumps in it).

5 Woods v. Winn Dixie Stores, Inc., 621 So. 2d 710, 711 (Fla. 3d DCA 1993) (unidentified substance described as “very dirty,” “trampled,” “containing skid marks, scuff marks,” and “chewed up”).

6 Camina v. Parliament Ins. Co., 417 So. 2d 1093, 1094 (Fla. 3d DCA 1982) (ice cream was thawed, dirty, and splattered)

7 Owens v. Publix Supermarkets, Inc., 729 So. 2d 449 (Fla. 5th DCA 1999).

8 714 So. 2d 601 (Fla. 4th DCA 1998)

9 See e.g. Armiger v. Associated Outdoor Clubs, Inc., 35 Fla. L. Weekly D2194 (Fla.2d DCA 2010).

10 Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002).

11 Id.at 692.

12 Kelso v. Big Lots Stores, Inc., No. 8:09-cv-01286-T, 2010 WL 2889882 (M.D. Fla. July 21, 2010).