If you watch America’s Funniest Home Videos, an awful lot of the humor is some poor fellow slips and falls. If you have ever been sued by someone claiming a slip and fall on your construction site, you realize that this is not funny at all. Certainly, if a contractor negligently maintains his job site in such an unsafe manner as to be a hazard to the public, there should be some consequence. On the other hand, we know there are people who purposely fake a slip and fall in order to obtain a sizeable verdict. Because of the way our court system works, these types of lawsuits can be very scary.
The Florida Legislator did a good thing by passing Florida Statute 768.0755, Premises Liability for Transitory Foreign Substances in a Business Establishment. This statute attempts to bring some common sense back to the court room. Prior to 2001, there was a burden of proof required on the part of the person who slipped and fell on a transitory foreign substance, the injured person had to prove that the business had actual or constructive knowledge of the dangerous condition and that the condition existed for such a length of time that in the exercise ordinary care, the premises owner should have known of it and taken action to remedy it. That makes sense. If you drop a banana on the floor, and then you slip on the banana, you can hardly blame the business owner for not cleaning it up prior to your fall. Who could mess that up?
In 2001, the Florida Supreme Court ruled in Owens, v Publix Supermarkets that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition, and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition. The burden of proof was then shifted to the business owner to prove that he exercised reasonable care under the circumstances. So if someone drops a banana and then slips on the banana, the business owner is presumed liable unless he can prove to a jury that he is not liable.
Florida Statute 768.0755 tries to turn the litigation clock back prior to the 2001 Supreme Court decision. The person who falls must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing either (1) that the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition, or (2) that the condition occurred with regularity and was therefore foreseeable. The injured party has to show where the business owner was negligent. It is a return to some common sense in slip and fall cases that may be unbelievable, but they are not funny.