In every negligence lawsuit in Florida, there are four basic elements plaintiffs need to prove: Defendant owed plaintiff a duty of care, defendant breached that duty, the breach caused plaintiff’s injuries and plaintiff suffered monetary damages (medical bills, lost wages, etc.) as a result. Slip-and-fall lawsuits in Florida, however, are a bit trickier, thanks to a 2010 legislative update that enacted F.S. 768.055. This provision refers specifically to premises liability cases wherein there is a “transitory foreign substance” (something slippery that isn’t normally there) on the floor of a business establishment.
This statute modifies the business’s duties when invitees are hurt by transitory foreign substances. It shifts the burden of proof in constructive knowledge negligence actions fully on the plaintiff. More specifically, the proof of the “breach” element here is statutorily constrained to those cases wherein plaintiffs can prove either actual or constructive knowledge on the part of the business owner.
What does this mean? Essentially, it is not enough that you were invited onto the site for the benefit of the business and encountered a dangerous condition that resulted in an injury. What you are also responsible to prove is that the store either had “actual knowledge” (the business/ its agents created the dangerous condition or was specifically informed about it) or “constructive knowledge.” Constructive knowledge is a bit trickier. It means the business knew or should have known about the condition because either it existed for a certain period of time during which the business – in the course of using ordinary care – should have discovered it OR it was a condition that occurred with regularity so the business should have foreseen it.
Because actual knowledge is rare and sometimes difficult to prove, most South Florida slip-and-fall injury cases assert constructive knowledge. This too can be challenging to prove, so it’s important that you and your slip-and-fall injury attorney in West Palm Beach – or wherever you’re located – carefully review each element so you know whether your claim is viable. We say all this not to discourage anyone. Of course, if you’re injured, that initial consultation with an attorney is free and worth your while, especially if you’ve suffered serious injuries. Rather, we mention it so all potential clients are fully aware of what they are up against. The attorney with whom you meet should be able to give you a good sense at that initial consult whether the facts of your case align with the law to pave the way for a winnable case.
A recent Miami slip-and-fall lawsuit had a disappointing outcome for plaintiff – and again, it came down to that constructive knowledge element.
According to records with Florida’s Third District Court of Appeals, plaintiff accompanied her neighbor to a Costco store and slipped and fell in something wet outside near the entrance. It wasn’t raining at the time. Plaintiff hadn’t noticed anything wet before she fell (and never actually identified the substance except to say it was “wet”). No employees were nearby when she fell and she produced no evidence that anyone else fell at that location at any point previous to her own fall. Plaintiff suffered a broken knee cap, and later sued the store for negligence.
Defendant store moved for summary judgment, arguing a lack of genuine material fact about whether it had constructive knowledge of the alleged hazard. Trial court agreed and granted the request. The 3rd DCA affirmed. There was no evidence of actual notice, and no indication was given that the store should have known about the substance prior to her fall.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC., Attorneys at Law, by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Lago v. Costco Wholesale Corporation, Dec. 13, 2017, Florida’s 3rd District Court of Appeal
More Blog Entries:
Florida Appeals Court Reverses $4M Medical Malpractice Damage Award, May 28, 2018, West Palm Beach Injury Attorney Blog