Petrogram - Summer 2014 - (Page 19)
and Fall Statute
Up in the Air
By Lourdes E. Wydler, Esq., Marrero & Wydler
ost negligence cases against gasoline stations and convenience stores arise from slip and fall accidents. In 2010, the
Florida Legislature enacted FL Stat. §768.0755 entitled,
"Premises liability for transitory foreign substances in a business establishment." This slip and fall statute provides that the "injured person
must prove that the business establishment had actual or constructive
knowledge of the dangerous condition and should have taken action
to remedy it." Since the new slip and fall statute's enactment, it is
harder to prove a business was negligent. Now, the legal question in
Florida is whether the statute will apply retroactively.
Two appellate courts have issued rulings, but they conflict. The
Third District Court of Appeal in Kenz v. Miami-Dade County, 116 So.
3d 461 (FL 3rd DCA 2013) held that §768.0755, FL Stat. (2010)
applied retroactively to cases pending when it took effect because
the change in the slip and fall status was procedural in nature rather
than substantive. The court reasoned that the new statute did not
create a new element to a cause of action for negligence. Rather, by
requiring that a plaintiff prove actual or constructive knowledge, the
statute codifies a "means and method" by which a plaintiff can show
a business establishment has breached its duty.
Finding the opposite, the Fourth District Court of Appeal in
Pembroke Lakes Mall, LTD v. McGruder, 2014 WL 714706 (FL 4th
DCA 2014), held that §768.0755, FL Stat. (2010) would not be applied
retroactively. The shift from the previous slip and fall statute enacted
in 2002 to its current version was far more than a simple procedural
change to a plaintiff's burden of proof. Under the 2002 statute, an
injured person could succeed in a slip and fall case by showing the
business failed to use reasonable care in maintenance, inspections,
repairs, warnings or mode of operations without showing any kind
of knowledge. Under the 2010 statute, the same plaintiff would be
unable to successfully assert such a cause of action despite having
compelling evidence like having records showing poor maintenance
of a property. The plaintiff must prove either actual or constructive
knowledge of the dangerous condition. According to the Fourth District,
because a Plaintiff's substantive rights are affected by imposing a
knowledge element into a slip and fall claims, §768.0755, FL Stat.
(2010) cannot be applied retroactively.
The Fourth District Court
of Appeal opinion in McGruder
certified the conflict with the Third District Court of Appeal's Kenz
decision to the Florida Supreme Court. Today, trial courts in MiamiDade and Monroe counties follow Kenz. In Broward and Palm Beach
counties the trial courts adhere to McGruder. This means that businesses in Miami-Dade and Monroe counties can apply the statute
retroactively, while those businesses in Broward and Palm Beach
counties are not afforded the same advantage. The trial courts in
all of the other counties can follow either decision until the Florida
Supreme Court resolves the conflict.
Depending on where a business is located could make or break
a case because of the current conflicting law in the state of Florida.
Indeed, imposing the requirement on plaintiffs to prove some sort of
knowledge by the business is helpful to any defense especially if it can
be applied retroactively. A state-wide adoption of the Third District's
opinion in Kenz by the Florida Supreme Court would indisputably
benefit convenience stores and gas stations in slip and fall accidents
that happened before July 1, 2010.
Lourdes E. Wydler, Esq. is a partner at Marrero & Wydler, a law firm
concentrating its practice in personal injury, negligent security, liquor
liability, and employment law. email@example.com.
Alpha Analytics, Inc.
An Environmental Laboratory
9645 E. Colonial Dr., Suite 114
Orlando, Florida 32817
specialists since 1993.
NELAP Certiﬁcation #E83806
Summer 2014 | 6:49:51 PM
Table of Contents for the Digital Edition of Petrogram - Summer 2014
2014 Sunshine Food, Beverage & Fuel Expo
2014 Legislative Days
Stop the Loss! Reducing and Preventing Shrinkage at C-Stores, Pumps
Beware, Organized Retail Crime, We’re Watching You
The Trucking Industry’s Top 10
Florida’s Slip and Fall Statute Up in the Air
Calendar of Events
FPMA Featured Advertiser Marketplace
Index of advertisers/advertiser.com
Petrogram - Summer 2014
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