Petrogram - Summer 2014 - (Page 19)

Legal BRIEF Florida's Slip and Fall Statute Up in the Air By Lourdes E. Wydler, Esq., Marrero & Wydler M 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. Alpha Analytics, Inc. An Environmental Laboratory 9645 E. Colonial Dr., Suite 114 Orlando, Florida 32817 Petroleum-related analytical specialists since 1993. (407) 382-5742 NELAP Certification #E83806 491466_Alpha.indd 1 Petrogram | Summer 2014 | 6:49:51 PM 9/1/10 19

Table of Contents for the Digital Edition of Petrogram - Summer 2014

Chair’s Perspective
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/

Petrogram - Summer 2014