“Transitory 1. not lasting, enduring, permanent, or eternal. 2. lasting only a short time; brief; short-lived; temporary.” Dictionary.com
When I turned sixteen years old, I applied for a job at Publix Supermarkets. During my very brief orientation, we learned that a clean floor was one of the most important features of the store. When I started working, it was in a grand opening of a new store. I can recall that we always had at least one person walking the store and very often we would sweep the entire store with a large push broom. You would not believe the amount of stuff that accumulates when you sweep an entire grocery store.
People shopping in stores like Publix, or any store for that matter, are purposely being attracted to sales signs, price signs, overhead signs, and just about anything but the floor. Not to mention most people are pushing a cart which creates a visual obstruction to the floor in front of your feet. In any event, it was a primer in the ongoing efforts to maintain a store’s floor in a reasonably safe condition. Some establishments set themselves up for problems by darkening their rooms, or having slippery surfaces used for flooring, or using colors that make it difficult to see objects or fluids on the floor. To make matters worse, there are many establishments or even private property owns that rarely visually inspect their premises in order to maintain a safe condition for people on the property. This article deals only with transitory foreign objects on premises, and does not address the other forms of dangerous conditions on property that may exist due to negligent construction, design, maintenance (such as overgrown trees causing a line of sight visual obstruction) or potholes.
There are so many different transitory kinds of fluids and objects that can become dangerous and cause injury or damage. The law on a property owner’s liability for damages caused by transitory foreign objects on premises, whether residential or commercial, private or public, has been evolving over the years. The following is a brief summary of what the law has been in the past, and what it is today as of this writing on March 4, 2014.
All property owners owe a legal duty to their invitees to exercise reasonable care to maintain their property in a safe condition. Historically, in order to prove liability in a premises liability case, Florida law required that the Plaintiff, the person with the burden of proof, prove actual or constructive knowledge of the dangerous condition to successfully plead a case against the owner. Actual notice is when a person expressly and directly sees or hears or otherwise is made directly aware of a problem, such as an employee seeing a customer spill water on the floor. Constructive notice is quite a bit different, and is when one can infer or conclude a fact or circumstances by interpretation, for example, when there is a heavy rainstorm in front of a grocery store and customers are walking in with wet clothes, it can be deduced, inferred, or concluded that the floor inside the store will be wet.
In 2001 the Florida Supreme Court, in the case of Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001) held:
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.
Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.
Then the Florida Legislature got into the game, in response to anti-consumer lobbying efforts, and in 2002, enacted section 768.0710, Florida Statutes (2002), establishing the “Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.”
The 2002 law read as follows:
(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
(2) In any civil action for negligence involving loss, injury, or damage to a business invitee as a result of a transitory foreign object or substance on business premises, the claimant shall have the burden of proving that:
(a) The person or entity in possession or control of the business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.
Now the law was returned back to where it was before, providing that the plaintiff had the burden of proving the premises owner was negligent. An owner’s actual or constructive knowledge as an element of proof for a successful claim for liability was no longer required.
In 2010, the legislature repealed section 768.0710 and replaced it with section 768.0755. This new law went into effect on July 1, 2010. This new law is entitled “Premises liability for transitory foreign substances in a business establishment.”
The new law of premises liability for transitory foreign substances in Florida reads as follows:
768.0755 Premises liability for transitory foreign substances in a business establishment.—
(1) 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 and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) 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
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
History.—s. 1, ch. 2010-8.
The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The 2002 statute expressly stated actual or constructive notice was not a required element of proof to a claim. As you can see by reading the plain text of the current law, the plaintiff must prove that the business establishment had actual or constructive knowledge of the dangerous condition. Also, the new law does not contain the previous language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.
As a Plaintiff’s attorney representing injured people, I know it is much harder to prove liability when you must show actual or constructive notice. However, the notice requirement can be proven in court by circumstantial evidence, which means there is much more flexibility to in fact show that a property owner was negligent by virtual of the unique circumstances associated with the particular incident.
What is Circumstantial Evidence?
Black’s Law Diction defines “Circumstantial Evidence” as follows:
Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. The proof of certain facts and circumstances in a given case, from which a jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. Evidence of facts or circumstances from which the existence or non-existence of a fact in issue may be inferred. Inferences drawn from facts proved. The process of decision by which a court or jury may reason from circumstances known or proved, to establish by inference the principal fact. It means when the existence of principal facts is only inferred from circumstances. The proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Reasoning from facts which are known or proved to establish such as are conjectured to exist.
This area of circumstantial evidence is where a creative plaintiff’s lawyer can win over a jury, or insurance adjuster, in establishing that a defendant, or insured, was in fact on notice that a condition was dangerous. The example above about the rain storm making it obvious the entry way would be wet is a simple type of circumstantial proof of facts to prove a reasonable store owner would know the entry way was wet. A homeowner who lived in the same house for years who has a leaking gutter that drops water right on a tile floor area is another. A hotel operator who knows it takes 5 minutes for the mopped floor to dry is on actual and constructive notice of a dangerous condition. The particular facts of a case must be thought through to properly frame how the property owner could be legally responsible for an injury or death caused by something transient on the land. In my practice some of the most catastrophic injuries I have ever seen have come as a result of people getting injured doing simple things around a house or in a store. Sometimes it is the simple things like routine inspections, things that may sound boring, mundane or routine, but often times these simple things are what makes a property safe.
The current debate in the law, and the split among the Florida District Courts of Appeal, is whether the 2010 statutory changes apply retroactively to cases that occurred before the law was put into effect. However, with the trend in Florida, it appears during any legislative session, we could see further attempts to weaken consumer rights.