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May 21, 2014

Garcia v. Target: When Does a Business have Knowledge of a Dangerous Condition?

In 2010, the Florida Legislature made sweeping changes to Florida law regarding slip and fall liability for business owners. In that year, the legislature enacted § 768.0755 of the Florida Statutes, which formally requires that a plaintiff in a “slip and fall” case prove that the business where he or she was injured had “knowledge” of the dangerous condition that caused the fall. Since proving knowledge of a dangerous condition is now a formal statutory requirement for establishing slip and fall liability, it is important to understand how a plaintiff would go about making such a showing.

Typically, there are two ways a plaintiff can prove that a business had knowledge or “notice” of the dangerous condition. First, he or she can prove that the business had actual notice by proving an employee had been warned or otherwise informed about the condition. However, this is a difficult avenue to pursue, since an injured plaintiff does not generally have full access to the information necessary to determine which, if any, employees had been warned about a dangerous condition. In addition, employees, even if they can be identified, will generally not be forthcoming with that information. The second and more common method of establishing knowledge of a dangerous condition is known as “constructive notice.” To show “constructive notice,” a plaintiff uses circumstantial evidence related to the nature and duration of the dangerous condition that tends to show that employees who engage in reasonable inspection would have known of the dangerous condition.

In a recent decision from the Southern District of Florida, the court examined the sort of evidence that would be sufficient for showing constructive notice of a dangerous condition. In Garcia v. Target, the court determined whether a plaintiff had provided sufficient evidence to overcome a motion for summary judgment and thus let a jury determine whether there was constructive notice of a dangerous condition. In Garcia, a customer slipped and fell on a wet surface while she was leaving a Target located in Davie, Florida. Target argued that the plaintiff had failed to proffer evidence sufficient to satisfy her burden of proving constructive notice of the wet surface, in part because it had not been raining the day the plaintiff fell and the plaintiff acknowledged she had not seen the dangerous condition prior to slipping nor knew how long it had been there prior to falling.

May 14, 2014

Florida Senate and House of Representatives Pass the Aaron Cohen Life Protection Act

by Frankl Kominsky Injury Lawyers

On Tuesday, April 22, the Florida House of Representatives unanimously voted in favor of enacting the Aaron Cohen Life Protection Act, legislation that stiffens penalties for hit-and-run drivers. This follows the March 26 unanimous vote of the Florida Senate in favor of the Act, which will now go to the Governor’s desk for approval and signature. The Aaron Cohen Life Protection Act is the product of an unfortunate death of a cyclist who was hit while riding on the Rickenbacker Causeway in February 2012.

The hit-and-run driver, who was on probation for cocaine charges and was driving with a suspended license, had been carousing at a bar in Coconut Grove shortly before the 6 AM accident. After he hit the deceased person and another cyclist, the driver did not stop to offer assistance or wait for the authorities. Instead, he continued his journey home, where he concealed the damaged vehicle under a tarp. By the time he eventually surrendered to authorities, 18 hours after the accident, the police were unable to take a timely blood alcohol test. Inability to ascertain the driver’s blood alcohol level helped him avoid manslaughter charges. The driver eventually pled guilty to charges of driving with a suspended license, leaving the scene of an accident involving death, and leaving the scene of an accident involving great bodily harm. The driver was sentenced to only one year in prison and only served 264 days of the sentence.

The Aaron Cohen Life Protection Act seeks to eliminate the incentive hit-and-run drivers have in leaving the scene of an accident. The new law amends Florida’s Leaving the Scene of an Accident Law, which was enacted in 1971. The law creates a mandatory minimum sentence of three, seven, or 10 years for leaving the scene of an accident, depending on whether a person was injured, seriously injured, or fatally injured. The legislation also increases the mandatory minimum sentence for leaving the scene of an accident while under the influence of alcohol from two years to 10 years and provides for a three-year revocation of the offender’s license. By imposing these mandatory minimums, lawmakers hope that hit-and-run drivers, especially those under the influence of alcohol or drugs, will no longer see any incentive in fleeing.
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May 7, 2014

Fourth District Court of Appeal Certifies Conflict with Third District Regarding “Slip and Fall” Liability to Supreme Court of Florida

by Frankl Kominsky Injury Lawyers

Although many would believe, given the frequency of “slip and fall” accidents, that the law in the area should be well settled, Florida law regarding business owners’ “slip and fall” liability has been in considerable flux for the past decade. On February 26, the Fourth District Court of Appeals injected further confusion into the state of the law when it issued its opinion in Pembroke Lakes Mall Ltd. v. McGruder. In McGruder, the Fourth District Court of Appeal held that recent legislation altering the liability of business owners in slip and fall cases should not be applied retroactively to accidents that occurred prior to implementation of the legislation. However, this holding, as the Court in McGruder noted, is in direct conflict with an earlier Third District opinion that held that the legislation should be applied retroactively. Accordingly, the Fourth District certified the question to the Supreme Court of Florida for resolution.

This story of “slip and fall” instability began in 2001, when the Supreme Court of Florida rendered its decision in Owens v. Publix Supermarkets, Inc.. In Owens, the Supreme Court of Florida held 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 business owner did not maintain the premises in a reasonably safe condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001). Thus, “once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises.” Id. In response to this holding, the Florida Legislature in 2002 enacted § 768.0710, which eliminated the burden-shifting scheme adopted in Owens and provided that an injured “slip and fall” plaintiff must prove that the business owner “acted negligently by failing to exercise reasonable care” without the benefit of any presumption. However, actual or constructive knowledge of the transitory substance was still not required. This changed in 2010, when the Florida Legislature repealed § 768.0710 and enacted § 768.0755, aptly titled “Premises Liability for Transitory Foreign Substances in a Business Establishment.” The new statute is fundamentally the same as the former, except that the plaintiff needs to now prove that the business establishment had notice, actual or constructive, of the “dangerous condition.”

In McGruder, the plaintiff was injured in a slip and fall at a mall prior to the enactment of § 768.0755 but filed suit after the implementation of the legislation. Accordingly, the key question is whether § 768.0755 should be applied to the case or if the law outlined in § 768.0710 should apply. With respect to retroactive application of statutes, the courts of Florida apply a two-prong test: 1) did the legislature manifest clear intent for the statute to apply retroactively and 2) absent clear intent, is the statute substantive, procedural, or remedial. Generally, absent clear intent, a substantive statute is not to be applied retroactively, but a procedural or remedial statute should be applied retroactively. Although the Third District had concluded in an earlier decision that the statute was not substantive and, thus, should be applied retroactively, the Fourth District held that requiring notice altered the elements of the claim in such a fashion that the new legislation was substantive and should only be applied prospectively.
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